Kerala High Court
Vinod P.B vs Benny Sebastian & Anr on 2 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
MACA NO. 2718 OF 2009
AGAINST THE AWARD DATED 06.04.2009 IN OP(MV) NO.263/2006 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD
APPELLANT/PETITIONER:
VINOD P.B.,
S/O. BHASKARAN,
PARAKKAL HOUSE, MULLURKKARA P.O.,
VAZHAKODE DESOM, VALAVU-680 583,
VADAKKANCHERRY.
BY ADV SRI.SHEJI P.ABRAHAM
RESPONDENTS/RESPONDENTS:
1 SUNNY SEBASTIAN,
S/O. SEBASTIAN,
PURAYAMKUZHIYIL HOUSE, CROSS VALLY ESTATE,
PANJAL P.O., CHEWRUTHURUTHY, THRISSUR.
2 THE NEW INDIA INSURANCE CO. LTD.
KOLLANNUR DEVASSY SMARAK BLDG.,
PALACE ROAD, THRISSUR.
BY ADV SRI.N.S.MOHAMMED USMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.2718/2009
-:2:-
Dated this the 2nd day of August, 2021
JUDGMENT
The appellant was the petitioner in O.P (MV)
No.263/2006 on the file of the Motor Accidents Claims
Tribunal,Ottapalam. The respondents in the appeal
were the respondents before the Tribunal.
2. The facts in brief, relevant for the
determination of the appeal, are: on 14.07.2005, while
the appellant was riding his motorcycle bearing
registration No. KL-8 U-3594 from Vadakkancherry to
Mullurkkara, a Tata Sumo vehicle bearing registration
No. KL-8 AD 1400, driven by the first respondent in a
rash and negligent manner, hit the motorcycle. The
first respondent was also the owner of the vehicle. The
vehicle was insured with the second respondent. The
appellant was a headload worker by profession and
earning a monthly income of Rs.4,500/-. The appellant
sustained fractures and was treated as an inpatient for
M.A.C.A.No.2718/2009
a period of five days. The appellant suffered a
permanent disability. Hence, the appellant claimed a
total compensation of Rs.2,40,750/- from the
respondents, which was limited to Rs.1,50,000/-.
3. The first respondent though contested the
proceedings, did not file any written statement.
4. The second respondent filed a written
statement refuting the allegations in the claim petition.
The second respondent contended that the accident
occurred on account of the negligence of the
appellant. It was also stated that the amount of
compensation claimed was excessive.
5. The appellant was examined as PW1 and
Exts.A1 to A9 were marked in evidence. The
respondents produced and marked Exts.B1 to B3 in
evidence.
6. The Tribunal, after analysing the pleadings
and materials on record, allowed the claim petition in
part by permitting the appellant to realise an amount
M.A.C.A.No.2718/2009
of Rs.35,060/- with interest and costs from the second
respondent.
7. Dissatisfied with the quantum of
compensation awarded by the Tribunal, the
appellant/petitioner is in appeal.
8. Heard the learned counsel appearing for the
appellant/petitioner and the learned counsel appearing
for the second respondent-insurance company.
9. The sole question that emerges for
consideration in the appeal is whether the quantum of
compensation awarded by the Tribunal is reasonable
and just.
10. Ext.A5 charge-sheet filed by the police
substantiates that the accident occurred on account of
the negligence of the first respondent. Undisputably,
the second respondent was the insurer of the vehicle
and therefore, the second respondent is liable to
indemnify the liability of the first respondent.
11. The appellant had contended that he was a
M.A.C.A.No.2718/2009
headload workers by profession and earning a monthly
income of Rs.4,500/- per month. The Tribunal fixed
the notional income of the appellant at Rs.3,000/- per
month.
12. In Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236], the Hon'ble Supreme Court has
fixed the notional income of a coolie worker in the year
2004, at Rs.4,500/- per month.
Notional income:
13. Following the parameters in the afore-cited
decision and considering the fact that the accident was
occurred in 2005, I am of the considered opinion that
the appellant's notional income has to be re-fixed at
Rs.4,500/- per month as claimed in the claim petition.
Loss of earnings:
14. It is proved that the appellant was indisposed
for a period of two months. The Tribunal, on the basis
of the notional income fixed, awarded the appellant an
M.A.C.A.No.2718/2009
amount of Rs.6,000/- as 'loss of earnings'. In view of
the re-fixation of the notional income of the appellant
at Rs.4,500/- per month, I re-fix the 'loss of earnings' of
the appellant at Rs.9,000/- i.e., an enhancement by
Rs.3,000/-.
Loss due to disability:
15. The Tribunal had fixed the permanent
disability of the appellant at 2%. In view of the
re-fixation of the notional income of the appellant at
Rs.4,500/- per month and taking note of the fact that
the appellant was 26 years at the time of accident and
the relevant multiplier being '17', I re-fix the
compensation for 'loss due to disability' at Rs.18,360/-
instead of Rs.12,960/- awarded by the Tribunal i.e., an
enhancement by Rs.5,400/-.
Loss of amenities:
16. Taking note of the fact that the appellant had
sustained fractures and was indisposed for a period of
two months and suffered 2% permanent disability, I
M.A.C.A.No.2718/2009
hold that the appellant is entitled for compensation
under the head 'loss of amenities' and 'pain and
sufferings' by a further amount of Rs.10,000/- .
17. With respect to the other heads of
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
18. On an overall re-appreciation of the pleadings
and materials on record and the law referred to in the
afore-cited decisions, I am of the firm opinion that the
appellant/petitioner is entitled for enhancement of
compensation as modified and re-calculated above i.e.,
an enhancement by a further amount of Rs.18,400/-
i.e., Rs.3,000/- towards 'loss of earnings', Rs.5,400/-
towards the 'loss due to disability' and Rs.10,000/-
towards 'loss of amenities' and 'pain and sufferings'.
In the result, the appeal is allowed in part by
enhancing the compensation by a further amount of
Rs.18,400/- with interest at the rate of 7% per annum
from the date of petition till the date of deposit, after
M.A.C.A.No.2718/2009
deducting the period of 114 days i.e., the period of
delay in filing the appeal and as ordered by this Court
on 02.07.2021 in C.M.Appln. No.3205/2009, and
proportionate costs. The second respondent is directed
to deposit the enhanced compensation within a period
of sixty days from the date of receipt of a certified
copy of this judgment. The Tribunal shall disburse the
enhanced compensation to the appellant/petitioner in
accordance with law.
All pending interlocutory applications will stand
closed.
Sd/-
C.S.DIAS,JUDGE
DST //True copy/
P.A.To Judge
