Kerala High Court
Baburaj vs Krishnakumar on 2 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
MACA NO. 913 OF 2010
AGAINST THE ORDER/JUDGMENT IN OP(MV) 261/2006 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD
APPELLANTS/PETITIONERS:
1 BABURAJ,
(DIED)
2 SANTHA, W/O. BABURAJ,
MUNDATHOLI HOUSE, CHELAKKARA (VIA), THONOORKKARA P.O.,
VADAKKANCHERRY, THRISSUR.
3 PRAVEEN RAJ, S/O. BABURAJ
-DO-
4 KAVEEN S/O. BABURAJ
-DO-
5 SAVIN, S/O. BABURAJ
-DO-
BY ADVS.
SRI.SHEJI P.ABRAHAM
SMT.GISA SUSAN THOMAS
RESPONDENTS/RESPONDENTS:
1 KRISHNAKUMAR, S/O.VASUDEVAN,
POONANIKKAL HOUSE, THONOORKKATA VILLAGE,, KIZHAKKUMURI,
CHELAKKARA, THRISSUR.
2 CHOLAMANDALAM M.S.GENERAL INSURANCE
CO. LTD., IIND FLOOR, ACEL ESTATE, CHITTOOR ROAD, COCHIN-
11, POLICY CERTIFICATE NO., KTC 00351608-000-00 VALID
6.7.2004 TO 4.7.2005).
BY ADVS.
MACA NO. 913 OF 2010 2
SRI.P.JACOB MATHEW
SRI.MATHEWS JACOB SR.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 913 OF 2010 3
JUDGMENT
The deceased appellant was the original petitioner in
OP(MV) No.261 of 2006 on the file of the Motor
Accidents Claims Tribunal, Ottapalam. Pending the claim
petition, the 1st appellant died on 25.5.2006 and the
appellants 2 to 5 were impleaded as supplemental
petitioners 2 to 5 before the Tribunal. The respondents in
the appeal were the respondents before the Tribunal. The
parties are, for the sake of convenience, referred to as
per their status in the claim petition.
2. The concise case of the petitioners in the claim
petition, relevant for the determination of the appeal are:
on 21.5.2005, while the original petitioner was walking
through Chelakkara - Pazhyannur road, when he reached
Meppadam, a motor cycle bearing Reg.No.KL-8 AB-1186
driven by the 1st respondent in a rash and negligent
manner hit the original petitioner. He sustained serious
injuries including a communated fracture clavicle right,
fracture 3rd and 4th metacarpal right and communated
fracture ulna D/4 undisplaced. He was treated as an
inpatient for a period of two days. The offending motor
cycle was insured with the 2nd respondent. The original
petitioner was a business man by profession and earning
a monthly income of Rs.6,000/-. The original petitioner
was incapacitated for a period of three months. It was
contended that the respondents 1 to 3 were jointly and
severally liable to pay compensation, which was
quantified at Rs.2,42,500/-, but limited to 1,50,000/-.
3. The 1st respondent remained ex parte. The 2nd
respondent filed a written statement, disputing the age,
income and occupation of the original petitioner.
However, the 2nd respondent admitted that the
motorcycle had a valid insurance policy.
4. Pending the original petition, the original
petitioner expired on 25.5.2006 and the supplemental
petitioners 2 to 5 were impeaded as per order in
I.A.No.1879 of 2007 dated 31.7.2007, and consequential
amendments were carried out in the claim petition.
5. The petitioners 2 to 4 marked Exts.A1 to A9 in
evidence.
6. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed the
claim petition in part, by permitting the petitioners 2 to 5
to realise an amount of Rs.25,400/- with interest @ 8%
per annum from the date of filing of the claim petition till
the date of realization and Rs.750/- as costs from the
respondents. The 2nd respondent was directed to pay the
compensation.
7. Dissatisfied with the quantum of compensation,
the petitioners 2 to 5 are in appeal.
8. Heard, the learned counsel appearing for the
appellants/petitioners and the learned counsel appearing
for the 2nd respondent.
9. The sole question that emanates for
consideration in this appeal is whether the quantum of
compensation awarded by the Tribunal is reasonable and
just.
10. A constitution Bench of the Hon'ble Supreme
Court in National Insurance Company Ltd. v. Pranay
Sethi [(2017) 16 SCC 680), has held that Section 168
of the Motor Vehicles Act, 1988, deals with the concept of
'just compensation' and the same has to be determined on
the foundation of fairness, reasonableness and
equitability on acceptable legal standards. The
conception of 'just compensation' has to be viewed
through the prism of fairness, reasonableness and non-
violation of the principle of equitability.
11. Ext.A5 Final Report filed by the police
substantiates that the accident occurred solely due to the
negligence on the 1st respondent. Admittedly, the 2 nd
respondent was the insurer of the vehicle. Therefore, it is
the 2nd respondent who is liable to indemnify the 1st of his
liability to pay the compensation to the petitioners.
12. It is averred in the claim petition that the
deceased original petitioner was a business man by
profession and earning a monthly income of Rs.6,000/-
per month. However, the Tribunal, for the want of
material, fixed the notional income of the original
petitioner at Rs.2,500/- per month.
Notional Income
13. The Hon'ble Supreme Court in
Ramachandrappa vs. Manager, Royal Sundaram
Alliance Insurance Company Ltd., (2011 (13) SCC 236)
has fixed the notional income of a Coolie Worker in the
year 2004 at Rs.4,500/- per month.
14. Following the parameters laid down in the
aforecited decision and considering the fact that the
original petitioner was a business man by profession and
that the accident occurred in the year 2005, I fix the
notional income of the original petitioner at Rs.5,000/-
per month.
Loss of earnings
15. In view of the refixation of the notional income
of the original petitioner and that he treated as an
inpatient for a period of three months, I enhance the
compensation for 'loss of earnings' at Rs.15,000/- instead
of Rs.7,500/- awarded by the Tribunal.
Pain and sufferings
16. Although the petitioners had claimed an amount
of Rs.15,000/- under the head 'pain and sufferings', the
Tribunal awarded only at Rs.8,000/-. It is seen from
Ext.A2 wound certificate and Ext.A6 discharge summary
that the original petitioner had sustained three fractures
and was hospitalised for a period of two days and also
indisposed of for a period of three months. Considering
the said factors, I hold that the petitioners are entitled for
compensation under the head 'pain and sufferings' at
Rs.15,000/-, i.e an enhancement of Rs.7,000/-.
17. The petitioners had claimed an amount of
Rs.10,000/- towards 'loss of amenities'. However, the
Tribunal only awarded an amount of Rs.4,000/-, which I
feel is on the lower side. Hence, I enhance a further
amount of Rs.2,500/-.
18. With respect to the other heads of
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
19. On an over all re-appreciation of the pleadings
and materials on record, the law laid down in the
aforecited decisions, I am of the opinion that the appeal is
to be allowed by enhancing the compensation under the
aforementioned heads.
In the result, I allow the appeal by enhancing the
compensation by a further amount of Rs.17,000/- (i.e.
Rs.7,500/- for loss of earnings, Rs.7,000/- for pain and
sufferings and Rs.2,500/- for loss of earnings) with
interest at the rate of 8% per annum on the enhanced
compensation from the date of petition till the date of
deposit, after excluding the period for 228 days , i.e., the
period of delay in filing the appeal and as ordered by this
Court on 12.11.1999 in I.A.No.1175 of 2010, and
proportionate costs. The 2nd respondent shall deposit
the enhanced compensation with interest and
proportionate costs within a period of two months from
the date of receipt of a certified copy of this judgment.
The Tribunal shall disburse the enhanced compensation
to the appellants/petitioners in accordance with law.
Sd/-
C.S.DIAS,
JUDGE
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