Kerala High Court

C.Devarajan vs Shaji on 22 July, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
   THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
                       MACA NO. 790 OF 2008
AGAINST THE AWARD IN OP(MV)NO. 360/2002 OF I ADDITIONAL MOTOR
                 ACCIDENT CLAIMS TRIBUNAL ,KOLLAM
APPELLANT/PETITIONER:

          C.DEVARAJAN, AGED 57,
          S/O.E.K.CHAKRAPANI,
          ELLAR NIVAS,, MAYYANAD P.O.,
          KOTTIYAM, KOLLAM.

          BY ADVS.
          SRI.V.S.CHANDRASEKHARAN
          SMT.BEATRICE FERIA
          SMT.LEKSHMI SWAMINATHAN
          SMT.PRIYA DEVI.P


RESPONDENTS:

    1     SHAJI
          MANGALALAYAM, KADAPPAKKADA,
          KOLLAM DISTRICT.,
          (REG.OWNER OF KL 2A/6992 HERO HONDA).

    2     REGHUNATHAN
          S/O RAGHAVAN,
          SIVAPAL NIVAS, NEAR MAYYANAD H.S.,
          MAYYANADU P.O.,
          (DRIVER OF KL 2A/6992 HERO HONDA).

    3     DIVISIONAL MANAGER
          NATIONAL INSURANCE COMPANY LTD, KOLLAM,
          (INSURER OF KL 2A/6992 HERO HONDA).

          BY ADV SRI.LAL GEORGE
    THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA.No.790 of 2008

                                    2




                              C.S.DIAS,J
              ------------------------
                     MACA No.790 of 2008
               - - - - - - - - - - -- - - - - - - - - - - - -
             Dated this the 22nd day of July, 2021

                           JUDGMENT

The appellant was the petitioner in OP (MV)

No.360 of 2002 on the file of the I Additional Motor

Accidents Claims Tribunal, Kollam. 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 19.10.2001, while

the appellant was riding his Scooter through Kollam-

Thiruvananthapuram National Highway, a Hero

Honda motorcycle bearing registration No.KL 2A/

6992 (offending vehicle) ridden by the 2 nd respondent

in a rash and negligent manner hit the Scooter of the

appellant. The appellant sustained serious injuries in MACA.No.790 of 2008

the accident including a compound fracture on the

left leg ankle metatarsal. The offending vehicle was

owned by the 1st respondent and insured with the 3rd

respondent. The appellant was the Branch Manger of

Asian Steel Industries, Calicut and was earning a

monthly income of Rs.12,000/-. The appellant

contended that the respondents were jointly and

severally liable to pay him compensation, which he

quantified at Rs.1,11,000/-.

3. The respondents 1 and 2 filed a written

statement contending that the claim petition was not

maintainable and that the appellant had only

sustained minor injuries. It was admitted that the

offending vehicle was ridden by the 2nd respondent .

Nevertheless, it was contended that the 2nd

respondent was not negligent in causing the accident,

but it was due to the negligence of the appellant that MACA.No.790 of 2008

the accident had happened.

4. The 3rd respondent filed a written statement

admitting that the offending vehicle had a valid

insurance policy. None the less, it was contended that

in the FIR, the number of the offending vehicle was

different.

5. The appellant examined a witness as PW1

and marked Exts.A1 to A18 series in evidence.

6. The Tribunal, after analysing the pleadings

and materials on record, dismissed the claim petition

for the reason that the vehicle number mentioned in

the FIR was KL 2A/ 7371, but in the final report it was

mentioned as KL 2A/ 6996.

7. Aggrieved by the dismissal of the claim

petition, the petitioner/appellant is in appeal.

8. Heard Smt.Lakshmi Swaminathan, the

learned counsel for the appellant/petitioner and the MACA.No.790 of 2008

Sri.Lal George, the learned counsel appearing for the

3rd respondent-insurance company.

9. The questions that arise for consideration in

the appeal is (i) whether the Tribunal was justified in

dismissing the claim petitioner and (ii) whether the

appellant is entitled for any compensation?

10. The specific case of the appellant in the claim

petition was that while he was driving his Scooter

along the Kolam - Thiruvananthapuram National

Highway, a Hero Honda motorcycle bearing

registration No.KL 2A/6992 ridden by the 2 nd

respondent in a rash and negligent manner hit his

Scooter. The offending vehicle was owned by the 1 st

respondent and insured with the 3rd respondent.

11. However, in Ext.A1 FIR registered by the

Kollam Traffic Police in Crime No.562 of 2001, the

offending vehicle's number was shown as KL 2 A/ MACA.No.790 of 2008

7371. Nevertheless, the police in Ext.A2 final report

found that it was due to negligence on the part of the

2nd respondent who rode the vehicle bearing

registration No.KL 2A/6992 that the accident

occurred.

12. The appellant had produced Ext.A7 judgment

of the Judicial First Class Magistrate Court-1, Kollam,

which substantiates that the 2nd respondent had

pleaded guilty to the charges framed against him for

the offences punishable under Section 279 and 338 of

the IPC r/w section 134 (a) and (h) of the Motor

Vehicles Act, 1988, and he was sentenced to pay a

fine of Rs.1,750/-. Therefore, it is proved beyond any

semblance of doubt that the accident was caused on

account of the negligence of the 2nd respondent, who

rode the offending vehicle in a rash and negligent

manner, which the respondents have admitted. MACA.No.790 of 2008

13. It is only on the basis of discrepancy in

Ext.A1 FIR that the Tribunal dismissed the claim

petition, for which the appellant cannot be found fault

with. The course adopted by the Tribunal, according

to me, is perverse and erroneous. The Tribunal ought

to have looked into Ext.A2 final report and Ext.A7

judgment, which proves that the 2nd respondent was

negligent in riding the offending vehicle, which is the

case of the appellant in the claim petition and which

stands corroborated by the evidence of PW1.

Therefore, I set aside the findings in the impugned

award holding the appellant has not proved that there

was negligence on the part of the 2nd respondent.

14. Undisputedly, the 1st respondent was the

owner and the 3rd respondent was the insurer of the

offending vehicle. Therefore, I hold that it is the 3 rd

respondent who is liable to indemnify the liability of MACA.No.790 of 2008

the 1st respondent to pay the compensation to the

appellant.

15. Now coming to the question of reasonable

and just compensation.

16. The appellant had claimed that he was a

Branch Manger in a Private Company and earning a

monthly income of Rs.12,000/-. The appellant had

produced Ext.A14 Saral Form to substantiate his

income. However, the said Saral Form was submitted

on 15.02.2002 i.e., nearly four months after the

accident. Hence, the said document cannot be taken

on its face value to fix the income of the appellant.

17. The appellant had also produced Ext.A15

salary certificate to prove that he was earning an

annual income of Rs.74,100/-. The said certificate is

unsigned and is not corroborated by its author.

Therefore, I decline to accept the said document to fix MACA.No.790 of 2008

the income of the appellant.

18. The Hon'ble Supreme Court in

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [(2011) 13

SCC 236] has fixed the notional income of a Coolie

worker in the year 2004, at Rs.4,500/- per month.

Notional income

19. Following the ratio in Ramachandrappa

(supra) and taking note of the fact that the accident

occurred in the year 2001, I hold that the appellant's

notional income can safely be fixed at Rs.3,000/- per

month. Hence, I re-fix the notional income of the

appellant at Rs.3,000/- per month.

Loss of earnings

209. It is on record that the appellant had

sustained a compound fracture on his left leg ankle

metatarsal. It is also proved by Ext.A12 discharge bill MACA.No.790 of 2008

that the appellant was treated as an in-patient for a

period of six days. However, there is no document on

record to prove that the appellant had suffered any

permanent disability. Nevertheless, as the appellant

had sustained a fracture and was treated as an in-

patient for a period of six days and that he had

claimed an amount of Rs.14,000/- towards 'loss of

earnings', I hold that the amount claimed is

reasonable. Hence, I fix the appellant's 'loss of

earnings' at Rs.14,000/- as claimed in the claim

petition.

Medical expenses

21. The appellant has produced Ext.A8 to A11

and Ext.A17 to A18 series medical bills. On adding the

total amount in the said medical bills, it is found that

the appellant has expended an amount of Rs.6,086/-

towards 'medical expenses', which he is entitled to MACA.No.790 of 2008

get reimbursed. Therefore, I hold that the appellant is

entitled for 'medical expenses at Rs.6,086/-

Byestander expenses

22. As the appellant was treated as an in-patient

for a period of six days, I hold that the appellant is

entitled for 'byestander expenses' at Rs.200/- per day

for six days, i.e. an amount of Rs.1,200/- .

Other heads of compensation

23. Taking note of the injury sustained by the

appellant, that he was treated as an in-patient for a

period of six days and that he was indisposed for a

period of more than four months, I hold that the

appellant is entitled for compensation under the head

'pain and sufferings' and 'loss of amenities' at

Rs.10,000/- each, totalling to an amount of

Rs.20,000/-. I also feel that a reasonable amount of

Rs.1,500/- has to be awarded towards 'extra MACA.No.790 of 2008

nourishment', Rs.500/- towards 'damage to clothing'

and Rs.1,500/- towards 'transportation'.

24. On an overall re-appreciation of the

pleadings and materials on record, I hold that the

appellant/petitioner is entitled for compensation as

recalculated above and given in the table below for

easy reference.

Sl.   Heads of claim                                    Amounts modified and
No                                                    recalculated by this Court
1     Loss of earning                                         14,000/-

2     Transport                                                1,500/-

3     Damages to clothing                                       500/-

4     Bye-stander expenses                                     1,200/-

5     Expenses for extra nourishment                           1,500/-

6     Medical expenses                                         6,086/-

7     Compensation for pain and sufferings                    10,000/-

8     Compensation for loss of amenities                      10,000/-
                                                              44,786/-

In the result, the appeal is allowed, by setting

aside the impugned award passed by the Tribunal and

ordering that the appellant is entitled for a MACA.No.790 of 2008

compensation of Rs.44,786/- with interest at the rate

of 6% per annum from the date of petition till the date

of deposit, after deducing 289 days i.e., the period of

delay in preferring the appeal and as ordered by this

Court on 16.10.2019 in C.M.Appl.No.787 of 2008,

and proportionate costs. The 3rd respondent shall

deposit the compensation amount awarded in this

appeal before the Tribunal with interest and costs

within a period of two months from the date of receipt