Kerala High Court
Sasi vs Anto K.T & Others 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
M.A.C.A. NO.1209 OF 2009
(AGAINST THE JUDGMENT IN OP(MV)No.1113/2005 DATED
27.11.2008 ON THE FILE OF THE MOTOR ACCIDENTS
CLAIMS TRIBUNAL, IRINJALAKUDA, THRISSUR)
APPELLANT/PETITIONER IN O.P.(M.V):
SASI, S/O.KOCHANDY,
OTTARATTIL HOUSE, MARATHOMPILLY DESOM,
KODAKARA VILLAGE, KODAKARA P.O.,
MUKUNDAPURAM TALUK, THRISSUR DIST.
BY ADVS.
SRI.P.V.BABY
SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS IN O.P.(M.V)::
1 ANTO K.T,
KANDAMKULATHY HOUSE, POTTA, CHALAKUDY.
2 VINCENT, S/O.SEBASTIAN,
ALOOR HOUSE, TIROOR, KOLAZHY VILLAGE,
THRISSUR DIST.
3 THE UNITED INDIA INSURANCE
CO.LTD., SIMIS COMPLEX,
KURUPPAM ROAD, THRISSUR.
BY ADVS.
SRI.V.BINOY RAM
SMT.S.JAYASREE
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. 1209 of 2009
2
C.S.DIAS, J
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MACA No. 1209 of 2009
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Dated : 22nd July, 2021
JUDGMENT
The appellant was the petitioner in OP (MV) No.1113 of
2005 on the file of the Motor Accidents Claims Tribunal,
Irinjalakuda. The respondents in the appeal were the
respondents before the Tribunal.
2. The short facts, relevant for the determination of the
appeal are; on 28.11.2004, while the appellant was riding a
motor cycle bearing Registration No:KL-8V/5381 through
Chalakkudy-Kodakara section, a car bearing Registration
No:KL-8B/3706 (offending vehicle), driven by the 2 nd
respondent in a rash and negligent manner, hit the motor
cycle of the appellant. The appellant sustained serious injuries
and was treated at the St.James Hospital, Chalakkudy and,
MACA No. 1209 of 2009
thereafter, at Amritha Institute of Medical Sciences,
Edappally for a period of twenty days. The appellant suffered
a comminuted compound intercondylar fracture of left femur,
fracture of the left clavicle and multiple rib fracture bilateral.
The appellant was a company employee in the Appollo
Tyres, Perambra and drawing a monthly income of
Rs.5,000/- per month. The offending vehicle was owned by
the first respondent and insured with the third respondent.
The appellant claimed an amount of Rs.6,66,000/- as
compensation from the respondents, which he limited to
Rs.5,00,000/-.
3. The respondents 1 and 2 filed a written statement
contending that the accident was caused due to the negligence
on the part of the appellant.
4. The third respondent filed a written statement
admitting that the offending vehicle had a valid insurance
coverage, but reiterated the stand of the respondents 1 and 2
MACA No. 1209 of 2009
that the accident occurred on account of the negligence on the
part of the appellant.
5. The appellant produced and marked Exts.A1 to A8
in evidence.
6. The Tribunal, after considering the pleadings and
materials on record, allowed the claim petition in part, by
permitting the appellant to realise an amount of
Rs.1,62,800/- with interest at the rate of 7% per annum from
the date of filing the petition till the date of realisation and
proportionate costs from the respondents. The third
respondent was directed to pay the compensation amount.
7. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
8. Heard the learned counsel appearing for the
appellant/petitioner and the learned counsel appearing for
the 3rd respondent/insurance company.
9. The learned counsel appearing for the appellant
MACA No. 1209 of 2009
argued that, the Tribunal has gone wrong in fixing the income
of the appellant at Rs.1,500/-. He contended that as per
Ext.A6 certificate issued by the employer of the appellant, the
appellant has been certified to have a loss of earnings of
Rs.3,42,691/- for a period of two years, i.e. for the period
from 29.11.2004 to 17.11.2006. Hence the appellant is entitled
for the aforesaid amount of Rs.3,42,691/-.
10. The learned counsel appearing for the third
respondent vehemently countered the contention of the
learned counsel for the appellant by contending that Ext.A6
has not been proved through the author of the document.
Similarly, the Tribunal has rightly adopted Rs.1,500/- as the
income of the appellant, because the appellant was continuing
in service and he had not suffered any loss of earnings. It is in
the said circumstances, the Tribunal fixed the loss of earnings
for a period of one year at Rs.1,500/- and fixed the
compensation for loss of disability at Rs.1,500/- with 22%
MACA No. 1209 of 2009
disability. He submitted that, there is absolutely no error in
the award passed by the Tribunal, warranting interference by
this court.
11. The questions that emerges for consideration in the
appeal are;
(i) Whether the method adopted by the
Tribunal by deducting the compensation for loss
due to disability by fixing the notional income of
the appellant at Rs.1,500/- per month, is
justifiable?
(ii) Whether the quantum of compensation
awarded by the Tribunal is reasonable and
just?.
12. 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
MACA No. 1209 of 2009
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.
13. As per Ext.A2- charge-sheet filed by the Kodakara
police, in Crime No.475/2004 before the jurisdictional
magistrate, it is found that the accident was caused solely on
account of the negligence of the second respondent, who
drove the offending vehicle in a rash and negligent manner.
Undisputedly, the 1st respondent was the owner and the third
respondent was the insurer of the offending vehicle.
Therefore, the third respondent is liable to indemnify the first
respondent for the liability caused on account of the accident.
14. The main principal area of dispute is with regard to
the fixation of income of the appellant.
Income
15. The appellant has categorically pleaded in column
MACA No. 1209 of 2009
No.6 of the claim petition that he was earning a monthly
income of Rs.5,000/-. Eventhough the appellant produced
Ext.A6 certificate issued by his employer to prove that he was
on earned leave from 29.11.2004 to 17.11.2006, due to the
accident, he did not examine the author of the certificate in
order to prove its authenticity. Therefore, the respondents
were denied an opportunity to cross examine the author of
the certificate, to test the genuineness of the certificate.
16. Nevertheless, going by Ext.A7 disability certificate,
it can be gathered that the appellant was indisposed for a
period of two years. The said certificate was marked with the
consent of the respondents. In such circumstances, I accept
the plea that the appellant was indisposed for a period of two
years. However, in view of the appellant's own admitted
statement in the claim petition that he was only earning an
amount of Rs.5,000/- per month. I disbelieve the
uncorroborated figure shown in Ext.A7 certificate that he was
MACA No. 1209 of 2009
earning a monthly salary of Rs.8,443/-, especially when the
certificate was issued on 30.11.2006, which proves that it was
a self serving document for the purpose of claiming
compensation. Hence, I reject Ext.A6 certificate and fix the
income of the appellant at Rs.5,000/- as claimed by him in
the claim petition.
17. Consequently, I fix the appellant's loss of earnings
at Rs.5,000/- per month for a period of two years, i.e an
amount of Rs.1,20,000/-.
Loss due to disability:
18. As per Ext.A7 disability certificate, it is proved that
the appellant has a disability of 22%. The Tribunal with the
consent of the respondents and after seeing the appellant
fixed his whole body disability at 22%, which I confirm
because the same has been assessed and fixed, after seeing the
appellant in person. Nevertheless, it is proved that the
appellant was continuing in service and would superannuate
MACA No. 1209 of 2009
from service only on attaining the age of 58 years. Hence, his
disability can only be calculated after he attains the age of 58
years. Therefore, the relevant multiplier for calculating the
disability would be '9'. In such circumstances, I fix the loss
due to disability at Rs.1,18,800/-, i.e. Rs.5,000/- as his
income, 22% as the disability and the multiplier at '9'.
Clothing and extra-nourishment:
19. Eventhough the appellant had claimed damages for
his clothing and compensation for extra-nourishment, the
Tribunal did not award any amount under the said heads. I
find that the appellant is entitled to an amount of Rs.500/-
towards the damages to clothing and Rs.2,000/- towards
extra-nourishment.
Bye stander Expenses:
20. The appellant was admittedly treated as an
inpatient for a period of 20 days. The Tribunal has awarded
an amount of Rs.2,000/-, i.e. Rs.100/- per day. In view of the
MACA No. 1209 of 2009
fact that the accident occurred in the year 2004, I hold that
Rs.200/- has to be fixed towards bye-stander expenses.
Hence, I enhance the compensation to Rs.4,000/- instead of
Rs.2,000/- awarded by the Tribunal.
21. With respect to the other heads of compensation, I
find that the Tribunal has awarded reasonable and just
compensation.
22. On an overall re-appreciation of the pleadings and
materials on record, I am of the opinion that the appellant is
entitled for enhancement of compensation as modified and
recalculated as above and given in the table below for easy
reference.
Sl. Heads of claim Amount awarded by Amounts
No the Tribunal (in modified and
rupees) recalculated
by this Court
1 Loss of earning 62,400/- 1,20,000/-
2 Expense for transportation 2,000/- 2,000/-
3 Medical expenses 4,900/- 4,900/-
4 Damages to clothing 0 500/-
5 Extra nourishment 0 2,000/-
6 Expenses for bystander 2,000/- 4,000/-,
MACA No. 1209 of 2009
7 Compensation for pain and 25,000/- 25,000/-
sufferings
8 Loss due to disabilities 51,500/- 1,18,800/-
9 Loss of amenities 15,000/- 15,000/-
Total 1,62,800/- 2,92,200/-
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.1,29,400/- (Rupees One lakh twenty nine thousand four
hundred only) with interest at the rate of 7% per annum on
the enhanced compensation, from the date of petition till the
date of deposit and proportionate cost. The third respondent
shall deposit the enhanced compensation before the Tribunal
with interest and proportionate costs, within a period of sixty
days from the date of receipt of a certified copy of the
judgment. The Tribunal shall disburse the enhanced
compensation to the appellant in accordance with law.
Sd/-
C.S.DIAS, JUDGE
ss
