The Oriental Insurance Co.Ltd vs P.K.Prakash
2021 Latest Caselaw 15446 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
   FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                   MACA NO. 1763 OF 2010
 AGAINST THE AWARD IN OP(MV)NO. 1079/2007 OF MOTOR ACCIDENT
               CLAIMS TRIBUNAL PALA, KOTTAYAM
APPELLANT/3RD RESPONDENT IN THE OP:

         THE ORIENTAL INSURANCE CO.LTD
         THODUPUZHA,
         REP. BY THE AUTHORIZED SIGNATORY,,
         THE ORIENTAL INSURANCE CO. LTD.,,
         REGIONAL OFFICE, METRO PALACE,,
         ERNAKULAM NORTH, KOCHI-18.
         BY ADV SRI.A.R.GEORGE
RESPONDENTS/CLAIMANT & RESPONDENTS 1 AND 2 IN THE OP:

    1    P.K.PRAKASH
         S/O.KESAVAN, PULIMOOTTIL HOUSE,,
         MURIKKALLUMPURAM, MUNDAKAYAM P.O.,,
         KOTTAYAM DISTRICT.-686513

    2    NAJEEBKHAN AYSHA MANSIL
         MURIKKALLUMPURAM, MUNDAKAYAM P.O.,,
         KOTTAYAM DISTRICT.-686513

    3    P.S.BINU
         PAZHOOR HOUSE, PALAMPRA P.O.,,
         KANJIRAPPALLY, KOTTAYAM DISTRICT.-686518

         BY ADVS.
         SMT.MINI ELIZABETH GEORGE
         SMT.V.S.SIMI


     THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 23.07.2021, ALONG WITH CO.32/2017, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA No. 1763 of 2010 &
Cross Objection No.32 of 2017

                                   2



             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
     FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                            CO NO. 32 OF 2017
  AGAINST THE AWARD IN OP(MV)NO. 1079/2007 OF MOTOR ACCIDENT
                    CLAIMS TRIBUNAL PALA, KOTTAYAM
APPELLANT/RESPONDENT NO.1:

            PRAKASH P.K.
            S/O KESAVAN, PULIMOOTTIL HOUSE,
            MURIKALLUMPURAM, MUNDAKAYAM PO,
            KOTTAYAM DISTRICT.

            BY ADV SMT.MINI ELIZABETH GEORGE


RESPONDENTS/RESPONDENTS 2 AND 3 & APPELLANT:

     1      NAJEEBKHAN
            ASIYA MANSIL, MURIKALLUMPURAM,
            MUNDAKAYAM PO, KOTTAYAM DISTRICT.686513.

     2      P.S. BINU
            PAZHOOR HOUSE, PALAMPRA PO,
            KANJIRAPPALLY, KOTTAYAM DISTRICT.686506.

     3      THE MANAGER
            THE ORIENTAL INSURANCE COMPANY LTD,
            THODUPZUAHA, 685684,
            POLICY NO. 441701/04/8562.

            BY ADV SRI.A.R.GEORGE


      THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 23.07.2021, ALONG WITH MACA.1763/2010, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA No. 1763 of 2010 &
Cross Objection No.32 of 2017

                                   3




                          C.S.DIAS,J
               ------------------------
                MACA No. 1763 of 2010 &
               Cross Objection No.32 of 2017
               ------------------------
             Dated this the 23rd day of July, 2021

                                JUDGMENT

The appellant was the 3rd respondent in

OP(MV)No.1079 of 2007 on the file of the Motor

Accidents Claims Tribunal, Pala. The respondents in

the appeal were the petitioner and respondents 1 and

2 before the Tribunal. The parties are for the sake of

convenience, referred to as per their status in the

claim petition.

2. The petitioner had filed the claim petition

under Section 166 of the Motor Vehicles Act, 1988,

claiming compensation on account of the accident

that occurred on 06.07.2004. The petitioner had

averred in the claim petition that, on 06.07.2004 MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

while he was driving an autorickshaw bearing

registration No.KL 5 N/6044 from Koottickal to

Mundakkayam, a Bus bearing registration No.KL 5

L/5412 (Bus) coming from the opposite side and

while attempting to overtake another vehicle, hit the

autorickshaw of the petitioner. The Bus was driven by

the 1st respondent in a rash and negligent manner.

The petitioner sustained serious injuries and was

taken to Taluk Headquarters Hospital, Kanjirappally

and was, thereafter, referred to the Medical College

Hospital, Kottayam for further treatment. He was

finally discharged on 15.07.2004. The petitioner is a

driver by profession and earning a monthly income of

Rs.6,000/-. He was disabled from carrying on his work

for six months. The accident occurred solely due to

the negligence of the 1st respondent. The Bus was

owned by the 2nd respondent and insured with the 3rd MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

respondent. Hence, the respondents were jointly and

severally pay him compensation, which he quantified

at Rs.1,80,000/-.

3. A fellow passenger in the autorickshaw also

filed OP(MV)No.1087 of 2007 before the same

Tribunal claiming compensation on the account of

injuries sustained in the accident.

4. The respondents 1 and 2 did not contest the

proceeding and were set ex-parte.

5. The 3rd respondent filed a written statement

contending that the Bus had a valid insurance

coverage, but the accident was caused due to the

negligence of the petitioner, who drove the

autorickshaw in a rash and negligent manner.

Therefore, the 3rd respondent was not liable to pay

any amount as compensation. Similarly, the 3rd

respondent disputed the age, occupation and income MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

of the petitioner. It is also contended that there was a

collision between the petitioner and the respondents.

6. The Tribunal consolidated and jointly tried

the original petitions.

7. Both the petitioners were examined as PWs 1

and 2. Three other witnesses were examined as PWs

3 to 5 and Exts.A1 to A9 were marked in evidence.

8. The 3rd respondent examined RWs 1 to 5 and

marked Exts.B1 to B7 in evidence. The case sheet was

marked as Ext.X1.

9. The Tribunal, after analysing the pleadings

and materials on record, allowed the claim petition

filed by the petitioner, by permitting him to realise an

amount of Rs.42,650/- from the 3rd respondent,

10. Aggrieved by the impugned award passed by

the Tribunal, the 3rd respondent/insurance company

has filed the appeal, and dissatisfied with the MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

quantum of compensation awarded by the Tribunal,

the petitioner has filed the Cross Objection.

11. Heard Sri.A.R.George, the learned Counsel

appearing for the appellant/3rd respondent-insurance

company and Smt.Mini Elizabeth George, the learned

Counsel appearing for the 1st respondent/cross

objector/petitioner.

12. The questions that arise for consideration in

this appeal are (i) whether the findings of the

Tribunal that it was the 1st respondent who was

negligent in causing the accident is correct or not and

(ii) whether petitioner is entitled for enhancement of

compensation?

13. It was the specific case of the petitioner in

the claim petition that, while he was driving his

autorickshaw, the Bus driven by the 1st respondent in

a rash and negligent manner hit against the MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

autorickshaw, which resulted in the accident and

consequential injuries were caused to him.

14. Ext.B1 F.I.Statement and Ext.B2 FIR

registered by the Mundakkayam police in Crime

No.181 of 2004 and Ext.B5 final report filed by the

police after investigation states that it was the

petitioner who was negligent in driving the

autorickshaw and who had caused the accident.

Nevertheless, the petitioner had filed Ext.A1 private

complaint before the jurisdictional Magistrate,

pursuant which C.C.No.503 of 2006 was registered by

the Judicial First Class Magistrate Court-1,

Kajirappally, against the 1st respondent for offences

punishable under Sections 279, 337 and 338 of the

IPC.

15. Surprisingly, the 1st respondent pleaded

guilty to the charges framed against him and he was MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

convicted by the learned Magistrate for the above

offences and sentenced to pay a total fine of

Rs.2,400/-.

16. Pursuant to Ext.B4 final report filed by the

police before the very same court, the petitioner

withstood the trial. After examination of the informant

and eye witnesses to the incident, the learned

Magistrate acquitted the petitioner under Section

225(1) Cr.P.C. Therefore, on the passing of Ext.A2 and

Ext.A3 judgments by the learned Magistrate, the

petitioner was acquitted of the charges levelled

against him, but the 1st respondent was convicted for

the offences charged against him.

17. In addition to the above materials, the

petitioner had examined PWs 3 and 4, who were eye

witnesses to the incident. The said witnesses

emphathetically stated that they had seen the Bus MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

driven by the 1st respondent in a rash and negligent

manner, and while attempting to overtake another

vehicle, it hit the autorickshaw driven by the

petitioner. On the other hand, the 3rd respondent

examined the police officers who registered Ext.B2

FIR, Ext.B4 final report and the charge-sheet as RWs

1 to 3, respectively, which have become redundant in

the light of Ext.A2 and A3 judgments.

18. The Tribunal after evaluating the

testimonies of PWs 3 and 4 and that of RWs 1 to 3 and

perusing the exhibits marked in evidence,

particularly, Ext.A2 and Ext.A3 judgments passed by

the learned Magistrate arrived at a conclusion that

the accident was caused solely due to the negligence

of the 1st respondent.

19. On a re-appreciation of the oral testimonies

of PWs 3 and 4 and RWs 1 to 3 and also the exhibits MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

on record, I find that only PWs 3 and 4 were eye

witnesses to the incident who have specifically stated

that the accident occurred on account of the

negligence of the 1st respondent who while overtaking

another vehicle hit the vehicle driven by the

petitioner, which resulted in the accident. This finding

is fortified by Ext.A2 judgment of the jurisdictional

Magistrate, wherein, the 1st respondent pleaded

guilty to the charges that were framed against him.

Likewise, by Ext.A3 judgment, the petitioner was

acquitted of the charges levelled against him.

20. On a comprehensive re-appreciation of the

materials on record particularly, the oral testimonies

of the above mentioned witnesses, I am of the

considered opinion that the findings of the Tribunal

that it was the 1st respondent who was negligent in

causing the accident is correct and justified. I do not MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

find any error or illegality in the fact finding exercise

carried out by the Tribunal. Hence, I answer question

No.1 in favour of the petitioner and hold that the

Tribunal has rightly arrived at the conclusion, which I

confirm.

21. Now, coming to the second question whether

the petitioner is entitled for enhancement of

compensation .

22. The petitioner had claimed that he was a

Driver by profession and earning a monthly income of

Rs.6,000/-. The Tribunal, for want of materials, fixed

the notional income of the petitioner at Rs.2,500/-.

23. 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. MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

Notional income

24. Following the ratio in the afore-cited decision

and considering that the accident occurred in the

year 2004, I am of the considered opinion that the

petitioner's notional income can safely be fixed at

Rs.4,500/- per month. Hence, I re-fix the petitioner's

notional income at Rs.5,500/- per month.

Disability

25. Pursuant to the order of this Court dated

15.01.2019, the petitioner was referred to the

Medical Board of the Medical College Hospital,

Kottayam. The Medical Board after examining the

petitioner by Standing Disability Assessment Board

Certificate dated 27.02.2019 has assessed the

permanent disability of the petitioner at 8%. I accept

the said certificate on record and mark the same as

Ext.X2.

MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

Loss due to disability

26. The petitioner was 28 years at the time of

accident. In the light of the law laid down in Sarala

Varma v. Delhi Transport Corporation [2010 (2) KLT

802 (SC)] and National Insurance Company Ltd.

v. Pranay Sethi [(2017) 16 SCC 680], the relevant

multiplier is '17'. Therefore, following the above

parameters, I re-fix the compensation for 'loss due to

disability' at Rs.73,440/-.

Loss of earnings

27. The Tribunal found that the petitioner was

incapacitated for a period of four months and

awarded an amount of Rs.10,000/- as compensation

for '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 compensation at Rs.18,000/-, i.e,

an enhancement of Rs.8,000/-.

MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

28. With respect to the other heads of

compensation, I find that the Tribunal has awarded

reasonable and just compensation.

29. 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

definite opinion that the cross objector/petitioner is

entitled for enhancement of compensation as

modified and recalculated above and given in the

table below for easy reference.

Sl. Heads of claim Amount awarded by the Amounts modified No Tribunal (in rupees) and recalculated by this Court 1 Transport to hospital 1,500/- 1,500/- 2 Loss of earnings 10,000/- 18,000/-

3     Damage to clothing                     250/-               250/-
4     Extra nourishment                      500/-               500/-
5     Medical expenses                      2,400/-             2,400/-
6     Bye-stander expenses                  3,000/-             3,000/-
7     Pain and sufferings                  15,000/-            15,000/-
8     Loss due to amenities                10,000/-            10,000/-
9     Loss due to disability                  nil              73,440/-
                                           42,650/-           1,24,090/-

In the result, the appeal is dismissed and the

Cross Objection is allowed, in part, by answering MACA No. 1763 of 2010 & Cross Objection No.32 of 2017

question No.2 in favour of the petitioner and

enhancing the compensation by a further amount of

Rs.81,440/- with interest at the rate of 7.5% per

annum from the date the petition till the date of

deposit, after deducting 2325 days, i.e., the period of

delay in filing the Cross Objection, and as ordered by

this Court on 31.08.2018 in C.M.Appl.653 of 2017,

and proportionate costs. The appellant in MACA

No.1763 of 2010/3rd respondent insurance company

shall deposit the enhanced compensation with

interest and proportionate costs before the Tribunal

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 cross

objector/petitioner in accordance with law.

                                         Sd/-    C.S.DIAS,JUDGE

dlk 26.07.2021