Kerala High Court
Suresh vs Shaji M.George & Ors on 23 July, 2021
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. 1339 OF 2009
AGAINST THE AWARD DATED 18.01.2008 IN OP(MV)NO.771/2006 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI
APPELLANT/PETITIONER:
SURESH,
S/O. RAJENDRAN,
AGED 22 YRS.,
DOOR NO.45, CHURAKULAM TEA ESTATE,
UPPER DIVISION,, VANDIPERIYAR, IDUKKI.
BY ADV. SRI.KURIAN JOSEPH
RESPONDENTS/RESPONDENTS:
1 SHAJI M.GEORGE & ORS.,
MUNDAKKATTU HOUSE, OTTALLOOR,
KARIMKUNNAM.
2 JOHN, S/O.JOSEPH ALUNKAL HOUSE,
MALA KARA, KARIMKUNNAM VILLAGE.
3 NATIONAL INSURANCE CO.LTD.
THODUPUZHA BRANCH.
BY ADV SRI.JOE KALLIATH
OTHER PRESENT:
ADV S SREEDEV -- COUNSEL FOR THE APPELLANT
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.1339/2009
-:2:-
Dated this the 23rd day of July,2021
JUDGMENT
The appellant was the petitioner in O.P (MV)
No.771/2006 on the file of the Motor Accidents Claims
Tribunal,Thodupuzha. 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 25.12.2002, while
the appellant was riding pillion on motorcycle bearing
registration No. KRB/2825 through the
Moolamattom-Thodupuzha road, a bus bearing
registration No. KL-6/6705 came from the opposite
direction at excessive speed and hit the motorcycle.
The appellant sustained serious injuries and was
treated at the Medical Mission Hospital, Kolencherry,
as an inpatient from 25.12.2002 to 04.01.2003. He is
still continuing treatment. The appellant was a
supervisor in a cardamom estate and earning a
M.A.C.A.No.1339/2009
monthly income of Rs.3,000/-. The bus was driven by
the second respondent in a rash and negligent manner.
The bus was owned by the first respondent and
insured with the third respondent. Therefore, the
respondents were jointly and severally liable to pay
compensation to the appellant, which he quantified at
Rs.4,45,000/-; but limited to Rs.2,00,000/-.
3. The rider of the motorcycle also filed O.P
(MV) No.772/2006 before the same Tribunal, claiming
compensation on account of the injuries sustained by
him.
4. The respondent Nos.1 and 2 did not contest
the proceedings and were set ex parte.
5. The third respondent filed a written
statement, contending that the claim petition was bad
for non-joinder of necessary parties. It was also
contended that accident occurred on account of the
negligence of the rider of the motorcycle, who stood
charge-sheeted by the police for rash and negligent
M.A.C.A.No.1339/2009
driving. Therefore, the third respondent was not liable
to pay any amount as compensation.
6. The Tribunal consolidated and jointly tried
the original petitions. The rider of the motorcycle was
examined as PW1 and Exts.A1 to A11 series were
marked in evidence. Copy of insurance policy of the
bus was also marked as Ext.B1. Case Diary in Crime
No.317/2002 of Kanjar police station was marked as
Ext.X1.
7. The Tribunal, after analysing the pleadings
and materials on record, allowed the claim petition
filed by the appellant by permitting him to realise an
amount of Rs.76,600/- as compensation from the
respondents. However, the Tribunal on finding that
there was contributory negligence on the part the
rider of the motorcycle to the tune of 70%, held that
the appellant was entitled to only 30% of the
compensation amount of Rs.76,600/-.
8. Aggrieved by the findings of the Tribunal that
M.A.C.A.No.1339/2009
the appellant is only entitled to 30% of compensation
amount from the third respondent as the rider of the
motorcycle was guilty for contributory negligence and
dissatisfied with the quantum of compensation
awarded by the Tribunal, the appellant has filed the
appeal.
9. Heard; Adv. Sri. S.Sreedev, the learned
counsel appearing for the appellant/petitioner and
Adv.Sri.Joe Kalliath, the learned counsel appearing for
the third respondent-insurance company.
10 The questions that arise for consideration in
the appeal are:
(i) whether the finding of the Tribunal that the
appellant/petitioner was entitled to only
30% of the compensation amount due to
contributory negligence of the rider of the
motorcycle is correct?
(ii) whether the amount of compensation
awarded by the Tribunal is reasonable and
just?
M.A.C.A.No.1339/2009
Question No:I
11. It is brought to the notice of this Court that in
the appeal filed by the rider of the motorcycle against
the very same common award in O.P.(MV)No.772/2006,
this Court by its judgment dated 26.09.2018 in
M.A.C.A.No.600/2009, has held that there was no
contributory negligence on the part of the rider of the
motorcycle. Therefore, the deduction of 70% of the
compensation was set aside.
12. Similarly, this Court in Sajith Sahir v.
Rajeev [2017(3)KLT SN 35 (Case No.45)] has held that
negligence cannot be attributed on a pillion rider of a
motorcycle, due to the contributory negligence of the
ride.
13. In light of the findings of this Court in
M.A.C.A. No.600/2009 and the ratio in Sajith(supra), I
set aside the finding of the Tribunal that the appellant
is entitled to only 30% of the compensation amount
from the third respondent. Accordingly, I hold that the
M.A.C.A.No.1339/2009
appellant/petitioner is entitled for realising the entire
amount of compensation awarded by the Tribunal from
the respondents.
Question No:II
14. The appellant had contended that he was a
supervisor in a cardamom estate and earning a
monthly income of Rs.3,000/-.The Tribunal took the
notional income of the appellant at Rs.2,000/-.
15. 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:
16. Following the ratio in the afore-cited decision
and considering the fact that the accident was
occurred in 2002, I re-fix the notional income of the
appellant at Rs.3,500/- per month.
M.A.C.A.No.1339/2009
Loss of earnings:
17. The appellant was found to be incapacitated
for a period of three months. The Tribunal, on the
basis of the notional income awarded an amount of
Rs.6,000/- to the appellant. In view of the re-fixation of
the notional income of the appellant, he is entitled for
enhancement of compensation by a further amount of
Rs.4,500/-.
18. With respect to the other heads of
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
19. 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 appellant/petitioner is entitled for enhancement of
compensation as modified and re-calculated above and
given in the table below for easy reference.
M.A.C.A.No.1339/2009
Sl.No Head of claim Amount Amounts
awarded by modified
the Tribunal and
(in rupees) recalculate
d by this
Court
1 Loss of earnings 6,000 10,500
2 Transportation 3,000 3,000
expenses
3 Extra nourishment 2,000 2,000
4 Bystander expense 2,000 2,000
5 Treatment expense 38,562 38,562
6 Pain and sufferings 15,000 15,000
7 Loss of amenities 10,000 10,000
Total 76,562 81,062
Minus
70%=23,000
In the result, the appeal is allowed by fixing the
total compensation at Rs.81,062/-. The third
respondent is directed to pay the entire compensation
amount with interest the rate of 8% per annum from
the date of petition till the date of deposit, after
deducting the period of 365 days i.e., the period of
delay as ordered by this Court on 20.09.2021 in
C.M.Appln. No.1533/2009, and proportionate costs.
Needless to mention that, if the third respondent has
M.A.C.A.No.1339/2009
already paid any amount pursuant to the impugned
award, only the balance amount need be deposited.
The Tribunal shall disburse compensation amount
awarded as per judgment to the appeal in accordance
with law.
All pending interlocutory applications will stand
closed.
Sd/-
C.S.DIAS,JUDGE
DST //True copy/
P.A.To Judge
