Kerala High Court
Kannan vs Nandakumar And Others on 4 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942
MACA.No.1637 OF 2009
AGAINST THE AWARD IN OPMV 1249/2002 DATED 11-11-2008 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,TRIVANDRUM
APPELLANT/S:
KANNAN
SOUMYA VIHAR, T.C.27/706,, AMBALATHUMUKKU, VANCHIYOOR
P.O.,, THIRUVANANTHAPURAM.
BY ADVS.
SRI.R.T.PRADEEP
SRI.V.S.VINEETH KUMAR
RESPONDENT/S:
1 NANDAKUMAR AND OTHERS
S/O.CHELLAPPAN, EDAVAZHITHALAIKKAL VEEDU,, NEAR HOTEL
CHINNUS, MEDICAL COLLEGE P.O.,, CHERUVAIKKAL VILLAGE.
2 NARAYANAN T.C.12707 PAZHAYA ROAD
MEDICAL COLLEGE P.O.,, THIRUVANANTHAPURAM.
3 THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,, DIVISIONAL OFFICE 2ND,
KN MATHEW BUILDING,, SA COIL ROAD, THIRUVANANTHAPURAM-695
001.
4 THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE,
PB.NO.15,, PARAMESWARAN PILLAI BHAVAN,, HOSPITAL ROAD,
KOLLAM-695 001.
R1 BY ADV. SRI.DILISH JOHN
R1 BY ADV. SRI.M.JACOB MURICKAN
R1 BY ADV. SMT.T.J.MARIA GORETTI
R1 BY ADV. SRI.N.C.SAJITH
R1 BY ADV. SMT.SARAH SALVY
R1 BY ADV. SMT.T.V.SHELJA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA.No.1637 OF 2009 2
P.V.KUNHIKRISHNAN, J
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M.A.C.A. No.1637 of 2009
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Dated this the 4th day of March, 2021
JUDGMENT
The appellant is the claimant in O.P.(M.V.) No.1249/2002 on the
file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. It
is a claim petition filed under Sec. 166 of the Motor Vehicles Act.
2. The short facts are like this :
The appellant is a 25 year old business man allegedly earning a
sum of Rs.6,000/- per month. On 7.4.2001 at about 6.30 p.m., the
appellant was riding his motorcycle bearing registration No.KL-01/C
4179 along with Kilimanoor-Thiruvananthapuram public road and
when he reached in front of an STD booth at Vettinad at Vattappara,
an Ambassador car bearing registration No. KL-01/N-2452 came from
the opposite direction and collided with the appellant's motor cycle
and he was thrown off in the road and he sustained multiple fractures
on his body parts. According to the appellant, 1 st respondent, driver of
the car was rash and negligent. Therefore, respondent Nos. 2 and 3,
who are the owner and insurer of the car are liable to pay the
compensation.
3. To substantiate the case, Exts. A1 to A25 were produced by
the appellant. No other evidence is adduced by the appellant. After
going through the evidence and the documents, the Tribunal found
that the appellant is entitled a sum of Rs.2,00,000/- as compensation
from respondent Nos. 1 to 3 jointly and severally together with
interest at the rate of 7.5% per annum with effect from 28.6.2002,
the date of filing of the application till realisation. Aggrieved by the
quantum of compensation, this appeal is filed.
4. Heard counsel for the appellant and the counsel for the
Insurance Company.
5. The counsel for the appellant submitted that the Tribunal
has not considered the disability of the appellant. According to the
counsel, as per Ext.A18, the disability noted was 30% by an
orthopaedic doctor and the Tribunal without considering the same,
reduced the disability to 20%. But I cannot agree with the counsel for
the appellant. The doctor is not examined. Even the appellant is not
examined. The contention of the appellant is not properly placed
before the Tribunal. In such circumstances, based on the available
material, the Tribunal fixed the disability as 20%. There is nothing to
interfere with the above finding of the Tribunal.
6. Then the counsel submitted that the monthly income fixed
by the Tribunal is only Rs.2,000/-. The accident happened in the year
2002. In the light of the judgment of the Apex Court in
Ramachandrappa v. The Manager, Royal Sundaram Alliance
Insurance Company Limited [AIR 2011 SC 2951], the monthly
income can be fixed as Rs.3,000/-. Towards future prospects, 40% can
be added to the monthly income. If that is the case, the monthly
income can be safely fixed as Rs.4,200/-. Consequently, there will be
increase in the compensation towards loss of earning and loss of
permanent disability. As far as the extra nourishment is concerned,
the Tribunal awarded only Rs. 2,000/-. An extra amount of Rs.2,000/-
can be ordered on that count also. The compensation for disability
based on the monthly income now fixed can be assessed in the
following manner :
4,200 x 12 x 18 x 20/100 = Rs.1,81,440/-
From the above amount, the amount already awarded is to be
deducted. If that is the case, the enhanced amount entitled for
permanent disability is Rs.95,040/- (1,81,440-86,400/-).
7. Towards the loss of earning, the Tribunal assessed for a period
of 9 months. If that is the case, based on the monthly income now fixed, the
amount will be Rs.37,800/- (4,200 x 9). The amount already granted is to be
deducted from the same. The enhanced compensation for loss of earning
will be Rs.19,800/- (37,800-18,000). Therefore, enhanced compensation the
appellant entitled can be summarized like this :
Sl.No. Head Amount
1 Loss of earning Rs.19,800/-
2 Extra nourishment Rs.2,000/-
5 Permanent disability resulting in Rs.95,040/-
loss of future earning
Total Rs.1,16,840/-
8. The appellant is entitled interest at the rate of 8% per
annum for the enhanced compensation.
Therefore, this appeal is allowed in part. The impugned award is
modified. The appellant is entitled an enhanced amount of
compensation of Rs.1,16,840/- with interest at the rate of 8% per
annum with effect from the date of application, ie, 28.6.2002 till
realisation. The respondent No.3 is liable to pay the enhanced amount
with interest to the appellant.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
