Kerala High Court
K.E. Prasad vs Mathew Sunny on 8 March, 2021
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MACA.No.122 OF 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942
MACA.No.122 OF 2014(C)
AGAINST THE AWARD IN OPMV 418/2007 DATED 20-05-2013 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA
APPELLANT/S:
K.E. PRASAD, S/O.ITTRA
KOLLATHANATHU HOUSE, OONJAPARA KARA, KEERAMPARA
VILLAGE.
BY ADV. SRI.SABU FRANCIS
RESPONDENT/S:
1 MATHEW SUNNY
MECKAMALIL HOUSE, NADUKANI PO, KOTHAMANGALAM, PIN-
686 691
2 THE ORIENTAL INSURANCE CO. LTD.
KOTHAMANGALAM BRANCH, REPRESENTED BY ITS MANAGER
P.B.NO.50, ELANJICKAL PLAZA, CHURCH VIEW JUNCTION
KOTHAMANGALAM 686 691
R1-2 BY ADV. SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 08-03-2021, THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING:
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MACA.No.122 OF 2014
C.S.DIAS, J.
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MACA No.122 of 2014
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Dated this the 8th day of March, 2021
JUDGMENT
The appellant was the petitioner in OP (MV)
No.418/2007 on the file of the Motor Accidents Claims
Tribunal, Muvattupuzha. The respondents in the appeal
were the respondents in the claim petition. 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
Sec.166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the injuries that he sustained in
a motor accident that occurred on 19.4.2006.
3. The bare facts, for the disposal of the appeal, in
the claim petition was that on 19.4.2006, while the
MACA.No.122 OF 2014
petitioner was riding a motor cycle bearing registration
No.KCE-5356 through the Keerampara - Oonjappara public
road, a car bearing registration No.KRV-4115 (offending
vehicle), driven by the first respondent in a rash and
negligent manner and at an excessive speed, hit the motor
cycle riden by the petitioner. The petitioner sustained
serious injuries. The accident occurred due to the rash and
negligent act of the first respondent. The offending
vehicle was insured with the second respondent. Hence,
the respondents 1 and 2 are jointly and severally liable to
pay the petitioner compensation, which he quantified at
Rs.7,70,000/-.
4. The first respondent was absent and set ex parte.
5. The second respondent filed a written-statement
refuting the allegations in the claim petition. However, the
second respondent admitted that it had issued a valid
insurance policy in favour of the offending vehicle. The
second respondent denied the involvement of the offending
vehicle in the accident. It was also contended that the
MACA.No.122 OF 2014
amount sought for in the claim petition was excessive and
exorbitant. The second respondent prayed that the claim
petition be dismissed.
6. Two witnesses were examined on the side of the
petitioner and Exts A1 to A15 were marked through them.
The respondents did not adduce any evidence.
7. The Tribunal, after considering the pleadings and
materials on record, allowed the claim petition, in part, by
permitting the petitioner to recover an amount of
Rs.4,37,200/- with interest at the rate of 7% per annum from
the date of original petition till the date of realisation and
proportionate costs. The second respondent was directed to
deposit the compensation amount.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in the appeal.
9. Heard the learned counsel appearing for the
appellant/petitioner and the learned counsel appearing for
the second respondent/second respondent - the Insurance
Company.
MACA.No.122 OF 2014
10. The question that emanates for consideration in
this appeal is whether the quantum of compensation
awarded by the Tribunal is just and reasonable.
11. 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 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.
12. Ext A5 charge-sheet filed by the Police in crime
No.256/2006 of the Kothamangalam Police Station
substantiates that the accident was caused due to the
negligence on the part of the first respondent, who was
charged for committing the offences punishable under Secs
279, 337 and 338 of the Indian Penal Code. The second
MACA.No.122 OF 2014
respondent had admitted that the offending vehicle was
covered by a valid insurance policy. Exts A6 to A10
records substantiate that the petitioner was treated as an
inpatient for 47 days in Chazhikattu Hospital, Thodupuzha.
Ext A15 proceedings issued by the Welfare Fund Inspector
proves that the petitioner was a toddy tapper and was
getting a monthly income of Rs.6,500/-.
13. The principal area of dispute in the appeal is with
regard to the disability of the petitioner fixed at 20% by
the Tribunal. As per Ext A12 disability certificate, issued
and proved by PW1, it is certified that the petitioner has a
permanent disability of 29%. However, the Tribunal after
seeing the petitioner, came to a conclusion that as the
petitioner's the disability was not assessed by a Medical
Board consisting of at least three Doctors of different
specialties, but only by one Doctor, the petitioner's whole
disability is only at 20%.
14. It is trite, as held by the Hon'ble Supreme Court
in Union of India and another vs. Talwinder Singh
MACA.No.122 OF 2014
[(2012) 5 SCC 480], that Courts should not ordinarily
interfere with the opinion given by the experts.
15. PW1, by Ext A12, has certified the petitioner's
disability at 29%. The respondents have not let in any
contra evidence. The finding of the Tribunal that, as Ext
A12 is issued only by one Doctor instead of three Doctors,
the disability certified by PW1 cannot be accepted, is
erroneous and unsustainable in law. As long as there is no
contra evidence or any objection raised by the respondents
to the assessment of disability, the Tribunal ought to have
accepted the findings in Ext A12. In the said
circumstances, I am of the firm opinion that the petitioner's
disability is only to be fixed at 29%. Consequently, the
petitioner is entitled to compensation under the head 'loss
due to disability' of Rs.3,16,680/- i.e., an enhancement by
Rs.82,680/-.
16. The other area of dispute is with regard to the
transportation bills. Although the petitioner had produced
Ext A11 taxi bills to claim an amount of Rs.9,880/- towards
MACA.No.122 OF 2014
transportation expenses, the Tribunal had fixed the
transportation charges at Rs.4,000/-. On a perusal of the
claim petition, it is seen that the petitioner had only
claimed an amount of Rs.5,000/- towards transportation
expenses. In the said circumstances, the finding of the
Tribunal that the petitioner is only entitled to an amount of
Rs.4,000/- under the head 'transportation expenses' cannot
be found fault with.
17. The next contention is with regard to the
proportionate costs that the petitioner is entitled to.
According to the learned counsel appearing for the
appellant, the petitioner had amended the claim petition
and paid a court-fee of Rs.5,372.50/-, as provided under
Rule 397(1) of the Kerala Motor Vehicles Rules, 1989.
Therefore, the proportionate costs fixed at Rs.1,372/- is
erroneous. Hence, the petitioner is entitled for
enhancement of proportionate costs.
18. I find sufficient force in the said contention
because it is seen from the claim petition that the
MACA.No.122 OF 2014
petitioner had paid an amount of Rs.5,372.50/- as court-fee.
Certainly when the Tribunal has awarded proportionate
costs, the petitioner is entitled for the above said amount
paid as court-fee as costs. Though the petitioner filed IA
No.2679/2013 seeking enhancement of the proportionate
court-fee, the Tribunal by its order dated 20.7.2013
rejected the application. This, according to me, is wrong
because it is evident from the court-fee column, the
petitioner has paid an amount of Rs.5,372.50/- as court-fee.
Hence, the petitioner is entitled for enhancement of
proportionate costs in tune with the court-fee paid.
19. With respect to the other heads of claim, namely,
loss of earnings, bystander expenses, extra nourishment,
medical expenses, pain and sufferings and loss of
amenities, I find that the Tribunal has awarded reasonable
and just compensation.
20. On an overall reappreciation of the pleadings,
materials on record and the law referred to in the
aforecited decisions, I am of the considered opinion that
MACA.No.122 OF 2014
the petitioner is entitled for enhancement of compensation
as modified and recalculated above and given in the table
below for easy reference.
SI Head of claim Amount claimed Amount Amounts
No (in rupees) awarded by the modified and re
Tribunal(in calculated by
rupees) this Court
(in rupees)
1 Loss of earnings 1,44,000/- 65,000/- 65,000/-
2 Pain and sufferings 30,000/- 30,000/- 30,000/-
3 Loss of amenities 25,000/-
20,000/- 20,000/-
4 Bystander expenses 5,000/- 4,700/- 4,700/-
5 Extra nourishment 15,000/- 5,000/- 5,000/-
charges
6 Transportation 5,000/- 4,000/- 4,000/-
charges
7 Medical expenses 50,000/- 74,484/- 74,484/-
8 Compensation for 1,00,000/- 2,34,000/- 3,16,680/-
permanent disability
Total claim 4,37,184/- 5,19,864/-/-
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.82,680/- (Rupees Eighty Two Thousand Six Hundred and
Eighty only) with interest @ of 7% p.a on the enhanced
compensation from the date of petition till the date of
realisation and proportionate costs, which shall include the
MACA.No.122 OF 2014
actual court-fee paid in the claim petition, i.e.,
Rs.5,372.50/-. The second respondent shall deposit the
enhanced compensation and the balance proportionate
costs towards court-fee, within a period of two months from
the date of receipt of a certified copy of the judgment. The
disbursement of compensation to the appellant/petitioner
shall be done, in accordance with law.
Sd/-
C.S.DIAS
JUDGE
SKS/8.3.2021
