Kerala High Court

Kadhiyakutty @ Kadhiyumma vs Sali And Others on 18 March, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                         MACA.No.1968 OF 2011

 AGAINST THE AWARD IN OPMV 315/2002 DATED 30-04-2008 OF DISTRICT
   COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA


APPELLANT:

               KADHIYAKUTTY @ KADHIYUMMA
               AGED 52 YEARS, W/O.KUTTU,
               MELEPEEDIKAYIL HOUSE,
               THINAPURAM, MEPPADI POST,
               VYTHIRI TALUK.

               BY ADV. SMT.CELINE JOSEPH

RESPONDENTS:

      1        SALI AND OTHERS
               S/O.MOOSA, AGED 35 YEARS,
               THADATHIL HOSUE, AVILORA,
               KODUVALLY POST,
               KOZHIKODE 685 582.

      2        KANALAKSHAN
               S/O.P.K.UNNIKRISHNAN,
               KALESH BHAVAN,
               THAMARASSERY POST,
               VIZHAPATTOOR,
               KOZHIKODE DISTRICT 671 032.

      3        THE BRANCH MANAGER
               UNITED INDIA INSURANCE CO.LTD,
               VELIMANNA BUILDINGS,
               MAIN ROAD, THAMARASSERY,
               KOZHIKODE 673012.

               R1-2 BY ADV. SRI.ARUN MATHEW VADAKKAN
               R1 BY ADV. SRI.RAJESH THOMAS
               R1 BY ADV. SRI.K.P.SUDHEER
               R3 BY ADV. SRI.PMM.NAJEEB KHAN

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
16-03-2021, THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:
 MACA.No.1968 OF 2011

                                 2




                 P.V.KUNHIKRISHNAN, J.
              ===================
                 MACA No.1968 OF 2011
              ===================
          Dated this the 18th day of March 2021


                        JUDGMENT

This appeal is filed by the claimant in O.P.(MV)

No.388/2002 on the file of Motor Accidents Claims

Tribunal, Kalpetta. The above claim petition was disposed

by the tribunal along with 10 other claim petitions and a

common award was passed.

2. The short facts are like this:_

On 09.06.2002 at about 6.00 p.m., the

petitioner was traveling in a tata Sumo bearing Reg. No.

KL 11 G-5787 from Kozhikode to Chundale and the

vehicle was driven by the 1st respondent in a rash and

negligent manner. When the vehicle reached in front of

Nirmal agencies, Chundale, it hit on a wall and thereby

the petitioner and other claimants sustained injuries. MACA.No.1968 OF 2011

Some of injured succumbed to the injuries. Therefore, the

injured and legal heirs of the deceased filed 11 separate

claim petitions. All the claim petitions were considered

together by the tribunal and a common award is passed.

As far as, the O.P. (MV) No. 388/2002, is concerned the

tribunal fixed the compensation as Rs.53,650/- with

interest @ 6% p.a. from the date of application till

realization. The tribunal found that, the 2nd respondent

should pay the compensation, because the injured was a

gratuitous passenger and no additional premium was

paid. Aggrieved by the same this appeal is filed.

3. Heard the learned counsel for the

appellant/petitioner, the learned counsel for the 2nd

respondent and the learned counsel for the 3rd

respondent.

4. The learned counsel for the appellant submitted

that, in the connected appeal filed by the claimant in O.P.

(MV) No. 382/2002. This Court found that, the policy

issued in respect of the offending vehicle is a package MACA.No.1968 OF 2011

policy and therefore, the 3rd respondent is directed to pay

compensation. This was conceded by the insurance

company. The relevant portion of the judgment dated

03.02.2011 in MACA No. 2158 of 2010 is extracted

hereunder;

" When the appeal came up for hearing today, learned counsel for the Insurance Company fairly conceded that the policy issued in respect of the offending vehicle is a package policy. That being so, the risk of the claimant is covered by the said policy. It follows that the 3rd respondent is liable to indemnify the owner and the driver of the offending vehicle. Consequently, the 3rd respondent has to pay the compensation amount to the claimant."

5. In the light of the above findings, the 3 rd

respondent is liable to pay compensation awarded by the

tribunal. The learned counsel for the appellant submitted

that, the compensation awarded by the tribunal is to low,

considering the serious nature of the personal injuries

sustained her. The learned counsel submitted that, the

tribunal fixed the monthly income of the appellant as MACA.No.1968 OF 2011

Rs.1,500/-. According to the learned counsel, the

accident happened in the year 2002 and the appellant

was getting a monthly income of Rs. 3,750/-. In the light

of the decision of the Apex Court in Ramachandrappa

v. The Manager, Royal Sundaram [2011(13) SCC

236], I think the monthly income can be safely fixed as

Rs.3,500/-, because in the above decision the Apex Court

fixed the monthly income of a coolie in the year 2004 as

Rs.4,500/-. It is conceded by both sides that, the correct

multiplier in the light of the decision in Sarla Verma &

Others v. Delhi Transport Corporation & another

[2010 (2) KLT 802] is 14 considering the age of the

appellant. Based on the same, the compensation for

disability is to be re assessed in the following manner;

Rs.3,500 X 12 X 14 X 20/100= Rs.1,17,600/-

6. The tribunal awarded an amount Rs.39,600/-

which is to be deducted from the above amount. The

balance amount will be:- Rs.1,17,600-39,600 =

Rs.78,000/-

MACA.No.1968 OF 2011

7. The learned counsel submitted that, only an

amount of Rs.4,000/- is paid towards the loss of earning.

The learned counsel submitted that, the appellant

sustained very serious injuries including fracture. He was

not able to go for his regular work for a long period.

Considering the above submissions, I think, the loss of

earning can be assessed @ Rs.3,500/- per month for a

period of five months. Then the amount will be:-

Rs.3,500 X 5 = Rs.17,500/-. The amount already given

by the tribunal is to be deducted from the above amount.

Then, the balance amount will be:- Rs. 17,500-4000 =

Rs.13,500/-.

8. The learned counsel submitted that the tribunal

awarded only an amount of Rs.5,000/- for pain and

suffering. It is true that the appellant sustained very

serious injuries including fracture and he was in hospital

for a period of 90 days. Considering the entire facts and

circumstances of the case, I think, another amount of

Rs. 10,000/- can be awarded towards pain and MACA.No.1968 OF 2011

suffering. No amount is awarded for loss of amenities.

The appellant is entitled an amount of Rs. 15,000/-

towards loss of amenities. Therefore, the total enhanced

compensation entitled to the appellant can be

summarised like this:

                       Head                            Amount
                Compensation for                    Rs.78,000/-
                disability
                Loss of earnings                    Rs.13,500/-
                Pain and sufferings                 Rs.10,000/-
                Loss of amenity                     Rs.15,000/-
                                  Total             Rs. 1,16,500/-

9. The 3rd respondent is directed to pay the

compensation awarded by the tribunal and enhanced

amount awarded by this Court. The appellant is entitled

interest at the rate of 7.5% for the enhanced

compensation.

Therefore, the appeal is allowed in part. The

impugned award is modified to the effect that the

appellant is entitled an enhanced compensation of MACA.No.1968 OF 2011

Rs.1,16,500/- with interest @ 7.5% p.a from the date of

application till realisation. The compensation awarded by

the tribunal and enhanced compensation awarded by this

Court in this appeal with interest will be paid by the 3 rd