Kerala High Court
Dr.Chakkappan vs Roy on 23 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943
MACA.No.2801 OF 2012(B)
AGAINST THE AWARD IN OPMV 1075/2007 DATED 03-08-2012 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA
APPELLANT/PETITIONER:
DR.CHAKKAPPAN,
S/O DEVASSY, CHIRAKKAL HOUSE,
PADUVAPURAM P.O., KARUKUTTY, ALUVA TALUK.
BY ADVS.
SRI.P.V.BABY
SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS:
1 ROY, S/O RAPPAI,
NELLANKARA HOUSE,PERUVAMKULANGARA P.O.,
OLLUR 680 306.THRISSUR.
2 VIDYADARAN, S/O.RAMAKRISHNAN
PULLIKKATHARA HOUSE,PERUVANKULANGARA
P.O.,MARATHAKKARA 680 306, THRISSUR.
3 THE ORIENTAL INSURANCE CO. LTD.
THRISSUR 680 001.
R1, R3 BY ADV. SRI.P.V.JYOTHI PRASAD
SMT.K.S.SANTHI, SC FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
22-03-2021, THE COURT ON 23-03-2021 DELIVERED THE FOLLOWING:
MACA.No.2801 OF 2012
2
JUDGMENT
Dated this the 23rd day of March 2021
The appellant is the petitioner in O.P.(MV)No.1075/2007
on the filed of the Motor Accidents Claims
Tribunal,Irinjalakuda. It is a claim petition filed under Section
166 of Motor Vehicles Act. (Hereinafter the parties are
mentioned in accordance to their rank before the Tribunal).
2. Short facts are like this, on 16.03.2007 at about
1.15 p.m, the petitioner was driving a car bearing Reg.No.KL-
10/K 7193 through National Highway 47 at Chalakudy from
south to north and a goods vehicle bearing Reg.No.KL-8Y 7341
driven by the 2nd respondent in a rash and negligent manner
came from the opposite direction and hit on the car causing
injuries to the petitioner. First respondent is the owner and 3 rd
respondent is the insurer of the lorry. According to the
petitioner, all respondents are jointly and severally liable to
compensate the petitioner.
3. To substantiate the case, the petitioner produced
Exts.A1 to A13 and Exts.B1 to B4 are also marked on the side
MACA.No.2801 OF 2012
of the respondents. PW 1 and PW2 are two witnesses
examined on the side of the petitioner. After going through the
evidence and documents, the Tribunal found that, there is
contributory negligence on the part of the petitioner and 2 nd
respondent. As far as the quantum of compensation is
concerned the Tribunal fixed an amount of Rs.64,890/-. But
from the above amount, 50% is deducted because of the
negligence on the part of the petitioner. Aggrieved by the
quantum of compensation this appeal is filed.
4. Heard the learned counsel for the appellant and the
learned counsel for the 3rd respondent.
5. The learned counsel for the appellant/petitioner
submitted that he is not challenging the finding of the Tribunal
with regard to the contributory negligence attributed to the
petitioner. The learned counsel submitted that the quantum of
compensation awarded by the Tribunal is too low.
6. The 1st submission of the counsel is about the
monthly income of the petitioner fixed by the Tribunal. He
asserts that, the petitioner is aged 60 years and he is a retired
MACA.No.2801 OF 2012
Professor who was working as a guest lecturer at St.Joseph
College, Irinjalakuda. The counsel submitted that the
petitioner clearly stated in his claim petition that his monthly
income is Rs.10,000/- and he produced Ext.A10 certificate to
show that his monthly income is Rs.10,000/-. But the Tribunal
wrongly stated in the award that the petitioner himself claims
that he is getting only Rs.5,000/- per month. The counsel
submitted that there is no such submission from the side of
the petitioner and his claim is Rs.10,000/-. I see no reason to
disbelieve the case of the petitioner. In the light of Ext.A10
certificate the monthly income of the petitioner can be fixed as
Rs.10,000/- per month. In this case, there is no contra
evidence adduced by respondents to dispute the same.
7. As far as loss of earning is concerned, in the
impugned award it is stated that amount claimed is
Rs.15,000/-. I perused the claim petition, which is made
available by the counsel for the appellant. The claim of the
petitioner in the claim petition for loss of earning for the
period from 16.03.2007 to 01.10.2007 is an amount of
Rs.65,000/-. Admittedly, the petitioner sustained very serious
MACA.No.2801 OF 2012
injuries including fracture. He may not be able to work at least
for a period of six months. Therefore, the petitioner is entitled
for compensation for the loss of earning for a period of six
months. Then the amount will be 6x10,000 = 60,000/-.
8. As far as pain and suffering is concerned the
Tribunal awarded an amount of Rs.12,000/-. Considering the
serious nature of the injury and sufferings of the petitioner, I
think another amount of Rs.8,000/- can be awarded in this
head.
9. In Paragraph 7 of the impugned award the Tribunal
observed like this:- "Ext.A7 is the disability certificate which
shows that he has a permanent disability of 13.70%. This is
properly proved by PW2 the doctor who issued the certificate"
After concluding like this, the Tribunal observed subsequently
like this in the same Paragraph:- " Therefore considering the
disability certificate and evidence of PW2 and considering the
age of the petitioner his loss of earning capacity can be
assessed at 5%" No reason is mentioned to reduce the
percentage of disability after finding that Ext.A7 is proved by
examining PW2 Doctor.
MACA.No.2801 OF 2012
10. The Apex Court in Pappu Deo Yadav v. Naresh
Kumar and others [AIR 2020 SC 4424] after considering a
plethora of decisions on a point 'permanent disability' has held
that the inquiry that has to be conducted by the Court is the
resultant loss of income generating capacity of the claimant.
The principle to be followed by the court in assessing motor
vehicles compensation claims is to place the victim in the
same position as he was before the accident. The Bench
referred to the earlier decisions in Syed Sadiq and others v.
Divisional Manager, United India Insurance Company
[2014 (2) SCC 735] and Raj Kumar v. Ajay kumar and
anr. [2011 (1) KLT 620 (SC)] and held that the court should
not adopt a stereotypical or myopic approach, but instead,
view the matter taking into account the realities supplied,
both in the assessment of extent of disabilities and
compensation under various heads.
11. In the light of above principle, according to me,
Ext.A7 can be accepted and the permanent disability can be
fixed as 13.70%. In that circumstances, the permanent
disability is to be reassessed in the following manner:
MACA.No.2801 OF 2012
10,000 x 12 x 9 x 13.70/100 = 1,47,960/-
From the above amount, the amount already awarded is
to be deducted. Then the balance amount will be:
1,47,960 - 27,000 = 1,20,960/-
The appellant is entitled an amount of Rs.15,000/-
towards amenities also. Therefore, the enhanced
compensation entitled by the appellant can be summerized
like this:
Loss of amenities = Rs.15,000/-
Loss of Earning = Rs.60,000/-
Pain and suffering = Rs. 8,000/-
Permanent Disability = Rs.1,20,960/-
_______________
Total = Rs.2,03,960/-
50% of the amount is to be reduced because the
Tribunal found that there is contributory negligence on the
part of the appellant/petitioner. Then the balance enhanced
MACA.No.2801 OF 2012
amount entitled by the petitioner will be;
2,03,960 = Rs.1,01,980/-
Interest at the rate of 7.5% from the date of application
till realization.
Therefore, the appeal is allowed in part, the appellant is
entitled an enhanced compensation of Rs.1,01,980/- with
interest at the rate of 7.5% per annum from the date of
application till realization. The 3 rd respondent is directed to
pay the enhanced compensation with interest.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
VPK
