Kerala High Court
Pradeepkukmar.K.G vs Sabu on 24 March, 2021
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MACA.No.184 OF 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
MACA.No.184 OF 2013
AGAINST THE AWARD IN OPMV 439/2009 DATED 24-02-2012 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/S:
PRADEEPKUKMAR.K.G.
KOMASSERRIYIL HOUSE, MALAM P.O., MANARCADU,
KOTTAYAM.
BY ADV. SRI.P.M.NATESAN
RESPONDENT/S:
1 SABU,VETTIKKADU HOUSE, NEENDOOR P.O., KOTTAYAM,
PIN-686601.
2 KOCHUMON @ THOMAS SKARIAH
PALATHRA HOUSE, THIRUVANCHOOR P.O., PIN-686037.
3 THE NEW INDIA ASSURANCE CO. LTD.
KOTTAYAM, PIN-686001.
4 THOMAS L.
THARATHATTEL HOUSE, THIRUVANCHOOR, KOTTAYAM, PIN-
686037 ( DELETED AS PER ORDER DATED 25.2.2021 IN IA
1/2021 IN MJC 293/2019 IN MACA 184/2013)
5 SUNIL KURIAKOSE
KOTTATHIL HOUSE, CHAPPATHU, AMAYANNOOR P.O.,
AYARKUNNAM, PIN 686025.
BY ADV. SRI.GEORGE CHERIAN THIRUVALLA
BY ADV. SRI.A.K.HARIDAS
BY ADV. SRI.K.S.MURALIKRISHNAN NAIR
BY ADV. SMT.PINKU H.THALIATH
BY ADV. SRI.T.M.RAMAN KARTHA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 24-03-2021, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:
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MACA.No.184 OF 2013
C.S.DIAS, J.
======================
MACA No.184 of 2013
======================
Dated this the 24th day of March, 2021.
JUDGMENT
The appellant was the petitioner in OP(MV)
439/2009 on the file of the Motor Accidents Claims
Tribunal, Kottayam. 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 sustained by
him in an accident on 11.09.2008.
3. The case of the petitioner, in brief, was that
while he was travelling in an auto rickshaw bearing
registration No.KL 5/H 1124 driven by the second
respondent along the Malam - Thiruvanchoor road,
while the auto risckshaw reached near
MACA.No.184 OF 2013
Kizhakkedathupady, a car bearing registration No.KL
5/A 511, driven by the fifth respondent at excessive
speed, hit on the auto rickshaw and the petitioner
sustained injuries. He was taken to the Matha Hospital,
Thellakam and, thereafter, to the Medical Trust Hospital,
Ernakulam. The second respondent was the driver of the
auto rickshaw and the fifth respondent was the driver of
the car. The accident occurred due to the negligence on
the part of the second and fifth respondents. The first
respondent is the registered owner of the auto rickshaw
and the same was insured with the third respondent.
The fourth respondent is the registered owner of the car.
The petitioner was employed abroad and was getting a
monthly income of Rs.35,000/-. Hence, the respondents
1 to 5 are liable to compensate the petitioner, which he
quantified at Rs.5,33,500/-.
4. The respondents 1,2,4 and 5 did not contest
the proceedings and were set ex parte.
5. The third respondent - the Insurance Company
- filed a written statement, inter alia, contending that
MACA.No.184 OF 2013
the accident did not occur due to the negligence on the
part of the second respondent - the driver of the auto
rickshaw. The accident occurred only due to the
negligence on the part of the fifth respondent - the
driver of the car. The second respondent was not
holding a valid driving licence as on the date of accident.
Moreover, the second respondent was under the
influence of alcohol. Even though the auto rickshaw had
a valid insurance policy, as there was a violation of the
policy conditions, the third respondent was not liable to
pay any amount as compensation. Hence, the claim
petition as against the third respondent be dismissed.
6. The petitioner marked Exts A1 to A8 in
evidence. The respondents did not let in any evidence.
7. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed the
claim petition, in part, by directing the third respondent
to pay an amount of 1,59,435/- with interest at the rate
of 7.5% per annum from the date of petition till the date
of realisaton with proportionate costs and then realise
MACA.No.184 OF 2013
the amount from the first respondent.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
9. Heard Sri.P.M.Natesan, the learned counsel
appearing for the appellant/petitioner, Smt.Latha Susan
Cherian, the learned counsel appearing for the third
respondent/third respondent and Smt.Pinku H. Thaliath,
the learned counsel appearing for the fifth
respondent/fifth respondent.
10. The question that emanates for consideration
in the appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just.
11. Ext A3 charge-sheet filed by the Manarcadu
Police, after the investigation in crime No.187/2008,
substantiates that the accident occurred due to the
negligence on the part of the second respondent, who
drove the auto rickshaw in a rash and negligent manner.
Ext A5 wound certificate and Ext A6 discharge
summary establishes that the petitioner was hospitalized
in the Medical Trust Hospital for a period of 18 days.
MACA.No.184 OF 2013
Ext A7 series medical bills also prove the amount that
was spent by the petitioner for his medical treatment.
12. The principal dispute in the appeal is with
regard to the notional income of the petitioner fixed by
the Tribunal and also the quantum of compensation
awarded by the Tribunal under the head 'loss due to
permanent disability'.
13. The petitioner had alleged that he was
employed abroad and was drawing a monthly salary of
Rs.35,000/-. The petitioner had not produced any
material to substantiate the said assertion. In the said
circumstances, the Tribunal fixed the notional monthly
income of the petitioner at Rs.4,000/-.
14. The petitioner has only passed his
matriculation examination.
15. The Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13
SCC 236] and Syed Sadiq v. Divisional Manager,
United India Insurance Co. Ltd. [(2014) 2 SCC 735]
MACA.No.184 OF 2013
has fixed the notional monthly income of a coolie worker
for an accident in the year 2004 @ Rs.4,500/- and that
the vegetable vendor for an accident that occurred in
the year 2008 @ Rs.6,500/-. Similarly, the Hon'ble
Supreme Court in Pushkar Mehra vs. Brij Mohan
Kushwala and others (2015) 12 SCC 688] has fixed
the notional monthly income of a skilled
labourer/technical supervisor for an accident that
occurred in the year 2010 @ Rs.7,000/-.
Notional Income
16. Following the above parameters laid down by
the Hon'ble Supreme Court in the aforecited decisions, I
am of the opinion that the petitioner's notional income
can safely be fixed at Rs.7,500/- per month.
Permanent Disability
17. Coming to the alleged permanent disability of
the petitioner, it is undisputed fact that the petitioner
did not subject to himself for any medical examination,
to assess his alleged disability. Nevertheless, the
Tribunal after seeing the petitioner, assessed his
MACA.No.184 OF 2013
functional disability at 2%. In view of the fact that there
is no other further material that was produced before
the Tribunal, I find that the assessment made by the
Tribunal, which is the fact finding Forum, is justifiable
and reasonable and not to be interfered by this Court at
this distance of time.
Loss of earnings and loss due to disability
18. In view of the refixation of the notional income
of the petitioner, the compensation under the head 'loss
of earnings' has to be enhanced to Rs.22,500/- instead
of Rs.12,000/- fixed by the Tribunal. Similarly, the
compensation under the head 'permanent disability' has
to be enhanced to Rs.25,400/- instead of Rs.13,440/-
fixed by the Tribunal.
Pain and sufferings
19. Coming to the compensation under the head
'pain and sufferings', even though the petitioner had
claimed an amount of Rs.50,000/-, the Tribunal had only
awarded an amount of Rs.19,000/-. It is on record that
the petitioner had dislocated his hip and sustained two
MACA.No.184 OF 2013
fractures. He was admitted in the hospital as inpatient
for a period of 18 days. In such circumstances, I am of
the considered opinion that the petitioner is entitled for
compensation under the head ' pain and sufferings' at
Rs.40,000/- instead of Rs.19,000/- awarded by the
Tribunal.
Other heads of claim
20. With respect to other heads of claim, namely,
transportation, extra nourishment, damage to clothing,
bystander expenses, medical expenses and loss of
amenities, I find that the Tribunal has awarded
reasonable and just compensation.
21. On an overall re-appreciation of the pleadings,
materials on record and the law laid down by the
Hon'ble Supreme Court in the afore-cited decisions, I am
of the firm opinion that the appellant/petitioner is
entitled for enhancement of the compensation as
modified and re-calculated above, and given in the table
below for easy reference.
MACA.No.184 OF 2013
SI. Head of claim Amount Amounts
No awarded (in modified and
rupees) recalculated
by this Court
1 Transportation 2,650/- 2,650/-
2 Extra nourishment 1,000/- 1,000/-
3 Damage to clothing 500/- 500/-
4 Bystander expenses 3,600/- 3,600/-
5 Medical expenses 92,245/- 92,245/-
6 Loss of earning 12,000/- 22,500/-
7 Pain and sufferings 19,000/- 40,000/-
8 Loss of amenities 15,000/- 15,000/-
9 Permanent disability 25,400/-
13,440/-
Total 1,59,435/- 2,02,895/-
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.43,460/- (Rupees Forty Three Thousand Four
Hundred and Sixty only) with interest at the rate of
7.5% per annum from the date of petition till the date of
realisation on the enhanced compensation excluding
the period of 225 days as ordered by this Court in CM
Appln 212/2013 and proportionate costs. The third
respondent shall deposit the enhanced compensation
awarded in this appeal before the Tribunal with interest
and proportionate costs within a period of two months
from the date of receipt of a certified copy of the
MACA.No.184 OF 2013
judgment. The disbursement of the enhanced
compensation to the appellant/petitioner shall be done,
in accordance with law. Needless to mention that after
the third respondent deposits the enhanced
compensation, it would be at liberty to recover the said
amount as found in the impugned award from the first
respondent.
Sd/-
C.S.DIAS
SKS/27.3.2021 JUDGE
