Kerala High Court
Saji K. Babu vs Shaheer Ali A.K on 20 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
SATURDAY, THE 20TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943
MACA NO. 2358 OF 2018
AGAINST THE AWARD IN OPMV 345/2014 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,KALPETTA, WAYANAD
APPELLANT/PETITIONER:
SAJI K. BABU
S/O.BABU, AGED 39 YEARS, KADAKKAL HOUSE,
KOLAGAPPARA POST, KRISHNAGIRI VILLAGE,
SULATHANBATHERY TALUK, MEENANAADI (VIA),
WAYANAD DISTRICT.
BY ADVS.
SRI.TONY THOMAS (INCHIPARAMBIL)
SRI.P.THOMAS GEEVERGHESE
RESPONDENTS/RESPONDENTS:
1 SHAHEER ALI A.K
AGED 23 YEARS, S/O.MUHAMMED BASHEER,
AYYAPPANKANDATHIL HOUSE, KAIPPANCHERI,
MANDANNIKKUNNU, SULTHAN BATHERY TALUK,
WAYANAD DISTRICT - 673 591
(DRIVER OF SCOOTER NO.KL-73/1535)
2 MUHAMMED BASHEER
S/O.KUNHID, AGED 50 YEARS, AYYAPPANKANDATHIL HOUSE,
KALPPANCHERI, MANDANNIKKUNNU, SULTHAN BATHERY POST,
WAYANAD - 673 591 [OWNER OF THE SCOOTER NO.KL-73/1535].
3 TATA AIG GENERAL INSURANCE CO.LTD.
REGD.OFFICE, PENINSULA BUSINESS PARK, TOWER A,
15TH FLOOR, GANPATRAOKADAM MARG, OFF SENAPATI, BAPAT
MARG, LOWER PAREL, MUMBAI - 400013, MAHARASHTRA STATE,
[INSURER OF SCOOTER NO.KL-73/1535]
[POLICY NO.015265279100]
BY ADV
SRI.R.AJITH KUMAR (128/84)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 2358 OF 2018
2
JUDGMENT
This is an appeal submitted by the petitioner in OP(MV)
No.345/2014 on the files of Motor Accident Claims Tribunal, Kalpetta.
The claim petition was submitted by the appellant seeking compensation
for the injuries sustained to him in a motor accident occurred on
28.04.2014. He was aged 35 years and claimed to be a contractor with a
monthly income of Rs.25,000/- (Rupees twenty five thousand). The
appellant contended that he sustained serious injuries in the accident and
the Medical Board has issued a disability certificate wherein the
percentage of permanent disability suffered by him was certified as 6%.
On the basis of the same, an amount of Rs.3,00,000/- (Rupees three
lakhs only) was claimed as compensation.
2. The respondents 1 and 2 filed a joint written statement,
disputing the negligence on their part. It was also contended by them
that if at all it was found that they are liable to pay the compensation the
same has to recovered from the Insurance Company as the vehicle was
covered with a valid insurance policy at the relevant time.
3. The 3rd respondent Insurance Company filed a written
statement disputing the negligence and quantum of compensation
MACA NO. 2358 OF 2018
claimed. However, the coverage of policy in respect of vehicle was
admitted.
4. Evidence in this case consists of Exts.A1 to A9 and Ext.C1
disability certificate issued by the District Medical Board,
Mananthavady.
5. After the trial, the Tribunal found that the accident occurred
due to the negligence of the 1 st respondent and being the insurer of the
vehicle, the 3rd respondent was found liable to pay compensation. The
quantum of compensation was fixed as Rs.1,88,350/- (Rupees one lakh
eighty eight thousand three hundred and fifty only). The Tribunal
directed the 3rd respondent to deposit the said amount along with interest
at the rate of 9% per annum from the date of petition till realisation
along with proportionate cost. Being dissatisfied with the said
compensation this appeal is filed.
6. Heard Sri.Tony Thomas Inchiparambil, learned counsel for
the appellant and Sri.R.Ajith Kumar, learned counsel for the 3 rd
respondent Insurance Company.
7. The main contention put forward by the learned counsel for
the appellant is that the amount of compensation awarded by the
MACA NO. 2358 OF 2018
Tribunal is very low. It was pointed out that the monthly income taken
by the Tribunal is only Rs.5,000/- which is extremely on lower side. It
was also pointed out that no amount was granted under the head of loss
of amenities. Similarly the amounts awarded under the head of 'Loss of
earnings' and 'Transport to Hospital' and 'Pain and sufferings' are also
on lower side.
8. On the other hand, the learned counsel for the insurance
company would seriously oppose the same by pointing out that the
amounts awarded by the Tribunal are reasonable and no interference is
warranted.
9. The first aspect to be taken into consideration is the monthly
income taken by the Tribunal, which is Rs.5000/-. This is an accident
occurred in the year 2014. It is true that even though the appellant
claimed that he was a contractor, no evidence could be adduced by him
to establish the same. However, even in the absence of any evidence to
that effect, the monthly income of Rs.5,000/- in respect of the accident
occurred in the year 2014 is very low. In my view whatever be the
nature of avocation, a claimant who sustained injuries in an accident in
the year 2014 requires compensation by taking the monthly income at
MACA NO. 2358 OF 2018
much higher rate than Rs.5000/-. In Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Co. Ltd. [(2011) 13 SCC 236] and
Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.
[(2014) 2 SCC 735], the Hon'ble Supreme Court was pleased to lay
down the guidelines in this regard and by following the principles laid
down therein, this Court is consistently fixing the basic monthly income
as Rs.4,500/- for the year 2004 and used to make an addition of Rs.500/-
each per year for reckoning the monthly income in respect of the
accidents occurred in subsequent years. While adopting the said method
of assessment, which is practical in nature, the monthly income in this
case can be reasonably fixed as Rs.9,500/- as the accident has occurred
in the year 2014. While re-working the compensation under the head of
'Permanent disability', with the above revised monthly income, the total
amount comes to Rs.1,09,440/- (9500x12x16x6%). The Tribunal has
already awarded an amount of Rs.57,600/- under this head and therefore,
the balance amount receivable by the appellant shall be Rs.51,840/-.
10. It is seen that no amount is awarded under the head of 'Loss
of amenities'. I am of the view that compensation under the head of
'Loss of amenities' is an indispensable part of compensation in a case of
MACA NO. 2358 OF 2018
injury. Under no circumstances that can be denied to a victim. In the
facts and circumstances of the case, I am of the view that a
compensation Rs.30,000/- under this head, would do justice to the
appellant. Similarly, amount awarded by the Tribunal under the head of
'Pain and suffering' is Rs.30,000/- and in the facts and circumstances of
the case, particularly in the light of the date of accident and nature of
injuries, I am of the view that a further sum of Rs.10,000/- can be
granted to the appellant.
11. Further, consequent to the revision of monthly income as
Rs.9,500/-, the appellant is entitled for additional amount under the head
of 'Loss of earning'. The amount already awarded by the Tribunal under
this head is Rs.25,000/- which was calculated at the rate of Rs.5,000/-
for a period of five months. In the light of revision of monthly income
as Rs.9,500/- the amount of compensation receivable by the appellant is
fixed as Rs.47,500/- (9500x5). As the Tribunal has already awarded
Rs.25,000/-, the additional amount entitled to by the appellant is
Rs.22,500/-. Similarly, the learned counsel for the appellant further
pointed out that some additional amount is to be granted under the head
of 'Transportation', as he is a resident of Wayanad and the treatment
MACA NO. 2358 OF 2018
availed by him was at Baby Memorial Hospital, Kohikode. Several
times he was forced to travel from Wayanad to Kozhikode. The amount
awarded by the Tribunal is Rs.2,500/-. In the facts and circumstances of
the case I am of the view that a further sum of Rs.2,500/- can be granted.
Accordingly, the additional amount receivable by the appellant is
fixed as Rs.1,16,840/- (Rupees one lakh sixteen thousand eight hundred
and forty only) (51,840+30000+10000+22500+2500). The 3 rd
respondent insurance company shall deposit the said amount along with
interest and proportionate cost as ordered by the Tribunal, within a
period of 3 months from the date of receipt of a copy of this judgment.
It is made clear that while computing the interest the insurance company
shall be entitled to exclude 775 days' as it was the period of delay in
filing the appeal and the aforesaid delay was condoned by this Court in
C.M.Appl. No.2694/18, subject to such condition.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
scs
