Kumaresan vs Chinnamma
2021 Latest Caselaw 22784 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
   SATURDAY, THE 20TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943
                        MACA NO. 2313 OF 2016
  AGAINST THE ORDER/JUDGMENT IN OPMV 680/2012 OF MOTOR ACCIDENT
                     CLAIMS TRIBUNAL ,ERNAKULAM.
APPELLANT/PETITIONER:

           KUMARESAN
           AGED 44 YEARS
           S/O NARAYANAPILLA, AGED 44, PATTIKULAM HOUSE, NANNIYODE
           P.O. PALAKKAD DISTRICT

           BY ADVS.
           SRI.MATHEWS K.PHILIP
           SMT.MINISHA K DAS


RESPONDENTS/RESPONDENTS:

    1      CHINNAMMA
           W/O MANI, VELIYIL HOUSE, ATHANI KEERELIMALA, KUSUMAGIRI
           P.O, KAKKANAD

    2      ANTONY
           S/O VARGHESE, ALACHIRA HOUSE, ATHANI,KEERELIMALA,
           KUSUMAGIRI P.O, KAKKANAD, KOCHI-30

    3      THE DIVISIONAL MANAGER
           M/S SHRIRAM GENERAL INSURANCE COMPANYB LTD. AZAD TOWER,
           AMMAN KOVIL CROSS ROAD, ERNAKULAM

           BY ADVS.
           SRI.P.JACOB MATHEW
           SRI.K.JANARDHANAN
           SMT.P.C.JEEVA
           SRI.MATHEWS JACOB SR.
           SRI.K.J.MANU RAJ


    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. 2313 OF 2016             2

                               ORDER

Appeal under Section 173 of the Motor Vehicles Act, 1988. The

appellant was the petitioner in OP(MV) No. 680/2012 on the file of the

Motor Accidents Claims Tribunal, Ernakulam. The respondents in the

appeal were the respondents before the Tribunal.

2. The appellant had filed the claim petition under Section 166

of the Act, claiming compensation on account of the injuries that he

sustained in an accident on 26/01/2012. It was his case that, on the

aforesaid day at 12.00 p.m., he was a pillion rider on a motor cycle

bearing registration No. KL-7 AZ-413 along Seaport-Airport road and

when reached at Poojari Valavu, an autorikshaw bearing registration No.

KL-7BQ 5689 driven by the 2nd respondent came in a rash and negligent

manner and hit on his motor cycle and thereby the appellant fell down

and suffered injuries. Immediately after the accident he was taken to Co-

operative Hospital, Kalamassery and from there to Lissie Hospital,

Ernakulam. Thereafter, he was treated as an inpatient at the Jubilee

Hospital, Thrissur. He sustained fracture of right lateral tibial condyle

and abrasions all over the body. The appellant was a wood cutter by

profession and earning a monthly income of Rs. 400/- per day. The

accident occurred due to the negligence of the 2 nd respondent, who was

the driver of the autorikshaw. The 1 st respondent is the owner of the

autorickshaw and the same was insured with the 3 rd respondent. The

appellant claimed a compensation of Rs. 2,00,000/- from the respondents.

3. The 3rd respondent had filed a written statement refuting the

allegations. The 3rd respondent also disputed the age, income and

occupation of the appellant in the claim petition. However, the 3 rd

respondent admitted that the vehicle had a valid insurance coverage at the

time of accident but there was no permit for the offending autorickshaw

and the driver has no valid driving licence at the time of accident.

4. Exts.A1 to A24 were marked in evidence from the side of

claimants.

5. The Tribunal, after analysing the pleadings and materials

on record, by its award dated 20.12.2014, allowed the claim petition in

part, by permitting the appellant to recover from the 3 rd respondent an

amount of Rs. 80,700/-, with interest and costs.

6. Dissatisfied with the quantum of compensation awarded by

the Tribunal, the appellant is in appeal.

7. Heard the learned counsel appearing for the appellant and

the learned counsel appearing for the 3rd respondent.

8. The sole question that arises for consideration in this

appeal is whether the quantum of compensation awarded by the

Tribunal is just and reasonable.

9. The learned counsel appearing for the appellant submitted

that the Tribunal did not take into consideration the fact that the

appellant is a wood cutter requiring special skill and therefore his

claim that he was getting for Rs. 400/- per day as reasonable.

Appellant was not examined as a witness before the court. No

documents is available also to prove that he was a wood cutter.

Considering the matter in detail, I am of the view that his income

cannot be fixed as that of a skilled labour as he claimed. Therefore his

income can be taken notionally only. Following ratio laid down by the

Apex Court in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [(2011) 13 SCC 236], and

considering the fact that the accident occurred on 26.01.2012, I hold

that the appellant's notional income can taken as Rs.8,500/- per month.

10. The learned counsel appearing for the appellant pointed out

that the compensation assessed under the heads of 'loss of earnings' as

well as for continuing and permanent disabilities requires revision.

Having notional income been taken as 8,500/- per month both those

heads requires revision.

11. The learned counsel appearing for the appellant also

contented that the compensation for 'pain and suffering' awarded by the

Tribunal is less. In considering the nature of injuries sustained, the

learned Tribunal awarded Rs. 30,000/- as against the claim of Rs.

60,000/- for pain and suffering. Having regard to the nature of

injuries, apart from main fracture in lateral tibial condyle the other

injuries are simple in nature, I am of the view that a slight increase is

required. Therefore, I re-fix the compensation for pain and suffering as

Rs. 35,000/-.

12. In view of the fixation of the notional monthly income of

the appellant at Rs. 8,500/- per month, the 'loss of earnings' fixed by

the Tribunal is revised and re-fixed as Rs.34,000/- in total. Therefore

increase shall be Rs. 18,000/-.

13. In view of the fixation by the Tribunal of an amount of Rs.

7,200/- as compensation for permanent disability, I re-fix the

compensation for 'permanent disability' at Rs. 15,300/- (Rs. 8,500 x

12 x 15 x 1/100 = Rs. 15,300/-) i.e. an enhancement of Rs. 8100/-.

14. With respect to other heads of compensation, I find that the

Tribunal has awarded reasonable and just compensation.

15. In the result, the appeal is allowed in part, by enhancing the

compensation by an amount of Rs.31,100/- with interest at the rate of

8% per annum except for 495 days in view of the order of waiver

while condoning the delay in filing the appeal, on the enhanced

amount, from the date of petition till the date of deposit, and a costs of

Rs.2,000/-. The 3rd respondent is ordered to make payment of the

enhanced compensation with interest and costs through the Tribunal

within sixty days from the date of receipt of a certified copy of the

judgment. The Tribunal shall see that the amount of enhanced

compensation is duly disbursed to the appellant in accordance with

law.

Sd/-

P.G.AJITHKUMAR, JUDGE

rps/