Anzar vs Aneer
2021 Latest Caselaw 21306 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                THE HONOURABLE MR. JUSTICE T.R.RAVI
   FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                       MACA NO. 1363 OF 2012
 AGAINST THE AWARD DATED 15.03.2011 IN OPMV 73/2005 OF MOTOR
 ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA, THIRUVANANTHAPURAM


APPELLANTS/APPLICANTS:

    1        ANZAR
             S/O.MYTHEENKANNU, PLAVILA HOUSE, NEAR S.B.T.
             BALARAMAPURAM BRANCH, BALARAMAPURAM P.O.,
             TRIVANDRUM, REP. BY NEXT FRIEND RAJEENA,
             (2ND APPELLANT AS IN OP(MV)73/2005)
    2        RAJEENA
             D/O.SALHA BEEVI, W/O.ANZAR, - DO - -DO-
             BY ADVS.
             SRI.AYYAPPAN SANKAR
             SMT.S.HRIDYA


RESPONDENTS/RESPONDENTS:

    1        ANEER
             S/O.ABBAS, 53/1375, KARACKAMANDAPAM,
             NEMOM P.O., TRIVANDRUM, PIN - 695 020.
    2        M/S.THE ORIENTAL INSURANCE CO. LTD.
             DIVISIONAL OFFICE NO.I, ROHINI BUILDINGS,
             THAKARAPARAMBU JUNCTION, TRIVANDRUM, PIN - 673 004.
    3        R.O.SAJAN
             S/O.RAJAMONY, ROSE BHAVAN, PAMBUKALA,
             PUTHIYATHURA P.O., KANJIRAMKULAM,
             NEYYATTINKARA, PIN - 673 004.
    4        M/S.THE ORIENTAL INSURANCE CO. LTD.
             DIVISIONAL OFFICE NO.I, ROHINI BUILDINGS,
             THAKARAPARAMBU JUNCTION,
             TRIVANDRUM, PIN - 673 004.
             BY ADV SRI.A.R.GEORGE, FOR R2 & R4

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 28.09.2021, THE COURT ON 29.10.2021 DELIVERED THE
FOLLOWING:
 M.A.C.A. No. 1363 of 2012
                                   2




                             T.R. RAVI, J.
              --------------------------------------------
                      M.A.C.A. No. 1363 of 2012
               --------------------------------------------
               Dated this the 29th day of October, 2021

                             JUDGMENT

The 1st appellant was travelling as a pillion rider in a

motorcycle driven by one Saju Kumar. Another motorcycle driven

in a rash and negligent manner by the 3rd respondent hit against

the motorcycle in which the appellant was travelling and he

sustained grievous injuries. A claim petition was filed claiming

₹8,00,000/- towards compensation and the Tribunal awarded a

sum of ₹3,53,975/- with 9% interest. There is also a further

direction to deduct 15% of the amount awarded since the

appellant was not wearing a protective head gear at the time of

the accident. Even though the claim was initially preferred by the

1st appellant, his wife was later impleaded as next friend and the

wife is the 2nd appellant in this appeal.

2. Heard Sri Ayyappan Sankar, learned counsel for the

appellants and Sri.A.R.George, learned counsel for respondents 2

and 4.

3. When the matter was pending before this Court, this M.A.C.A. No. 1363 of 2012

Court had by order dated 15.11.2019 directed the 1 st appellant to

appear before the Medical Board to assess the permanent

disability. On the basis of the said order, the 1 st appellant had

appeared before the Medical Board of the Medical College

Hospital, Thiruvananthapuram. The Board has submitted a report

dated 30.12.2020 before this Court stating that the 1st appellant

has a disability of 81%.

4. The learned counsel for the appellants hence

contended that the compensation has to be reworked based on

the disability found by the Medical Board. It is further submitted

that the Tribunal has calculated the compensation payable under

the head loss of earnings and permanent disability on the basis of

a notional income of ₹3,000/- per month. Since the accident

occurred in 2004, the notional income ought to have fixed at

₹4,500/- per month and having regard to the fact that the 1 st

appellant was only 31 years old at the time of the accident, 40%

of the income should have been added towards future prospects

also. The above contention is justified in the light of the

judgment in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951]

and other binding judgments of the Apex Court. Since the report M.A.C.A. No. 1363 of 2012

of the Medical Board is available before the Court, I am not

reiterating the details of the injury suffered by the 1 st appellant.

The learned counsel for the appellants also submitted that the

amounts granted under the heads bystander expenses and pain

and sufferings are also very meager, having regard to the

injuries, the disability suffered by the 1 st appellant, 60 days of

inpatient treatment and the continuing treatment. The said

submission is also justified. The learned counsel for the insurer

pointed out that the appeal was initially dismissed and it was

restored on the basis of an application which was filed with a

delay of 1082 days. By order dated 23.09.2019, this Court had

restored the appeal on condition that the 1 st appellant will not be

entitled to interest for the period of delay of 1082 days in

preferring the petition for restoration. It is also pointed out that

the appeal was filed with a delay of 313 days. It is hence

submitted that the 1st appellant will not be entitled to interest for

the period of 1395 days (1082+313), if any enhanced

compensation that is found to be entitled by this Court. On going

through the records, I find that the delay of 313 days in filing the

appeal was condoned without the condition regarding

disentitlement to claim interest.

M.A.C.A. No. 1363 of 2012

5. Having considered the contentions on either side, I am

of the opinion that the amount awarded by the Tribunal is liable

to be enhanced. The appellants will be entitled to an additional

sum of ₹6,000/- as compensation towards bystander expenses

and an additional sum of ₹45,000/- for compensation towards

pain and suffering. The notional income of the 1 st appellant is

fixed at ₹6,300/- per month (4500x140%). On the above basis,

the 1st appellant will be entitled to a sum of ₹37,800/- towards

loss of earnings. After deducting the sum of ₹18,000/- awarded

by the Tribunal, the 1st appellant will be entitled to an additional

compensation of ₹19,800/- under the head loss of earnings. So

also, the 1st appellant will be entitled to a sum of ₹9,79,776/-

towards compensation for permanent disability (6300x12x16

x81%). After deducting a sum of ₹2,30,400/- awarded by the

Tribunal, the 1st appellant will be entitled to an additional

compensation of ₹7,49,376/- under the head compensation for

permanent disability.

6. In the result, the appeal is allowed. The 1st appellant

is awarded an additional compensation of ₹8,20,176/- (Rupees

Eight Lakh Twenty Thousand One Hundred and Seventy Six

only) with interest at 9% from the date of filing of the claim M.A.C.A. No. 1363 of 2012

petition (18.01.2005) till the date of realisation, with

proportionate costs, excluding interest for the period of delay of

1082 days in preferring the petition for restoration of appeal

which was dismissed for default. The 2 nd respondent insurer shall

deposit the additional compensation granted in this appeal along

with the interest and proportionate costs, before the Tribunal

within two months from the date of receipt of a certified copy of

this judgment, after deducting any amount to which the

appellants are liable towards balance court fee and legal benefit

fund. The disbursement of the compensation to the appellants

shall be in accordance with law.

Sd/-

T.R. RAVI JUDGE

Pn