P.A.Unnikrishnan vs Suresh.A.R. & Others
2021 Latest Caselaw 21313 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                     MACA NO. 419 OF 2010
 AGAINST THE AWARD IN OP(MV) 87/2002 OF MOTOR ACCIDENTS
                  CLAIMS TRIBUNAL, KALPETTA
APPELLANT/PETITIONER :

           P.A.UNNIKRISHNAN, S/O.APPU,
           PANDIYATH HOUSE, CHULLIYODE POST,
           S.BATHERY TALUK, WAYANAD DISTRICT.
           BY ADV SMT.CELINE JOSEPH


RESPONDENTS/RESPONDENTS:

    1      SURESH.A.R., S/O.RAJAPPAN,
           ANCHALAYIL HOUSE, KAYYUNNI POST,
           NILGIRI DISTRICT.
    2      VINU ISSAC,
           KURUNGATTIL HOUSE,
           THOVARIMALA POST, S.BATHERY.
    3      THE BRANCH MANAGER,
           NATIONAL INSURANCE CO. LTD.,
           BRANCH OFFICE, KALPANA SHOPPING COMPLEX,
           MAIN ROAD, KALPETTA.
    4      SAVI MATHEW, S/O.MATHEW,
           VELLAPALLIL HOUSE,
           THOVARIMALA P.O., AMBUKUTHI.
           R3 BY SRI.E.M.JOSEPH, STANDING COUNSEL

        THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.419 of 2010                 ..2..




                         M.A.C.A.No.419 of 2010
           -------------------------------------------------------


                             JUDGMENT

Being aggrieved by the award dated 29.08.2008 in

O.P.(MV)No.87 of 2002 on the file of the Motor Accidents Claims

Tribunal, Kalpetta, the original petitioner has filed this appeal

arraying respondents 1 to 4 in the party array.

2. Brief facts of the case are as follows:-

The case of the petitioner Unnikrishnan is that on

09.06.1999 at about 3.00 p.m., he was travelling as a pillion

rider in the Motorcycle No.KL-12A/3216 ridden by supplemental

R4 and when the vehicle reached near Kayyunni Fathima

Matha Church, it hit against the Jeep which came from the

opposite direction and thereby he sustained serious injuries.

He was taken to the Priya Nursing Home, S.Bathery wherein he M.A.C.A.No.419 of 2010 ..3..

was treated as an inpatient till 16.06.1999. The accident

occurred due to the rash and negligent riding of motorcycle by

supplemental R4. R2 and R3 are the owner and insurer of the

motorcycle respectively at the time of accident. All the

respondents are jointly and severally liable to pay the

compensation to the petitioner. Hence this petition.

3. While assailing the award of the Tribunal, the

learned counsel for the appellant would submit that the

amount granted by the Tribunal is on lower side. It is

submitted further that though Ext.A4 comprehensive policy

covering the risk of pillion rider also had been produced before

the Tribunal, the Tribunal without addressing the real issue

passed a passive order whereby the company was exonerated

from the liability though Ext.A4 policy produced by the

petitioner would substantiate liability on the part of the

insurance company since the insurance company collected

premium towards own damage and third party by issuing a

policy titling 'comprehensive policy'.

M.A.C.A.No.419 of 2010 ..4..

4. On perusal of Ext.A4, policy issued by the

company, its title itself is 'comprehensive policy'. Apart from

that, Rs.620/- was collected towards gross amount under two

heads viz., own damage and third party. Going by the title as

well as the premium collected, Ext.A4 policy is a policy

covering the risk of the appellant as well. The learned counsel

for the insurance company also conceded that Ext.A4 is a

comprehensive policy. In view of the matter, the Tribunal went

wrong in exonerating the company from the liability, as such,

the said finding is set aside and it is held that the insurance

company is liable to indemnify the insured and to pay

compensation to the appellant.

5. To be on the question as to insufficiency of the

quantum fixed by the Tribunal, it is submitted by the learned

counsel for the appellant that the appellant sustained very

serious injuries including fracture right ankle medial malleolus

and lacerated wound 2 inch right foot. Accordingly, he was

admitted and treated for a period of six days from 09.06.1999 M.A.C.A.No.419 of 2010 ..5..

to 15.06.1999. However, the Tribunal calculated disability

income by fixing monthly income of the appellant as

Rs.2,100/-, though the appellant being a coolie worker claimed

the income at the rate of Rs.3,000/-. In 2004, the income of a

coolie was fixed at Rs.4,500/- by the Honourable Supreme

Court in [(2011) 13 SCC 236], Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Company

Ltd. Therefore, there is no justification for the Tribunal to

reduce the monthly income at the rate of Rs.2,100/- as against

the claim of Rs.3,000/-. In view of the matter, the monthly

income of the appellant for the purpose of compensation is

refixed at Rs.3,000/- and thus the disability income is

recalculated as under;

3,000x12x15x6% = 32,400/-

6. The Tribunal granted Rs.26,680/- accepting 6%

disability, which is in dispute, by fixing monthly income of

Rs.2,100/- per month. Therefore, the appellant is entitled to M.A.C.A.No.419 of 2010 ..6..

get enhanced compensation of Rs.32,400-22,680 = 9,720/-.

7. Apart from that, the submission of the learned

counsel for the appellant is that only Rs.1,000/- was granted on

the head loss of earnings and the same is quite insufficient.

Going by the malleolus fracture and consequential treatment,

the appellant is entitled to get loss of earnings for a period of

three months atleast. In view of the matter, the loss of

earnings entitled to the appellant is recalculated as Rs.9,000/-.

After reducing Rs.1,000/- granted by the Tribunal, the appellant

is entitled to get Rs.8,000/- more under this head. It is

submitted by the learned counsel for the appellant further that

the Tribunal granted only Rs.5,000/- under the head pain and

sufferings and no amount under the head loss of amenities was

granted. Perusal of the award would substantiate the said

contention. Therefore, considering the nature of injuries and

the consequential treatment, Rs.17,000/- can be granted

towards pain and sufferings and the appellant is entitled to get

Rs.12,000/- more under this head. Similarly, Rs.15,000/- can M.A.C.A.No.419 of 2010 ..7..

be granted under the head loss of amenities also.

In the result, this appeal is allowed in part. It is

ordered that the appellant is entitled to get enhanced

compensation to the tune of Rs.44,720/-(Rupees Forty Four

Thousand Seven Hundred and Twenty only) at the rate of 6%

interest granted by the Tribunal excluding the amount already

granted by the Tribunal from the date of petition till the date of

deposit or realisation and it is specifically ordered that the third

respondent is liable to pay the amount. Therefore, the

insurance company is directed to deposit the amount after

depositing the court fee, if any, in the name of the Tribunal

within two months from today.

Sd/-

A.BADHARUDEEN, JUDGE rkj