Kerala High Court
M.Radhakrishnan vs Allimuthu on 1 September, 2021
MACA NO. 1251 OF 2011
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
MACA NO. 1251 OF 2011
AGAINST THE UDGMENT IN OPMV 291/1998 OF ADDITIONAL MOTOR
ACCIDENTS CLAIMS TRIBUNAL ,PALAKKAD
APPELLANT/PETITIONER:
M.RADHAKRISHNAN, S/O.LATE VENUKUTTY NAIR,
AGED 63 YEARS, SANGEETH, CHEMMANAMKADU, KANJIKODE,
PALAKKAD TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.BINOY VASUDEVAN
SMT.P.G.BABITHA
RESPONDENTS/RESPONDENTS:
1 ALLIMUTHU,S/O.P.A KUNJAPPAN,
AGED 53 YEARS, RESIDING AT MANNATHU HOUSE,
K.N.PUTHUR, KANJIKODE, PALAKKAD TALUK,, PALAKKAD
DISTRICT.
2 THE ORIENTAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, P.B.NO.20, SOBHA TSM COMPLEX,
V.H.ROAD,, PALAKKAD TOWN, PALAKKAD TALUK, PALAKKAD
DISTRICT.
BY ADVS.
SRI.K.ANAND
SRI.GEORGE CHERIAN THIRUVALLA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 1251 OF 2011
2
JUDGMENT
The appellant was the petitioner in O.P(MV)
No.291/1998 on the file of the Additional Motor
Accidents Claims Tribunal, Palakkad. The respondents in
the appeal were the respondents before the Tribunal.
2. The appellant had filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988
claiming compensation on account of the injuries that he
sustained in an accident on 21.6.1997.
3. The facts in brief, relevant for the
determination of the appeal, are: on 21.6.1997 while the
appellant was travelling on his scooter bearing Reg.
No.KL9C-2769 from Pudussery through Palakkad-
Coimbator National Highway, when the appellant
carefully entered the sub road to go to the industrial area,
the 1st respondent who was riding his motorcycle
bearing Reg.No.KL9D-9324 (motorcycle) in a rash and
MACA NO. 1251 OF 2011
negligent manner, hit the scooter of the appellant. The
appellant was thrown on the road and sustained grievous
injuries, including a fracture on the femur left side,
multiple injuries - compound depressed fracture and
fronto naso ethmodial with CSF rhinorrhea. He was
treated as an inpatient at the Kovayoor Medical Centre
and Hospitals Limited from 21.6.1997 to 7.8.1997. The
motorcycle was owned by the 1st respondent and insured
with the 2nd respondent. The appellant was an Office
Assistant (Finance) in Pre-cot (A) Mills Pudussery,
Palakkad and drawing a monthly salary of Rs.5,975/-.
The appellant claimed a total compensation of
Rs.10,00,000/- from the respondents.
4. The 1st respondent filed a written statement
contending that the accident occurred due to the
negligence of the appellant. He also filed O.P (MV)
No.1460/1997 before the same Tribunal seeking
compensation from the appellant and the 2nd respondent.
MACA NO. 1251 OF 2011
5. The 2nd respondent filed written statements in
both the claim petitions contending that the appellant and
the 1st respondent were charge-sheeted by the Police for
contributory negligence. It was also contended that the
amount of compensation sought for is excessive and
exorbitant.
6. The Tribunal consolidated and jointly tried the
original petitions.
7. The 1st respondent, the appellant and the
employer of the appellant were examined as PW1 to PW3
and Exts.A1 to A14 were marked in evidence. The 2 nd
respondent produced Ext.B1 charge-sheet and marked it
in evidence. Ext.X1 medical report was marked as a
third party exhibit.
8. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed the
claim petition filed by the appellant, in part, but found
that the appellant was guilty for contributory negligence
MACA NO. 1251 OF 2011
to the extent of 50%, and allowed a compensation of
Rs.7,20,163/-, but deducted 50% of the compensation
amount and held that the appellant is entitled to only an
amount of Rs.3,60,082/- with interest at the rate of 7.5%
per annum from the date of petition till the date of
payment. The 2nd respondent was directed to pay the
compensation amount.
9. Dissatisfied with the quantum of compensation ,
the petitioner is in appeal.
10. Heard; Sri.Binoy Vasudevan, the learned
counsel appearing for the appellant/petitioner and
Sri.George Cherian, the learned counsel appearing for the
2nd respondent -insurer.
Negligence and liability
11. Ext.B1 charge-sheet filed by the Walayar Police
in Crime No.120/1997 clearly proves that the accident
occurred due to the negligence of the appellant as well as
the 1st respondent.
MACA NO. 1251 OF 2011
12. In fact, the 1st respondent had challenged the
impugned award before this Court in MACA
No.1635/2012, wherein the appellant was the 1 st
respondent.
13. This Court by judgment dated 13.2.2019, upheld
the finding of the Tribunal that both the appellant and the
1st respondent were guilty for contributory negligence in
the ratio of 50:50. In the light of the judgment of this
Court confirming the finding of the Tribunal, that both the
appellant and the 1st respondent were guilty for
contributory negligence, the said finding operates as res-
judicata against the appellant as it is an inter-party
judgment between the parties in MACA 1635/2012. Thus,
I confirm the finding of the Tribunal with regard to the
contributory negligence on the part of the petitioner to
the extent of 50%.
Notional income
14. The appellant had claimed that he was employed
MACA NO. 1251 OF 2011
as an Office Assistant (Fin) in Pre-cot (A) Mills,
Pudussery, Palakkad. He had produced Exts.A13 and A14
salary certificates, which were proved through PW3, to
substantiate that the appellant was drawing a monthly
salary of Rs.7,648/- in the month of June, 2007.
15. Nevertheless, the Tribunal, for want of any
material as regards the appellant's salary in the year
1997, fixed the notional income of the appellant at
Rs.4,500/-.
16. Going by the uncontroverted oral testimony of
PW3 and Exts.A13 and A14, salary certificates, I find that
an amount of Rs.5,000/- can safely be fixed as the notional
income of the appellant in the year 1997. Accordingly, I
re-fix the notional income of the appellant at Rs.5,000/-
per month.
Disability
17. The disability of the appellant was assessed by a
four Member Medical Board attached to the Medical
MACA NO. 1251 OF 2011
College Hospital, Thrissur. The Medical Board, after
examining the appellant, fixed his whole body disability
at 59.3%. The said finding of the Medical Board in
Ext.X1 was accepted by the Tribunal and the appellant's
disability was fixed at 59.3%.
18. In Pappu Deo Yadav v Naresh Kumar and
others [AIR 2020 SC 4424] and Anthony @
Anthonyswamy v. Managing Director, Karnataka
State Road Transport Corporation [2020 SCC ONLINE
493], the Hon'ble Supreme Court has held that in cases
where the claimants sustain serious injuries, they are
also entitled for future prospects.
19. Following the ratio in the aforecited decisions
and taking into account the fact that the appellant
sustained serious disability to the extent of 59.3% and he
was aged 49 years on the date of accident and the
relevant multiplier being '13', I hold that the appellant is
entitled for future prospects at 25% on the compensation
MACA NO. 1251 OF 2011
for loss due to disability'.
Loss due to disability
20. Taking into account the abovementioned factors,
namely, the monthly income of the appellant at Rs.5,000/-,
disability at 59.3%, the multiplier at 13 and the future
prospects at 25%, I hold that the appellant is entitled for
compensation under the head 'loss due to disability' at
Rs.5,78,175/-.
Pain and suffering
21. The appellant had claimed an amount of
Rs.25,000/- under the head 'pain and suffering'. However,
the Tribunal only awarded an amount of Rs.15,000/ under
the said head.
22. Taking into account the serious injuries
sustained by the appellant and that he was incapacitated
for a period of 10 months and has sustained 59.3%
permanent disability as per Ext.X1, I am of the firm
MACA NO. 1251 OF 2011
opinion that the appellant is entitled for compensation
under the head 'pain and suffering', as claimed for in the
claim petition, at Rs.25,000/-.
Loss of amenities
23. The appellant had claimed an amount of
Rs.4,00,000/- under the head ' loss of earning power' due
to the disability suffered by him. Taking into account the
serious injuries that the appellant sustained as held under
the head 'pain and suffering', especially the fact that he
has sustained a permanent disability of 59.3%, I award an
amount of Rs.50,000/- towards 'loss of amenities'.
Loss of earnings
24. In view of the re-fixation of the notional income
of the appellant at Rs.5,000/- per month, I hold that the
appellant is entitled for loss of earnings at Rs.50,000/-.
MACA NO. 1251 OF 2011
Other heads of claim
25. With respect to the other heads of compensation,
I find that the Tribunal has awarded reasonable and just
compensation.
20. On a comprehensive re-appreciation of the
pleadings and materials on record and the law laid down
in the afore-cited decisions, I am of the definite opinion
that the appellant/petitioner is entitled for enhancement
of compensation as modified and re-calculated above and
given in the table below for easy reference.
SI. Head of claim Amount awarded Amounts
by the Tribunal (in modified and
No rupees) recalculated
by this Court
1 Loss of earning 45,000 50,000
2. Bystander expenses 3,700 3,700
4. Extra-nourishment 3700 3,700
MACA NO. 1251 OF 2011
5. Medical expenses 2,36,227 2,36,227
6. Pain and suffering 15,000 25,000
7. Loss of amenities --- 50,000
8. Loss due to disability 4,16,286 5,78,175
Total 7,20,163-50%= 9,47,052-50%
3,60,082 =4,73,526
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.1,13,444/- with interest at the rate of 7.5% per annum
on the enhanced compensation from the date of petition
till the date of deposit, after deducting the interest for a
period of 331 days, i.e, the period of delay in preferring
the appeal and as ordered by this Court on 06.06.2019 in
C.M.Appli. No.1899 of 2011, and a cost of Rs.3000/-. The
2nd respondent is ordered to deposit the enhanced
compensation awarded in the appeal before the Tribunal
MACA NO. 1251 OF 2011
with interest and costs within a period of two months
from the date of receipt of a certified copy of the
judgment. The compensation shll be disbursed by the
Tribunal to the appellant/petitioner in accordance with
law.
ma Sd/- C.S.DIAS, JUDGE
/True copy/
