Jomy Joseph Joy vs Binoy Mathew
2022 Latest Caselaw 9689 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
                         MACA NO. 2251 OF 2009
    AGAINST THE AWARD IN OPMV 74/2007 OF MOTOR ACCIDENT CLAIMS
                            TRIBUNAL, PALA
APPELLANT/PETITIONER:

             JOMY JOSEPH JOY
             S/O.JOY, AGED 22 YEARS,
             POOTHKUZHIYIL HOUSE, VELLIYEPPALLY KARA,
             MEENACHIL VILLAGE, KOTTAYAM DISTRICT.
             BY ADVS.
             SHIJU VARGHESE
             PRAMOJ ABRAHAM
             RENDEEP PREM


RESPONDENTS/RESPONDENTS 1 AND 2:

    1        BINOY MATHEW
             S/O.MATHEW VARKEY,
             EDAPPANADU HOUSE, CHOORALI BHAGAM,
             KANJIRAMATTOM KARA, THODUPUZHA VILLAGE,
             ERNAKULAM DISTRICT.
    2        THE NATIONAL INSURANCE COMPANY LIMITED
             REPRESENTED BY ITS BRANCH MANAGER,
             IST FLOOR, PULIMOOTTIL SHOPPING ARCADE,
             THODUPUZHA, ERNAKULAM DISTRICT.
             BY ADV K.S.SANTHI


     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 2251 OF 2009
                               2



                           JUDGMENT

This appeal is at the instance of the petitioner in

O.P.(MV) No.74/2007 on the file of the Motor Accidents

Claims Tribunal, Palai, challenging award dated

10.10.2008 in the above case, arraying respondents

before the Tribunal as respondents herein.

2. Heard both sides.

3. The brief facts of the case are as follows:

The appellant, who alleged to have sustained

injuries pursuant to a motor accident occurred at

about 6 p.m. on 06.11.2006, while he was riding

motorcycle bearing registration No.KL-5/S-4678,

through Pala - Ettumanoor road and when the

motorcycle was dashed by a Maruti Esteem bearing

registration No.KL-5/M-1796, driven by the first

respondent in a rash and negligent manner, had lodged MACA NO. 2251 OF 2009

claim petition under Section 166 of the MV Act before

the Tribunal, alleging negligence on the part of the

second respondent and claimed compensation.

4. The first respondent remained ex parte

before the Tribunal

5. The second respondent Insurance Company

filed written statement disputing accident and

attributing negligence on the part of the appellant on

the ground that he had ridden his motorcycle at the

time of accident, without licence. Apart from that,

quantum of compensation was also disputed.

6. The Tribunal ventured the matter, relying on

Exts. A1 to A11 marked on the side of the appellant. No

evidence let in by the respondents.

7. The first challenge raised in this appeal is

finding of 25% contributory negligence on the part of

the appellant on the ground that he did not possess a MACA NO. 2251 OF 2009

valid driving license at the time of accident since he

met with an accident while riding on his motorcycle. In

this matter, as per Ext.A6 final report, the Police laid

charge against the first respondent, who had driven car

bearing registration No.KL-5/M-1796 at the time of

accident. The Tribunal found contributory negligence

without much discussion, merely on the ground that

the appellant did not possess a valid driving license to

drive his motorcycle. I do not think that as against the

police charge, mere absence of driving license of the

appellant alone would suffice to find contributory

negligence. Therefore, contributory negligence found

by the Tribunal cannot be sustained. Therefore, the

same stand set aside.

8. Coming to the quantum of compensation, it is

submitted by the learned counsel for the appellant that

the Tribunal not considered 12% disability assessed as MACA NO. 2251 OF 2009

per Ext.A10 disability certificate issued by

Dr.C.Padmakumar, Consultant, Orthopedic Surgeon,

Kottayam. He submitted further that in this matter, the

appellant sustained fracture both bones right leg and

he underwent treatment for a period of 8 days from

06.11.2006 to 13.11.2006 and in the disability

certificate, mal-union was stated as a reason for

assessing 12% disability.

9. I have gone through the discharge summary

produced as Ext.A8 and the same does not suggest

that any mal-union or any infirmities after the removal

of POP applied for reunion of the fracture stated above.

Therefore, 12% disability as such cannot be considered

in this case. However, I am inclined to increase the

same at 10%. In this matter, Rs.2,000/- is the monthly

income claimed by the appellant and the Tribunal

accepted the same as such. Therefore, I am not MACA NO. 2251 OF 2009

inclined to re-visit the same. Apart from that, the

Tribunal applied '16' as the multiplier. The same is

wrong since '18' is the proper multiplier applicable to

the age group between 21 to 25, where the appellant

was aged 21 at the time of accident. Therefore, the

disability income is re-calculated as under:

2,000 x 12 x 18 x 10% = 43,200/-

Out of which, Rs.34,560/- was granted by the

Tribunal. Thus, Rs.8,640/- (43,200 - 34,560) more is

granted under the head 'loss of disability income'.

10. The learned counsel for the appellant would

submit that since the appellant sustained both bone

fracture, he is entitled to get more amount under the

head 'pain and suffering' as well as 'loss of amenities'.

In this matter, the Tribunal granted Rs.18,000/- under

the head 'pain and suffering' and Rs.9,000/- under the

head 'loss of amenities'. Considering both bone MACA NO. 2251 OF 2009

fracture as evident from Ext.A8, I am inclined to grant

Rs.7,000/- more under the head 'pain and suffering'

and Rs.6,000/- more under the head 'loss of

amenities'.

11. In this matter, the Tribunal assessed the total

compensation entitled by the appellant at Rs.94,460/-

and granted Rs.70,845/- after finding 25% contributory

negligence on the part of the appellant. Since

contributory negligence stands set aside, the appellant is

entitled to get total compensation amounting to

Rs.1,16,100/- (94,460 + 21,640) .

In the result, this appeal stands allowed. It is

ordered that the appellant is entitled to get Rs.1,16,100/-

(Rupees one lakh sixteen thousand and one hundred

only) as total compensation with 9% interest, payable by

the second respondent, from the date of petition till the

date of deposit or realisation.

MACA NO. 2251 OF 2009

The Insurance Company is directed to deposit the

amount in the name of the appellant within two months

from today, excluding the amount, if any, already

deposited and on deposit, the appellant can withdraw

the same.

Sd/-

A. BADHARUDEEN JUDGE

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