Kerala High Court
Babu K.M vs Avarachan K on 26 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
MACA NO. 1555 OF 2013
OP(MV)NO.971/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
MUVATTUPUZHA
APPELLANT/PETITIONER:
BABU K.M.,
S/O. PAILY, RESIDING AT KANATTUMALAYIL HOUSE, KADATHY,
AMBALAMPADY, MEKADAMBU P.O., MUVATTUPUZHA.
BY ADVS.
SMT.ANEY PAUL
SRI.PHILIP J.VETTIKATTU
RESPONDENTS/RESPONDENTS:
*1 AVARACHAN K., S/O. PATHROSE, KOLLAMPADICKAL HOUSE,
EZHIPURAM, AIKARANADU, PERUMBAVOOR-683542.(DELETED)
2 THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD., KOLENCHERY-682311.
*RESPONDENT NO.1 IS DELETED FROM PARTY ARRAY AT THE RISK OF
APPELLANT VIDE ORDER DATED 18.05.2020 IN IA.NO.1 OF 2020 IN
MACA 1555/2013
BY ADV SRI.AGI JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 23.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING:
MACA 1555 of 2013 2
JUDGMENT
This appeal has been preferred by the claimant in
OP(MV)No.971 of 2008 on the file of the Motor Accidents
Claims Tribunal, Movattupuzha, challenging the inadequacy
of the compensation awarded.
2. On 01.10.2008, at 8.15 p.m., while the appellant
was walking through the side of the national highway at
Mekkadamb, KL-17/B-6115 motorcycle ridden by the 1st
respondent in a rash and negligent manner, knocked him
down and he sustained serious head injuries. He was
hospitalised for 29 days and he suffered permanent disability
also because of the accident. He approached the Tribunal
claiming compensation of Rs.6,46,000/-. But the Tribunal
awarded only Rs.2,16,210/- after deducting 10% towards
contributory negligence. Challenging the same, he has come
up with this appeal.
3. The respondent-Insurance Company is not disputing
the accident, injuries or the policy of the offending vehicle.
4. Let us see whether there is any illegality or
impropriety so as to interfere with the impugned award.
5. According to the appellant, he was a 49 year old
Coolie, earning monthly income of Rs.6,000/- at the time of
accident. The Tribunal took his notional income as
Rs.3,000/- in the absence of evidence to prove his income.
Since he was a Coolie, going by the decision
Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [AIR 2011 SC
2951], he was eligible to get his notional income fixed @
Rs.6,500/- as the accident was in the year 2008. But even
according to him, his monthly income was only Rs.6,000/-
and so, he is not eligible to get his income fixed beyond that.
So, his notional income is fixed at Rs.6,000/-.
6. The Tribunal assessed loss of earning for 8 months.
@Rs.6,000/- per month, he was eligible to get Rs.48,000/-
towards loss of earning. After deducting Rs.24,000/-
already paid, he is eligible to get Rs.24,000/- as enhanced
compensation towards loss of earning.
7. For pain and suffering, he was given Rs.25,000/-.
He was hospitalised for one month with severe head injury.
So, this Court is inclined to award Rs.10,000/- more
towards pain and suffering.
8. Towards loss of amenities, he was given
Rs.20,000/-. Since he had suffered head injury with 15%
permanent disability, this Court is inclined to award
Rs.10,000/- more towards loss of amenities.
9. Towards bystander expenses, he was paid @
Rs.100/- alone for 28 days of hospitalisation. He was
eligible to get Rs.200/- per day and so, Rs.2,800/- more is
awarded towards bystander expenses.
10. Towards extra nourishment, Rs.2,000/- more is
awarded as he was hospitalised for one month with head
injury.
12. Towards permanent disability of 15% proved
through Ext.C1, he was awarded Rs.70,200/- taking his
monthly income as Rs.3,000/-. We have fixed his monthly
income as Rs.6,000/-. So, he is eligible to get Rs.70,200/-
more as enhanced compensation for permanent disability.
13. Under all other heads the compensation awarded is
reasonable and it need not be interfered with.
Head of claim Amount Amount Difference to be
awarded by awarded in drawn as
the Tribunal appeal enhanced
compensation
Loss of earning Rs.24,000/- Rs.48,000/- Rs.24,000 /-
Pain and Rs.25,000/- Rs.35,000/- Rs.10,000/-
suffering
Loss of Rs.20,000/- Rs.30,000/- Rs.10,000/-
amenities
Bystander Rs.2,800/- Rs.5,600/- Rs.2,800/-
expenses
Extra
nourishment Rs.3,000/- Rs.5,000/- Rs.2,000/-
Permanent Rs.70,200/- Rs.1,40,400/- Rs.70,200/-
disability
Total Rs.1,19,000 /-
14. So, the total amount towards enhanced
compensation will come to Rs.1,19,000/- (24,000 +
10,000+ 10,000+ 2,800 +2,000 + 70,200)
15. The Tribunal found that the accident occurred at
the tarred portion of the road and the road at that place was
straight. Though the Tribunal found that even if the claimant
was walking through the tarred portion of the road, if the
rider was riding the motorcycle at a normal speed, the
accident could have been averted. Even then, the Tribunal
reduced 10% of the compensation amount towards
contributory negligence from the part of the appellant only
because of the fact that the accident occurred at the tarred
portion of the road. The roads are meant for pedestrians
also and only because of the fact that the accident occurred
at the tarred portion, we cannot jump into a conclusion that
there was contributory negligence from his part. If the rider
was carefully riding the motorcycle at a normal speed, he
could have averted that accident, since the road at that
place was straight with distant vision, as seen from the
scene mahazar. So the Tribunal was not justified in reducing
10% of the compensation towards contributory negligence.
Moreover, the rider was chargesheeted for his rash and
negligent riding of the motorcycle.
16. In the result, the appellant is entitled to get 10%
of the award amount i.e., Rs.24,023/- which was reduced by
the Tribunal, along with enhanced compensation of
Rs.1,19,000/- totaling Rs.1,43,023/-. (Rupees One Lakh
Forty Three Thousand and Twenty Three only).
17. The respondent-National Insurance Company is
directed to deposit Rs.1,43,023/- (Rupees One Lakh Forty
Three Thousand and Twenty Three only) in the Bank account
of the appellant with 8% interest per annum from the date
of original petition till realisation (excluding 17 days of delay
in filing the appeal) within a period of two months from the
date of receipt of a copy of this judgment. The deposit must
be in terms of the directives issued by this Court in Circular
No.3 of 2019 dated 06/09/2019 and clarified in
O.M.No.D1/62475/2016 dated 07/11/2019 after deducting
the liabilities, if any, of the appellant towards Tax, balance
court fee and legal benefit fund.
The appeal is allowed accordingly. No order as to costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/25.08.2022
