Ajikumar vs Subin
2022 Latest Caselaw 9867 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
    WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944

                        MACA NO. 1173 OF 2013

 OP(MV)NO.147/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL

APPELLANT/PETITIONER:

           AJIKUMAR, S/O.THANKAPPAN, KONIL KUNNUMPURATHU VEEDU,
           ALAMPARA, ANADU, PALODE VILLAGE.

           BY ADV SRI.M.R.SARIN


RESPONDENTS/RESPONDENTS:

     1     SUBIN, S/O.SUDARSANAN, ALAMPARA, PACHA P.O., NANNIYODE,
           NEDUMANGAD - 695 003.

     2     THE NATIONAL INSURANCE CO.LTD.
           II FLOOR, SOUNDARYA BUILDING, PULIMOODU, M.G.ROAD,
           THIRUVANANTHAPURAM - 695 003.

           R2 BY ADV SMT.P.K.SANTHAMMA



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 26.08.2022, THE COURT ON 31.08.2022 DELIVERED THE FOLLOWING:
 MACA 1173 of 2013              2



                      JUDGMENT

This appeal has been preferred by the claimant in

OP(MV)No.1470 of 2007 on the file of Motor Accidents

Claims Tribunal, Attingal, challenging inadequacy of the

compensation awarded by the Tribunal.

2. The appellant, a 44 year old man, met with a road

traffic accident on 15.09.2007 at 7.30 a.m. While he was

standing at Nandiyode junction, KL 21/8541 motorcycle

ridden by the 1st respondent in a rash and negligent manner

knocked him down and he sustained injuries including

central fracture dislocation of right hip. He was taken to

Medical College Hospital, Thiruvananthapuram, where he

was treated as an In Patient for 6 days. He approached the

Tribunal claiming compensation of Rs.1,50,000/-. But the

Tribunal awarded only a meager amount of Rs.4,000/-,

which is under challenge in this appeal.

3. The 1st respondent was the owner-cum-rider of the

offending motorcycle and the 2nd respondent was the

Insurer. The accident, injuries and the policy are not

disputed by the 2nd respondent-Insurer.

3. No oral evidence was adduced from either side

Exts.A1 to A9 were marked from the side of

appellant/claimant. The Tribunal found that the appellant

suffered only two abrasions, feeling of pain and tenderness

of spine and awarded only Rs.4,000/- as compensation.

4. Ext.A6, the Treatment Certificate says that there

was central fracture dislocation of right hip. Ext.A7

Discharge Card shows that he was admitted in Medical

College Hospital, Thiruvananthapuram on 15.09.2007 and he

was discharged on 21.09.2007. That Certificate further

shows that there was pain on hip, abrasion on left ankle and

left knee and movement of hip was restricted coupled with

spinal tenderness. It was further noted in that Discharge

Card that there was central fracture acetabulum hip.

Learned Tribunal without noting those injuries came to the

conclusion that there were only two abrasions and feeling of

pain and awarded only a nominal amount of Rs.4,000/- as

compensation.

5. According to the appellant, he was a Peon by

profession. He produced Ext.A9 Salary Certificate issued

from SNV Higher Secondary School to show that he was on

leave for 76 days in connection with the road traffic

accident. He took commuted leave for 15 days and half pay

leave for the remaining period. His salary was Rs.6,176/-

including House Rent Allowance. If at all he was paid during

the period of commuted leave and he received half pay

during the period of half pay leave, if this accident had not

happened, he could have utilized that leave for his own

purposes, and so, he is eligible to get compensation for loss

of his leave, at the same rate as of his salary. So for 76 days

of leave, excluding HRA, he is entitled to get Rs.15,266/-

(2.5 months X 6026).

6. Towards transportation expenses, Rs.1,000/- is to

be awarded, towards damaged clothing Rs.500/- is awarded,

towards bystander expenses and extra nourishment, he is

entitled to get Rs.1,200/- each at the rate of Rs.200/- per

day as he was hospitalised for 6 days.

7. Towards pain and suffering, Rs.15,000/- is allowed

as the Discharge Certificate shows that he had suffered

central fracture acetabulum hip and he was on leave for 76

days in connection with the accident.

8. Though Ext.A8 medical prescription is produced by

the appellant, no medical bills are there to prove the

treatment expenses. Since he was treated at Medical College

Hospital, Thiruvananthapuram, he might not have expended

any amounts towards treatment.

9. There is nothing to show that he had suffered any

permanent disability due to the accident. So, he is not

eligible to be compensated under that head.

Head of claim Amount Amount Difference to be awarded by awarded in drawn as the Tribunal appeal enhanced compensation

Loss of leave ..... Rs.15,266/- Rs.15,266 /-

Transportation ...... Rs.1,000/- Rs.1,000/- expenses

Damaged ...... Rs.500/- Rs.500/- clothing

Bystander ...... Rs.1,200/- Rs.1,200/- expenses

Extra nourishment ..... Rs.1,200/- Rs.1,200/-

Pain and Rs.15,000/- Rs.15,000/- suffering

Total Rs.34,166/-

Tribunal already awarded Rs.4,000/-

Enhanced compensation is 30,166/- (34,166 - 4,000)

10. In the result, the appellant is entitled to get

compensation of Rs.34,166/-. He was already paid

Rs.4,000/- by the Tribunal. So he is eligible to get the

balance amount of Rs.30,166/- (Rupees Thirty Thousand

One hundred and Sixty Six only) as enhanced

compensation.

11. The 2nd respondent-Insurer has got a case that the

1st respondent owner-cum-rider was not having a valid

Driving Licence at the time of accident and so the Insurer is

not liable to indemnify the insured. They filed I.A.No.7388

of 2008 before the Tribunal calling upon the 1st respondent

to produce his Driving Licence. But, he failed to produce the

Driving Licence. So adverse inference is drawn against him

holding that he had no Driving Licence at the time of

accident. But as the Insurer is admitting the policy, they

have to deposit the compensation amount, and thereafter,

they can recover the amount so deposited, from the 1st

respondent owner-cum-rider.

12. In the result, the 2nd respondent-Insurer is directed

to deposit the enhanced compensation of Rs.Rs.30,166/-

(Rupees Thirty Thousand One hundred and Sixty Six only) in

the Bank account of the appellant with 8% interest from the

date of petition till realisation 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. After depositing the

amount, the 2nd respondent can recover that amount from

the 1st respondent-owner and his assets.

The appeal is allowed accordingly. No order as to

costs.

Sd/-

SOPHY THOMAS JUDGE DSV/27.08.2022