Kerala High Court
E.C.Joy vs I.C.Shajil on 15 February, 2022
MACA NO. 2813 OF 2012
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
MACA NO. 2813 OF 2012
AGAINST THE ORDER/JUDGMENT IN OPMV 342/2005 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,THRISSUR
APPELLANT/S:
E.C.JOY, S/O CHACKO, RESIDING AT ELUVATHINGAL HOUSE,
P.O AVINISSERY, THRISSUR DISTRICT
BY ADVS.
SRI.T.C.SURESH MENON
SRI.P.S.APPU
SRI.A.R.NIMOD
RESPONDENT/S:
1 I.C.SHAJIL
S/O CHANDRAN, RESIDING AT IRUDUKAVIL HOUSE,
KALADITHARA P.O, SUKAPURAM, EDAPPAL, MALAPPURAM
DISTRICT 676505
2 E.A ASOKAN
S/O RAMAN, RESIDING AT EARAT ARAKKAL HOUSE,
PUDUPONNANI, MALAPPURAM DISTRICT 676505
3 THE UNITED INDIA INSURANCE COMPANY LIMITED
BRANCH OFFICE, WESTERN WING, AMBADY BUILDING,
PONNANI, MALAPPURAM DISTRICT 679577
4 JOSEPH
S/O THOMAS, RESIDING AT THAIKKADAN HOUSE, P.O,
RAMAVARMAPURAM, THRISSUR DISTRICT 680631
5 SUNIL KUMAR
S/O NARAYANAN, RESIDING AT KOTTILINGAL HOUSE, P.O,
KANDANASSERY, KUNNAMKULAM, THRISSUR DISTRICT, 680102
MACA NO. 2813 OF 2012
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6 THE ORIENTAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDING,
M.G. ROAD, THRISSUR 680001
BY ADVS.
SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU
SRI.GEORGE CHERIAN THIRUVALLA
SRI.K.S.MADHUSOODANAN
SRI.K.S.MIZVER
SRI.P.K.RAKESH KUMAR
SRI.THOMAS CHAZHUKKARAN
SRI.M.M.VINOD KUMAR
SRI.P.K.MANOJKUMAR
SRI.K.S.MADHUSOODANAN
SMT. LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 2813 OF 2012
3
JUDGMENT
The appellant was the petitioner in OP(MV) No.342/2005
on the file of the Motor Accidents Claims Tribunal, Thrissur.
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 sustained to him in an accident on
14.06.2004. It was his case that, on the above said date, while
he was traveling in a bus bearing registration No.KL 8.X 5593
from Kozhikode to Thrissur, driven by the 5 th respondent, the
bus was hit by another bus bearing registration No.KL.10J
1341, driven by the 2nd respondent. The accident occurred due
to the negligence of the drivers of both the buses. The buses
were owned by the respondents 1 and 4 and insured with the
respondents 3 and 6, respectively. The appellant was a cleaner
by profession and was earning a monthly income of Rs.5,000/-.
Hence, the appellant had claimed a compensation of
Rs.2,27,000/- from the respondents, which claim was limited to
Rs.2,00,000/-.
MACA NO. 2813 OF 2012
3. Another injured in the same accident had also filed
OP(MV) No.343/2005 before the same Tribunal, against the
respondents, seeking compensation.
4. The respondents 1, 2, 4 and 5 did not contest the
proceedings and were set ex-parte.
5. The respondents 3 and 6 had filed separate written
statements denying the allegations in the claim petitions and
attributing negligence as against the drivers of the other buses.
The respondents 3 and 6 also disputed the age, income and
occupation of the petitioners in the two claim petitions.
6. The Tribunal had consolidated and jointly tried the two
claim petitions.
7. The petitioners had produced and marked Exts.A1 to
A11 in evidence. The 3rd respondent had produced Exts.B1 and
B2 insurance policies.
8. The Tribunal, after analysing the pleadings and
materials on record, allowed the captioned claim petition in
part, by permitting that the appellant to recover an amount of
Rs.79,400/- from the respondents 3 and 6, the insurers of the
two buses with interest.
MACA NO. 2813 OF 2012
9. Dissatisfied with the quantum of compensation awarded
by the Tribunal, the petitioner is in appeal.
10. Heard Sri. T.C. Suresh Menon, the learned counsel
appearing for the appellant/petitioner, Sri. P.K. Manojkumar,
the learned counsel appearing for the 3 rd respondent, Sri. K.S.
Madhusoodanan, the learned counsel appearing for the 4th
respondent and Smt. Latha Susan Cherian, the learned counsel
appearing for the 6th respondent.
11. The point that arises for consideration in the appeal is
whether the quantum of compensation awarded by the Tribunal
is reasonable and just ?
Negligence and Liability
12. The Tribunal, on the basis of Ext.A3 final report,
arrived at the conclusion that the accident occurred due to the
negligence of the respondents 2 and 5. I confirm the said
finding. The respondents 1 and 4 were the owners of the two
buses and the respondents 3 and 6 were the insurers of the
buses. As the respondents 3 and 6 have not proved that the
owners had violated the insurance policy conditions, the
respondents 3 and 6 are to indemnify the liability of the owners
MACA NO. 2813 OF 2012
arising out of the accident in equal proportion.
Income
13. The appellant had claimed that he was a cleaner by
profession and was earning a monthly income of Rs.5,000/-. For
want of materials, the Tribunal fixed the notional monthly
income of the appellant at Rs.3,000/-.
14. In Ramachandrappa vs. Manager, Royal
Sundaram Alliance Insruance Company Ltd. : (2011) 13
SCC 236, the Honourable Supreme Court has fixed the notional
income of a coolie worker in the year 2004 at Rs.4,500/- per
month.
15. Following the yardstick in the afore-cited decision and
considering the fact that the accident occurred in the year
2004, I refix the notional monthly income of the appellant at
Rs.4,500/-.
Loss of earnings
16. The Tribunal found that the appellant was indisposed
for a period of three months. I confirm the said finding.
17. However, in view of the refixation of the notional
MACA NO. 2813 OF 2012
monthly income of the appellant at Rs.4,500/- per month, I refix
his 'loss of earnings' at Rs.13,500/-, instead of Rs.9,000/-
awarded by the Tribunal.
Bystander expenses
18. It is proved that the appellant was treated as an
inpatient for a period of nine days. However, the Tribunal
awarded only an amount of Rs.1,800/- under the head
bystander expenses.
19. Taking into account the fact that the accident occurred
in the year 2004, I award the appellant Rs.300/- per day for a
period of nine days towards 'bystander expenses' which works
out to Rs.2,700/-.
Disability
20. The appellant had produced Ext.A5 disability
certificate issued by an Orthopaedic Surgeon of the
Government Medical College Hospital, Thrissur. The Doctor has
assessed the disability of the appellant at 11% due to the
fracture of middle third shaft of the humerus with 20%
angulation. However, the Tribunal scaled down the disability to
6%.
MACA NO. 2813 OF 2012
21. In Rajkumar vs. Ajaykumar [(2011) 1SCC 343], the
Honourable Supreme court has categorically held that in an
injury claim, if the Tribunal is not satisfied with the disability
certificate produced before the Tribunal, the Tribunal has to
refer the injured/claimant to a Medical Board. More over, it is
also observed that if the disability is marked in evidence with
the consent of the parties, the same can be accepted in
evidence. Likewise, it is also held that what needs to be looked
into is the functional disability of the injured/claimant.
22. In the instant case Ext.A5 was marked in evidence
without any protest or objection from the respondents. The
Tribunal also did not refer the appellant to a Medical Board.
Therefore, I accept Ext.A5 in evidence.
23. On an appreciation of Ext.A5 it is seen that the
appellant had a fracture of middle third shaft of the humerus
right with 20% angulation. Considering the fact that he was a
cleaner by profession, I fix his 'functional disability' at 10%.
Multiplier
24. The appellant was aged 31 years at the time of the
accident. In the light of the law laid down in Sarla Varma vs.
MACA NO. 2813 OF 2012
Delhi Transport Corporation [2010 (2) KLT 802], the relevant
multiplier to be adopted is '16'.
Loss due to disability
25. Taking into account the above mentioned factors
namely, notional monthly income of the appellant at Rs.4,500/-,
his functional disability at 10% and the multiplier at 16, I award
the appellant an amount of Rs.86,400/- towards 'loss due to
disability', instead of Rs.34,560/- awarded by the Tribunal.
Pain and sufferings and loss of amenities
26. On a consideration of the fact that the appellant was
treated as an inpatient for a period of nine days, that he
suffered a disability of 10% and that he was indisposed for a
period of three months, I award him a further amount of
Rs.5,000/- under the head 'pain and suffering' and Rs.6,000/-
under the head 'loss of amenities'.
27. With respect to the other heads of compensation, I
hold that the Tribunal has awarded reasonable and just
compensation.
28. On a comprehensive re-appreciation of the pleadings
and materials on record and the law referred to in the afore-
MACA NO. 2813 OF 2012
cited precedents, I hold that the appellant/petitioner is entitled
for enhancement of compensation as modified and recalculated
above and given in the table below for easy reference.
Sl. Head of claim Amount Amount
No. awarded by awarded by
the Tribunal this Court
(in Rs.) (in Rs.)
1. Loss of earnings 9,000 13,500
2. Transportation expenses 3,000 3,000
3. Bystander expenses 1,800 2,700
4. Medical expenses 2,039 2,039
5. Pain and sufferings 15,000 20,000
6. Loss of amenities 14,000 20,000
7. Loss due to disability 34,560 86,400
Total Rs.79,399 1,47,639
rounded to
Rs.79,400
In the result, the appeal is allowed in part by enhancing
the compensation by a further amount of Rs.68,239/- with
interest @ 7% per annum from the date of petition till the date
of deposit and a cost of Rs.5,000/-. The respondents 3 and 6 are
MACA NO. 2813 OF 2012
directed to deposit the enhanced compensation with interest
and cost as stated above in equal shares before the Tribunal
within a period of 60 days from the date of receipt of a certified
copy of this judgment. Immediately on the compensation
amount being deposited, the same shall be disbursed to the
appellant in accordance with law.
Sd/-
C.S.DIAS, JUDGE
rkc/15.02.22
