Kerala High Court
Pradeep Kumar vs Thomas, S/O.Lona And Another on 11 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
MACA NO. 1197 OF 2010
AGAINST THE AWARD DATED 29.08.2009 IN OP(MV)NO.1687/2002 OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR
APPELLANT/PETITIONER:
PRADEEP KUMAR
AVINISSERY HOUSE, PARAKKOVIL,
CHERPU PO,
THRISSUR DISTRICT.
BY ADV SRI.T.C.SURESH MENON
RESPONDENTS/RESPONDENTS
1 THOMAS,
S/O.LONA,
KODALI DESOM,
MATTATHOOR VILLAGE,
THRISSUR DISTRICT.
2 THE NATIONAL INSURANCE CO.LTD.,
KOLLANNUR, DEVASSY SMARAKA BUILDINGS
ROUND EAST THRISSUR.
BY ADVS. SMT.K.S.SANTHI
SRI.GEORGE CHERIAN THIRUVALLA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.1197/2010
-:2:-
Dated this the 11th day of January,2022
JUDGMENT
The appellant was the petitioner in O.P
(MV)No.1687/2002 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 163A of the Motor Vehicles Act, 1988 (in
short, 'Act'), claiming compensation on account of the
injuries that he sustained in an accident on
31.03.2001. It was his case that, on the above date,
while he was riding his motorcycle bearing
registration No.KL-8/P-5149, when he reached
Kurumali Center, another motorcycle bearing
registration No.KL-8/N-5771(offending motorcycle),
ridden and owned by the first respondent in a rash
M.A.C.A.No.1197/2010
and negligent manner, hit the motorcycle of the
appellant. The appellant sustained serious injuries,
including fracture of his right fibula and suffered a
hematoma of his right parietal area. He was treated as
an inpatient at the West Fort Hospital, Thrissur, from
31.03.2001 to 10.04.2001. The appellant was a
goldsmith by profession and earning a monthly income
of Rs.3,250/-. The second respondent was the insurer
of the offending motorcycle. Hence, the appellant
claimed a compensation of Rs.2,18,000/- from the
respondents, which claim was limited to Rs.1,50,000/-.
3. The first respondent did not contest the
proceedings and was set ex parte.
4. The second respondent had filed a written
statement, admitting that the motorcycle had a valid
insurance coverage. However, it was contended that
the accident occurred due to the negligence of the
appellant.
M.A.C.A.No.1197/2010
5. The appellant examined the doctor who
issued disability certificate as PW1 and marked
Exts.A1 to A10 series in evidence. The second
respondent produced and marked Exts.B1 to B3 in
evidence.
6. The Tribunal, after analysing the pleadings
and materials on record, allowed the claim petition in
part, by permitting the appellant to recover from the
second respondent an amount of Rs.51,500/- with
interest at the rate of 8% per annum from the date of
petition till the date of realisation.
7. Dissatisfied with the quantum of
compensation awarded by the Tribunal, the petitioner
is in appeal.
8. Heard; Sri. T.C. Suresh Menon, the learned
counsel appearing for the appellant/petitioner and
Smt. K.S. Santhi, the learned counsel appearing for the
second respondent-insurer.
M.A.C.A.No.1197/2010
9. The sole question that emerges for
consideration in the appeal is whether the quantum of
compensation awarded by the Tribunal is reasonable
and just.
Negligence and liability:
10. Admittedly, the claim petition was filed under
Section 163A of the Act. In view of the law laid down
in United India Insurance Company Ltd. v.
Sunilkumar [2017 (4) KLT 1093 (SC)], the question of
negligence cannot be looked into. Therefore, going by
the assertions in the claim petition that the accident
occurred due to the negligence of the first respondent
and that the second respondent was the insurer of the
offending motorcycle, the second respondent is to
indemnify the liability of the first respondent arising
out of the accident.
Income:
11. The appellant had claimed that he was a
M.A.C.A.No.1197/2010
goldsmith by profession and earning a monthly income
of Rs.3,250/-.The Tribunal, for want of materials, fixed
the notional income of the appellant at Rs.2,500/- per
month.
12. The Hon'ble Supreme Court in Chameli
Devi and Ors. v. Jivrail Mian & Ors. [2019 KHC
5352], has fixed the notional income of a carpenter in
the year 2001, at Rs.5,000/- per month.
13. Following the yardstick in the afore-cited
decision and considering the fact that the appellant
was a skilled labourer and that the accident occurred
in the year 2001, I have no hesitation to fix the
monthly notional income of the appellant at Rs.3,250/-,
as claimed in the claim petition.
Disability:
14. The appellant had examined PW1 who issued
Ext.A9 disability certificate stating that the appellant
has a permanent disability of 9% due to the injuries
M.A.C.A.No.1197/2010
sustained in the accident. The said certificate was
accepted and marked in evidence through PW1.
However, the Tribunal scaled down the percentage of
disability to 5%. The course adopted by the Tribunal,
according to me, is erroneous, in view of the law laid
down in Rajkumar v. Ajayakumar [2011(1) KLT
620(SC)]. If the Tribunal was dissatisfied with Ext.A9
disability certificate, the Tribunal ought to have
referred the appellant to a duly constituted Medical
Board. After the said document was accepted in
evidence without any objection or protest from the
respondents, the Tribunal ought to have fixed the
functional disability of the appellant as certified in
Ext.A9 at 9%. Therefore, I accept Ext.A9 and fixed the
functional disability of the appellant at 9%.
Loss of earnings:
15. The appellant was aged 28 years at the time
of accident. Therefore, the relevant multiplier is '17' as
M.A.C.A.No.1197/2010
per Second Schedule of the Act. Since the appellant
was indisposed for a period of six months and his
notional monthly income being fixed at Rs.3,250/-, I
hold that he is entitled to Rs.19,500/- towards 'loss of
earnings', instead of Rs.10,000/- awarded by the
Tribunal.
Loss due to disability:
16. As per Clause 5(a) of the Second Schedule of
the Act, the appellant is entitled for compensation for
permanent total disablement by multiplying the annual
loss of income with the multiplier applicable to the age
of the appellant. In the light of the re-fixation of the
notional an annual income of the appellant at
Rs.39,000/-, the multiplier at '17' and the functional
disability of the appellant at 9%, I award the appellant
an amount of Rs.59,670/-, instead of Rs.25,500/-
awarded by the Tribunal.
17. Similarly, I award the appellant an amount of
M.A.C.A.No.1197/2010
Rs.5,000/- towards 'pain and sufferings' as provided
under Clause 4(i)(a) of the Second Schedule of the Act
and the actual medical expenses of Rs.10,993/-, thus
totaling to an amount of Rs.95,163/-.
18. It is fairly brought to the notice of this Court
that the appeal filed by the second respondent-insurer,
challenging the very same award, was dismissed by
this Court by its judgment dated 08.01.2010 in
M.A.C.A.No.48/2010. Therefore, dehors the law laid
down in Sunilkumar (supra) the finding of negligence
against the first respondent has become final.
19. On a comprehensive re-appreciation of the
pleadings and materials on record and the law
referred to in the afore-cited decisions and the Second
Schedule of the Act, I am of the definite opinion that
the appellant/petitioner is entitled to enhancement of
compensation as modified and recalculated above and
given in the table below for easy reference.
M.A.C.A.No.1197/2010
Sl.No Head of claim Amount Amounts
awarded by modified and
the Tribunal recalculated
(in rupees) by this Court
1 Loss of earnings 10,000 19,500
2 Pain and sufferings 5,000 5,000
3 Medical expense 10,993 10,993
4 Loss due to 25,500 59,670
disability (2500 x 12 x (3250 x 12 x
5% x 17) 9% x 17)
Total 51,493 95,163
In the result, the appeal is allowed in part, by
enhancing the compensation by a further amount of
Rs.43,670/- with interest at the rate of 8% per annum
from the date of petition till the date of deposit,after
deducting interest for a period of 53 days i.e., the
period of delay in filing the appeal and as ordered by
this Court on 20.10.2021 in C.M.Appln. No.1/2010, and
a cost of Rs.10,000/-. The second respondent/insurer
is ordered to deposit the enhanced compensation with
interest and cost before the Tribunal within a period of
sixty days from the date of receipt of a certified copy
M.A.C.A.No.1197/2010
of this judgment. Immediately on the compensation
amount being deposited, the Tribunal shall disburse
the deposited amount to the appellant in accordance
with law.
Sd/-
C.S.DIAS,JUDGE
DST //True copy/
P.A.To Judge
