Kerala High Court

Balakrishnan vs Jose on 13 January, 2022

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
 THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                   MACA NO. 2543 OF 2012
 AGAINST THE AWARD DATED 26.05.2012 IN OPMV 3204/2005 OF S
          MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR
APPELLANT/PETITIONER:

         BALAKRISHNAN
         S/O.KOCHUNNI RESIDING AT THAZHATHUVALAPPIL HOUSE
         OLLUKKARA MANNUTHY P.O THRISSUR DISTRICT
         BY ADVS.
         SRI.T.C.SURESH MENON
         SRI.P.S.APPU
         SRI.A.R.NIMOD


RESPONDENTS/RESPONDENTS:

    1    JOSE
         S/O.KOCHUVAREED RESIDING AT 2/409 MENACHERY HOUSE
         MADAKKATHARA THRISSUR PIN 680651
    2    LINSON
         S/O.PAULSON RESIDING AT ELUVATHINGAL HOUSE,
         MULAYAM ROAD MULLAKARA P.O MANNUTHY,
         THRISSUR PIN 680651
    3    THE UNITED INDIA INSURANCE COMPANY LIMITED
         PARK HOUSE ROUND NORTH THRISSUR PIN 680001
         BY ADV SMT.K.C.BEENA


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No2543-2012

                                        -:2:-




                      Dated this the 13th day of January, 2022

                              JUDGMENT

The appellant was the petitioner in O.P (MV)

No.3204/2005 on the file of the Motor Accidents

Claims Tribunal,Trissur. 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 that he

sustained in an accident on 29.01.2005. It was his case

that, while he was riding his motorcycle bearing

registration No. KL-8-V-1993 along with his friend

Nandakumar as the pillion, through the Mulayam-

Mullakkara public road, a jeep bearing registration No.

KEQ 171, driven by the second respondent in a rash

and negligent manner, hit the motorcycle of the

appellant. The appellant sustained serious injuries and

was treated as an inpatient at the Jubilee Mission M.A.C.A.No2543-2012

Hospital for a period of 21 days. The appellant

sustained a open grade II fracture of his right tibia.

The appellant was a clerk in a chitty company and

drawing a salary of Rs.5000/-. The jeep was owned

by the first respondent and insured with the third

respondent. Hence,the appellant claimed a

compensation of Rs.2,43,000/-from the respondents,

which claim was limited to Rs.2,25,000/-.

3. The pillion rider of the motorcycle had also filed

O.P.(M.V) No.3394/ 2005 before the same Tribunal.

4. The respondents 1 and 2 did not contest the

proceeding and were set ex- parte.

5. The third respondent had filed written

statements in both the claim petitions, inter alia,

contending that the accident occurred due to the

negligence of the appellant. Even though the third

respondent had admitted that the jeep had a valid

insurance policy, it was asserted that there was

violation of insurance policy conditions because the M.A.C.A.No2543-2012

second respondent did not hold a valid driving license.

6. The appellant had examined himself as PW1

and marked Exhibits A1 to A17 in evidence. The third

respondent had produced Exhibit B1 insurance policy

in evidence.

7. The Tribunal, after analysing the pleadings and

materials on record, by its common award, allowed

the captioned claim petition in part, by permitting the

appellant to recover from the third respondent an

amount of Rs.1,48,300/- with interest and cost.

8. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner is in appeal.

9. Heard; Sri.T.C. Suresh Menon, the learned

counsel appearing for the appellant/petitioner and

Sri.K.C. Beena, the learned counsel appearing for the

third respondent/insurer.

10. The sole question that emanates for

consideration in this appeal is whether the quantum of

compensation awarded by the Tribunal is reasonable M.A.C.A.No2543-2012

and just?

Negligence and liability

11. Exhibit A1 FIR, A2 scene mahazar and A5 FI

statement proves the fact that the accident occurred

due to the negligence of the second respondent. Even

though the appellant had categorically claimed in the

claim petition that the accident occurred due to the

negligence of the second respondent, the respondents

have not let in any evidence to controvert the

assertions in the claim petition or discredit Exhibits

A1, A2 and A5. The third respondent has also not

proved that the first respondent had violated the

insurance policy conditions. Therefore, the third

respondent is to indemnify the liability of the first

respondent arising out of the accident.

Income

12. The appellant had claimed that he was a

clerk in a chitty company and was drawing a monthly M.A.C.A.No2543-2012

income of Rs.5000/-. For the want of material, the

Tribunal has fixed the notional monthly income of the

appellant at Rs.4000/-.

13. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited

[(2011) 13 SCC 236], the Honourable Supreme Court

has fixed the notional income of a coolie worker in the

year 2004 at Rs. 4500/- per month.

14. Following the yardstick in the afore-cited

decision and considering the fact that the accident

occurred in the year 2005, I re-fix the notional monthly

income of the appellant at Rs.5000/-.

Loss of earnings

15. The appellant had claimed that he was

indisposed for a period of seven months. However, the

Tribunal has held that the appellant was indisposed for

a period of four months. On a consideration of the fact

that the appellant had sustained a open grade II

fracture of his right tibia, and that he was treated as M.A.C.A.No2543-2012

an inpatient for a period of 21 days, I hold that he was

indisposed for a period of six months.

16. In view of the re-fixation of the notional

monthly income of the appellant at Rs.5000/- and that

he was indisposed for a period of six months, I award

the appellant an amount of Rs.30,000/- towards 'loss of

earnings', instead of Rs.16,000/- awarded by the

Tribunal.

By-stander expenses and extra nourishment

17. The Tribunal has awarded an amount of

Rs.3150/- towards 'by-stander expenses' and Rs.2000/-

towards 'extra nourishment'.

18. On a consideration of the fact that the

appellant was treated as an inpatient for a period of

21 days and that the accident occurred in the year

2005, I award the appellant an amount of Rs.300/- per

day for a period of 21 years towards 'by-stander

expenses', which works out to Rs.6300/-, and Rs.150/-

per day for a period of 21 days towards 'extra M.A.C.A.No2543-2012

nourishment', which comes to Rs.3150/-.

Pain and suffering and loss of amenities

19. The Tribunal has awarded an amount of

Rs.14,000/- under the head 'pain and sufferings' and

Rs.12,000/- under the head 'loss of amenities'.

20. On a consideration of the fact that the

appellant had sustained a type II open fracture of his

right tibia, that he was treated as an inpatient for a

period of 21 days and that he was indisposed for a

period of six months, I award him further amounts of

Rs.6000/- under the head 'pain and sufferings' and

Rs.8000/- under the head 'loss of amenities'.

21. With respect to the amounts of compensation

awarded under the heads transportation expenses,

compensation, medical expenses, and discomfort

expenses, I find that the same to be reasonable and

just.

22. On an overall re-appreciation of the pleadings

and materials on record and the law referred to in the M.A.C.A.No2543-2012

afore-cited decisions, I hold that the

appellant/petitioner is entitled for enhancement of

compensation as modified and re-calculated above and

given in the table below for easy reference.

Sl.No            Head of claim        Amount       Amounts
                                   awarded by the modified
                                    Tribunal (in     and
                                      rupees)    recalculated
                                                    by this
                                                    Court
    1       Loss of earnings                    16000           30000
    2       Transport                            4000            4000
            expenses
    4       By-stander                           3150            6300
            expense
    5       Extra nourishment                    2000            3150
    6       Medical expenses                    82086           82086
    7       Pain and sufferings                 14000           20000
    8       Loss of amenities                   12000           20000
    9       Loss of discomfort                  15000           15000
                           Total              148236           180536
                                           rounded to
                                              148300

        In the result, the appeal is allowed in part,             by

enhancing the compensation by a further amount of

Rs.32,236/- with interest at the rate of 7% per annum M.A.C.A.No2543-2012

from the date of petition till the date of deposit, after

deducting interest for a period of 39 days i.e the

period of delay in filing the appeal and as ordered by

this Court on 08.10.2021 in C.M.Application No.

1/2012, and a cost of Rs.5000/-. The third respondent

is ordered to deposit the enhanced compensation with

interest and cost before the Tribunal within sixty days

from the date of receipt of a certified copy of the

judgment. Immediately on the compensation amount

being deposited, the Tribunal shall disburse the