Kerala High Court
Mani, S/O.Janardhanan vs Ashokan N on 3 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
MACA NO. 1530 OF 2012
AGAINST THE AWARD DATED 30.12.2010 IN OP(MV)NO.1451/2003 OF
THE I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM
APPELLANT/PETITIONER IN THE O.P.:
MANI,
S/O.JANARDHANAN
MANI BHAVANAM,
ADINAD, KOLLAM DISTRICT.
BY ADVS. SRI.B.MOHANLAL
SRI.T.PRASAD
RESPONDENTS/RESPONDENTS: IN THE O.P.
1 ASHOKAN N.
BHARATHI, H.NO.201,
WARD NO.IX, THATTAMALA P.O. KOLLAM.
PIN.691020.
2 BIJU
KUNNATHU VEEDU, PATTATHANAM EAST,
PATTATHANAM P.O., KOLLAM. PIN.691 016.
3 THE ORIENTAL INSURANCE COMPANY LIMITED,
KOLLAM. 691001.
4 THE NEW INDIA ASSURANCE COMPANY LIMITED
KOLLAM BRANCH,
KOLLAM- 691 001.
BY ADVS. SRI.LAL K.JOSEPH
SRI. VPK.PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.No.1530/2012
-:2:-
Dated this the 3rd day of January,2022
JUDGMENT
The appellant was the petitioner in O.P (MV)
No.1451/2003 on the file of the Additional Motor
Accidents Claims Tribunal-I, Kollam. 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 28.05.2002. It was his
case that, on the above date, while he was driving his
car along the Kollam-Alappuzha National Highway
road, a jeep bearing registration No.KL-2-J-399 (jeep),
driven by the second respondent in a rash and
negligent manner, hit the car of the appellant. The
appellant sustained serious injuries. He was treated as
an inpatient for a period of 85 days at the A.M.
Hospital, Karunagappally and the Upasana Hospital,
M.A.C.A.No.1530/2012
Kollam. He sustained a fracture to the right tibia and
the fourth rib. The appellant has suffered permanent
disability. The first respondent was the owner and the
third respondent was the insurer of the jeep. The
appellant was a tailor by profession and earning a
monthly income of Rs.3,500/-. Hence, he claimed a
compensation of Rs.2,50,000/- from the respondents.
3. The respondent Nos.1 and 2 did not contest
the proceedings and were set ex parte. The third
respondent entered appearance and filed a written
statement contending that the jeep was not insured by
them. Thereafter, the appellant impleaded the
additional fourth respondent, on the assertion that the
additional fourth respondent was the insurer of the
jeep.
4. The additional fourth respondent had filed a
written statement admitting that the jeep had a valid
insurance coverage. However, it was contended that
the accident occurred due to the negligence of the
M.A.C.A.No.1530/2012
appellant and the police had initially filed the
chargesheet against the appellant. Subsequently, on
the basis of a private complaint filed by the appellant,
the matter was investigated and then it was found that
it was the second respondent who was negligent in
causing the accident. Therefore, the additional fourth
respondent prayed for exoneration of its liability.
5. The appellant produced and marked Exts.A1
to A5 in evidence. The respondent did not let in any
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
additional fourth respondent an amount of Rs.90,750/-
with interest and cost.
7. Dissatisfied with the quantum of
compensation, the petitioner is in appeal.
8. Heard; Sri.B.Mohanlal, the learned counsel
appearing for the appellant/petitioner, Sri.
M.A.C.A.No.1530/2012
VPK.Panicker, the learned counsel appearing for the
third respondent/insurer and Sri. Lal K. Joseph, the
learned counsel appearing for the additional fourth
respondent-insurer.
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. Ext.A2 judgment passed by the Judicial First
Class Magistrate-I, Karunagappally, substantiates that
the second respondent had pleaded guilty to the
charges levelled against him in C.C.No.2041/2006 for
the offences punishable under Sections 279, 337 and
338 of the Indian Penal Code. The second respondent
was convicted and sentenced to pay a fine of
Rs.2,000/-. The respondents have not let in any
evidence to the contrary to the findings in Ext.A2
judgment. Admittedly, the additional fourth respondent
M.A.C.A.No.1530/2012
was the insurer of the jeep, which was owned by the
first respondent. The additional fourth respondent has
also not proved that the first respondent had violated
the insurance policy conditions. Therefore, the
additional fourth 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
tailor by profession and earning a monthly income of
Rs.3,500/-. However, the Tribunal, for the want of
materials, fixed the notional monthly income of the
appellant at Rs.2,500/-.
12. In Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236], the Hon'ble Supreme Court has
fixed the notional income of a coolie worker in the year
2004, at Rs.4,500/- per month.
13. Following the yardstick in the afore-cited
decision and keeping in mind the fact that the accident
M.A.C.A.No.1530/2012
occurred in the year 2002, I re-fix the notional monthly
income of the appellant at Rs.3,500/-.
Loss of earnings:
14. The Tribunal has found that the appellant
was indisposed for a period of five months. Taking into
account the serious injuries sustained by the appellant,
I confirm the said finding.
15. Nevertheless, in view of the re-fixation of the
notional monthly income of the appellant at Rs.3,500/-,
I award the appellant a further amount of Rs.5,000/-
towards 'loss of earnings'.
Loss due to disability:
16. The Tribunal found that the appellant has a
permanent disability of 8% and awarded the appellant
an amount of Rs.33,600/-.
17. In view of the re-fixation of the notional
income of the appellant at Rs.3,500/- per month, I
enhance the compensation under the head 'loss due to
disability' by a further amount of Rs.13,440/-.
M.A.C.A.No.1530/2012
Bystander expenses and extra nourishment:
18. The appellant was treated as an inpatient for
a period of 85 days. The Tribunal has awarded only an
amount of Rs.2,000/- towards 'bystander expenses' and
Rs.2,000/- towards 'extra nourishment', which
according to me, is too meager. Taking into account
the fact that the appellant was treated as an inpatient
for a period of 85 days in the year 2002, I award him
an amount of Rs.200/- per day for a period of 85 days
towards 'bystander expenses' which works out to
Rs.17,000/- i.e., an enhancement by Rs.15,000/-, and
Rs.100/- per day for a period of 85 days towards 'extra
nourishment', which amounts to Rs.8,500/- i.e., an
enhancement of Rs.6,500/-.
Pain and sufferings:
19. The Tribunal awarded the appellant an
amount of Rs.10,000/- towards 'pain and sufferings'
and Rs.3,000/- towards 'loss of amenities'. On a
M.A.C.A.No.1530/2012
consideration of the serious injuries sustained by the
appellant, that he was was indisposed for a period of
five months, that he was treated as an inpatient for a
period of 85 days, and that he has suffered a
permanent disability of 8%, I award him a further
amount of Rs.5,000/- under the head 'pain and
sufferings' and Rs.17,000/- under the head 'loss of
amenities.
20. With respect to the other heads of
compensation namely; 'transportation expenses',
'damage to clothing' and 'medical expenses', I find that
the Tribunal has awarded reasonable and just
compensation.
21. On a overall re-appreciation of the pleadings,
materials on record and the law referred to in the
afore-cited decision, I hold that the
appellant/petitioner is entitled for enhancement of
compensation as modified and re-calculated above and
M.A.C.A.No.1530/2012
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 12,500 17,500
2 Transportation 750 750
3 Damage to 500 500
Clothing
4 Bystander 2,000 17,000
expenses
5 Extra nourishment 2,000 8,500
6 Medical expenses 26,400 26,400
7 Pain and sufferings 10,000 15,000
8 Loss of amenities 3,000 20,000
9 Loss due to 33,600 47,040
disability
Total 90,750 1,52,690
In the result, the appeal is allowed by enhancing
the compensation by a further amount of Rs.61,940/-
with interest on the enhanced compensation at the
rate of 7.5% per annum from the date of petition till
the date of realisation, after deducting interest for a
M.A.C.A.No.1530/2012
period of 311 days i.e., the period of delay in
preferring this appeal and as directed by this Court on
02.08.2012 in C.M.Appln.No.1837/2012, and a cost of
Rs.5,000/-. The additional fourth 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
of this judgment. Immediately on the compensation
amount being deposited, the Tribunal shall disburse
the enhanced compensation to the appellant in
accordance with law.
Sd/-
C.S.DIAS,JUDGE
DST/03.01.22 //True copy/
P.A.To Judge
