Sivasankaran vs Mansoor
2022 Latest Caselaw 907 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
         TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
                           MACA NO.2798 OF 2012

AGAINST THE AWARD DATED 28.07.2012 IN O.P.(MV) NO.1251/2008 ON THE
FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI.
APPELLANT/PETITIONER:

             SIVASANKARAN,
             S/O.VELAYUDHAN,
             PANGIL HOUSE,
             EDAKKARA AMSOM, WEST PERUMKULAM,
             NILAMBUR TALUK, MALAPPURAM DISTRICT.
             BY ADVS.
             SRI.P.VENUGOPAL (1086/92)
             SMT.T.J.MARIA GORETTI


RESPONDENTS/RESPONDENTS:

     1       MANSOOR,
             S/O. MOHAMMEDKUTTY,
             THUPPILIKKADAN HOUSE,
             EDAKKARA AMSOM, KARAPPURAM,
             KALKKULAM, MOOTHEDAM P.O.,
             NILAMBUR TALUK,MALAPPURAM DISTRICT,
             PIN-679 331.
     2       SHAIJU,
             S/O.PRABHAKARAN,
             VALAYIL HOUSE,
             KARAPPURAM, MOOTHEDAM P.O.,
             NILAMBUR TALUK, MALAPPURAM DISTRICT,
             PIN-679 331.
     3       MS.UNITER INDIA INSURANCE CO. LTD.,
             BRANCH OFFICE, AM BUILDING,POST BOX NO.5,
             HOSPITAL ROAD, NILAMBUR P.O.,
             MALAPPURAM DISTICT, PIN-679 329.
             BY ADV SMT.T.C.SOWMIAVATHY

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO.2798 OF 2012
                                 -2-

                          C.S. DIAS, J.
        -----------------------------------------------------
                  MACA No.2798 of 2012
        -----------------------------------------------------
        Dated this the 25th day of January, 2022

                          JUDGMENT

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

No.1251 of 2008 on the file of the Motor Accidents

Claims Tribunal, Manjeri. The respondents in the

appeal were the respondents before the Tribunal.

2. The appellant had filed a 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 10.09.2006. It was his case that,

while he was waiting at the Bus stand on the Nilambur-

Vazhikkadavu road, a motorcycle bearing registration

No.KL-10/X-1460, ridden by the first respondent in a

rash and negligent manner, hit the appellant. The

appellant sustained serious injuries, including four

fractures and was treated as an inpatient for a period of MACA NO.2798 OF 2012

4 days. The motorcycle was owned by the second

respondent and insured with the third respondent. The

appellant was a watchman and was earning a monthly

income of Rs.3,000/-. Hence, the appellant claimed a

compensation of Rs.1,00,000/- from the respondents.

3. The respondents 1 and 2 did not contest the

proceeding and were set ex-parte.

4. The third 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.

5. The appellant had produced and marked

Exts.A1 to A3 series in evidence. The respondents 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 MACA NO.2798 OF 2012

third respondent an amount of Rs.30,575/- with interest

and cost.

7. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner is in appeal.

8. Heard; Sri. P. Venugopal, the learned counsel

appearing for the appellant/petitioner and Sri. T. C.

Sowmiavathy, the learned counsel appearing for the

third respondent insurer.

9. The point that emanates for consideration in

this appeal is whether the quantum of compensation

awarded by the Tribunal is reasonable and just.

Negligence and liability

10. The specific case of the appellant was that the

accident occurred due to the negligence of the first

respondent. The appellant produced Ext.A1 FIR to

substantiate his claim. The respondents did not let in

any evidence. In view of the uncontroverted averments

on record read with Ext.A1, I am of the view that the MACA NO.2798 OF 2012

accident occurred due to the negligence of the first

respondent. Admittedly, the second respondent was the

owner and the third respondent was the insurer of the

motorcycle. The third respondent has also not proved

that the second respondent had violated the insurance

policy conditions. Therefore, the third respondent is to

indemnify the liability of the second respondent arising

out of the accident.

Income

11. The appellant had claimed that he was a

watchman by profession and earning a monthly income

at Rs.3,000/-. The Tribunal 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 Honourable Supreme Court

has fixed the notional income of a coolie worker in the

year 2004, at Rs.4,500/- per month.

MACA NO.2798 OF 2012

13. Following the yardstick in the aforecited

decision and considering the fact that the accident

occurred in the year 2006, I re-fix the notional monthly

income of the appellant at Rs.3,000/- as claimed in the

claim petition.

Loss of earnings

14. It is proved that the appellant had sustained a

Type III compound fracture of both bones of his right

leg, fracture of the spine of the right scapula, fracture

of the acromian right and fracture of the superior angle

of the right scapula. Even though he was treated as an

inpatient for a period of 4 days, taking into account the

fact that he was a watchman by profession, I hold that

he was indisposed for a period of six months.

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

monthly income of the appellant at Rs.3,000/-, I award

him a further amount of Rs.18,000/- under the head

'loss of income' i.e., an enhancement by Rs.10,500/-. MACA NO.2798 OF 2012

Pain and suffering and loss of amenities

16. The Tribunal has awarded only an amount of

Rs.12,500/- towards 'pain and suffering' and has not

awarded any amount towards 'loss of amenities'. Taking

into account the serious injuries sustained by the

appellant, that he was indisposed for a period of six

months and he was treated as an inpatient for a period

of 4 days, I award the appellant a further amount of

Rs.7,500/- under the head 'pain and suffering' and

Rs.7,500/- under the head 'loss of amenities'.

17. With respect to the other heads of

compensation awarded by the Tribunal, I find the same

to be reasonable and just.

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

enhancing the compensation by a further amount of

Rs.25,500/- (i.e, a further amount of Rs.10,500/-

towards 'loss of earning', a further amount of Rs.7,500/-

towards 'pain and suffering' and an amount of MACA NO.2798 OF 2012

Rs.7,500/- towards 'loss of amenities') with interest and

at the rate of 7% per annum from the date of petition

till the date of date of deposit, after deducting the

interest for a period of 46 days, i.e, the period of delay

in filing the appeal and as ordered by this Court on

20.10.2021 in C.M. Application No.1 of 2012, and a cost

of Rs.5,000/-. The third respondent is directed 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 same shall be disbursed to the

appellant in accordance with law.

Sd/-

C.S. DIAS JUDGE bpr