Siby vs Syed Alavi And Others
2022 Latest Caselaw 8468 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
         WEDNESDAY, THE 6TH DAY OF JULY 2022/15TH ASHADHA, 1944
                         MACA NO. 2075 OF 2009
    AGAINST THE AWARD IN OPMV 50/2001 OF MOTOR ACCIDENT CLAIMS
                         TRIBUNAL, THALASSERY
APPELLANT/PETITIONER:
          SIBY
          S/O.SEBASTIAN,
          AGED 36 YEARS, KOYIKKALOTTU HOUSE,
          P.O.KILIYANTHARA, IRITTY.

            BY ADV SRI.C.P.PEETHAMBARAN


RESPONDENTS/RESPONDENTS IN OP MV:
     1    SYED ALAVI
          S/O.KHADER, URAGATHODY HOUSE,
          P.O.MOKERI,THALASSERY.

     2      FARAH TABASSAUM W/O.SYED AJAZ
            SHAMA TRANSPORT, NO.76/IB, A.V.ROAD,
            BANGALORE-2, KALASIPALAYAM.

     3      THE ORIENTAL INSURANCE CO.LTD.
            NO.21, IST FLOOR, MISSION ROAD,
            CIRCLE SUBBAIHA, BANGALORE-27.

     4      H.B.RAMNATHA SHETTY, DOOR NO.275
            15TH CROSS, WILSON GARDEN, 8TH CROSS,
            LAKKASSANDRA BANG.

     5      RAMAKRISHNA, JOUGEEPURA
            CHENNANRAGAPPATTANA TALUK, HASSAN DISTRICT.

     6      UNITED INDIA INSURANCE COMPANY LTD.
            KANNUR.

            BY ADVS.
            SRI.VPK.PANICKER
            SRI.V.SUMESH


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2075 OF 2009
                               2



                          JUDGMENT

Dated this the 6th day of July, 2022

Award dated 14.02.2007 in O.P.(MV).No.50/2001 on

the files of the Motor Accidents Claims Tribunal, Thalassery

is under challenge in this appeal filed by the original

petitioner under Section 173 of the Motor Vehicles Act.

The respondents herein are the respondents before the

Tribunal.

2. Heard the learned counsel for the appellant as

well as the learned Standing Counsel appearing for the

Insurance Company.

3. The short facts are as follows:

The appellant lodged claim before the Tribunal on the

allegation that he sustained serious injuries pursuant to an

accident occurred on 26.08.1999 while he was travelling in

a bus, due to the rashness and negligence on the part of

the first respondent, driver of the bus. The appellant MACA NO. 2075 OF 2009

claimed Rs.2,00,000/- from respondents 1 to 3.

4. Respondent Nos.1, 2 and supplemental

respondent Nos.4 and 5 were declared ex parte by the

Tribunal.

5. The third respondent, insurer filed written

statement and disputed the accident, while admitting

policy to the bus. Quantum under various heads also

seriously disputed.

6. The supplemental sixth respondent-Insurance

Company also filed written statement denying the

insurance policy of the vehicle.

7. The Tribunal adjudicated the claim, after

recording documentary evidence marked as Exts.A1 to A7,

where respondents did not adduce any evidence.

8. Thereafter, the Tribunal granted Rs.28,350/- as

against claim of Rs.2,00,000/- payable by the third

respondent-insurer.

MACA NO. 2075 OF 2009

9. The learned counsel for the appellant argued

that though at the time of accident during 1999, the

appellant was working as a Chartered Accountant in Kotak

Mahindra Primus Limited, Bangalore and was earning

Rs.22,000/- per month, the Tribunal fixed the same at

Rs.2,500/-. On perusal of the petition, such contention

could be gathered. When the learned counsel for the

appellant was asked to justify the evidence in support of

this contention, she fairly conceded that no evidence

adduced. It appears that the Tribunal fixed the monthly

income at Rs.2,500/- in this case involving accident of the

year 1999 since the appellant failed to prove the income

as claimed.

8. Even following the ratio in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Ltd. [(2011) 13 SCC 236], nothing in excess

of Rs.2,500/- is liable to be fixed and therefore, the

argument advanced by the learned counsel for the MACA NO. 2075 OF 2009

appellant seeking enhancement in the monthly income

cannot be found in favour of the appellant as rightly

argued by the learned counsel for the Insurance Company.

9. In this case, the appellant sustained the

following injuries:

1. Sutured wound on the scalp 3 cms

2. Abrasion over the left knee 2 x 3 cms

3. Abrasion over the right leg 2 numbers 2x2 cms and 2x2 cms

4. Fracture of shaft of left fibula

5. Fracture of base of proximal phalanx of 2 nd digit.

10. As evident from Ext.A4, he was hospitalised for a

period of four days and discharged thereafter. Considering

the fracture of left fibula and fracture of base of proximal

phalanx of 2nd digit, loss of earnings granted by the

Tribunal is liable to be increased for a period of four

months. Therefore, in addition to Rs.5,000/- granted by

the Tribunal, Rs.5,000/- more is granted under the head

'loss of earnings'. No amount granted by the Tribunal

under the head 'bystander's expenses'. Therefore, for four MACA NO. 2075 OF 2009

days, I am inclined to grant Rs.600/- under the head

'bystander's expenses' at the rate of Rs.150/- per day.

11. The Tribunal granted Rs.15,000/- under the head

'pain and sufferings'. Considering the injuries and

treatment, I am inclined to increase the same by

Rs.7,000/- more. No amount granted under the head

'loss of amenities' also. Therefore, Rs.10,000/- granted

under the head 'loss of amenities'.

In the result, this appeal stands allowed. It is held

that the appellant is entitled to get Rs.50,950/- as

compensation, out of which Rs.28,350/- was granted by

the Tribunal and the balance of Rs.22,600/- (Rupees

twenty two thousand and six hundred only) is granted as

enhanced compensation with the same rate of interest

awarded by the Tribunal, payable by respondents 1 to 3

and the 3rd respondent Insurance Company is liable to pay

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

or realisation, excluding interest for a period of 714 days MACA NO. 2075 OF 2009

specifically excluded by this Court while allowing the delay

petition-C.M.Appl.No.2412 of 2009 as per order dated

03.11.2016, while condoning the delay in filing this appeal.

Hence, the 3rd respondent Insurance Company is

directed to deposit the same in the name of the appellant

within two months from today. On deposit, the appellant

can release the same.

Sd/-

A. BADHARUDEEN JUDGE

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