A.Muthu @ Muthukutty vs Velukutty
2022 Latest Caselaw 6161 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
                  MACA NO. 3115 OF 2014
AGAINST THE AWARD DATED 31.3.2014 IN OP(MV) 51/2011 OF II
   ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD


APPELLANT/PETITIONER   :

         A.MUTHU @ MUTHUKUTTY,
         AGED 32 YEARS,
         S/O.ASSANAR, CHAKRAI,
         THIRUVAZHIYOD, NENMARA,
         PALAKKAD.
         BY ADV SRI.JACOB SEBASTIAN


RESPONDENTS/RESPONDENTS    :

    1    VELUKUTTY,
         AGED 33 YEARS,
         S/O.RAMAN THANDAN,
         CHAKRAI VEEDU, THIRUVAZHIYODE VILLAGE,
         AYILUR PANCHAYATH, CHITTUR TALUK,
         PIN - 678 508, PALAKKAD DISTRICT.
    2    THE ORIENTAL INSURANCE CO.LTD.,
         SHORNUR ROAD, TRICHUR, PIN - 680 001.
         BY ADVS.
         GEORGE CHERIAN (SR.)
         ALEXY AUGUSTINE
         GEORGE A.CHERIAN
         BY SMT.K.S.SANTHI, STANDING COUNSEL
 MACA No.3115 of 2014
                                     ..2..




                        A.BADHARUDEEN, J.

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                       MACA No.3115 of 2014
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            Dated this the 1st day of June, 2022

                          JUDGMENT

The appellant, who is the petitioner in O.P.

(MV)No.51 of 2011 on the file of the Motor Accidents

Claims Tribunal, Palakkad, assails award dated 31.03.2014

in the above case on the ground of inadequacy.

Respondents herein are the respondents before the

Tribunal.

2. Heard Adv.Sri.Jacob Sebastian appeared for

the appellant/petitioner and Adv.Smt.K.S.Santhi, the

learned Standing Counsel for the Oriental Insurance

Company, the second respondent.

3. Brief facts of the case are as follows:-

The appellant, who met with an accident on

15.03.2009 at about 15.30 hours, while travelling in his MACA No.3115 of 2014 ..3..

bike, had preferred claim under Section 166 of the Motor

Vehicles Act to the tune of Rs.5,00,000/- against the

respondents alleging negligence on the part of the first

respondent who alleged to have driven the autorickshaw

bearing registration No.KL-49-9519 in a rash and negligent

manner at the time of accident.

4. The insurance company resisted the claim

and disputed the accident, negligence as well as quantum

of compensation claimed while admitting valid policy to the

Autorickshaw.

5. The Tribunal adjudicated the matter, after

examining PW1, the doctor who issued the disability

certificate and marking Exts.A1 to A12, on the part of the

appellant. Accordingly, Rs.2,39,150/- was granted along

with 9% interest.

6. While canvassing enhancement, it is MACA No.3115 of 2014 ..4..

submitted by the learned counsel for the appellant that the

Tribunal fixed the monthly income of the appellant who

claimed to be a lorry driver at Rs.3,500/- as against claim

of Rs.5,000/-.

7. Therefore, he pressed for re-fixing the

monthly income as claimed and also re-calculation of the

loss of earnings and disability income apart from granting

reasonable compensation under the head pain and

sufferings and loss of amenities.

8. Per contra, the learned counsel for the

insurance company would submit that Rs.5,000/- claimed

as monthly income can be fixed at Rs.7,000/- as per the

ratio in [(2011) 13 SCC 236], Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Ltd. The counsel would submit further that

Rs.10,000/- under the head 'loss of earning capacity' also MACA No.3115 of 2014 ..5..

was granted by the Tribunal, after granting disability

income and therefore, the same shall be reduced.

9. The appellant raised a contention before the

Tribunal that he was getting Rs.5,000/- per month being a

lorry driver. Although the Tribunal fixed the same at

Rs.3,500/-, I am of the view that Rs.5,000/- as claimed

can be fixed as his monthly income. The age and multiplier

applied by the Tribunal are not in dispute. The Tribunal

granted loss of earnings for a period of three months at the

rate of Rs.3,500/-. In this matter, the appellant sustained

fracture lateral condyle femur, fracture 1/3 rd tibia and fibula

and fracture patella right and also he underwent inpatient

treatment for 16 days. Considering the multiple fractures

and treatment thereof, I am inclined to grant loss of

earnings for a period of four months at the rate of

Rs.5,000/-. The same is re-calculated as under; MACA No.3115 of 2014 ..6..

5,000x4 = 20,000/-

Out of which, Rs.10,500/- was granted by the

Tribunal and the balance Rs.9,500/- more is granted

under the head loss of amenities.

10. Though the learned counsel for the

appellant pressed for 24% disability assessed by the

doctor, it appears that the Tribunal, after evaluating the

evidence of PW1, fixed the same at 20%. I am not inclined

to re-visit the percentage of disability. Therefore, the

disability income requires re-calculation based on the

increased monthly income at the rate of Rs.5,000/-. The

same is re-calculated as under;

5,000x20/100x12x16=Rs.1,92,000/-

Out of which, Rs.1,34,400/- was granted by the

Tribunal and the balance Rs.57,600/- more is granted

under the head loss of disability income. MACA No.3115 of 2014 ..7..

11. Towards pain and suffering, the Tribunal

granted Rs.15,000/-. I am inclined to increase the same

by Rs.6,000/- more. Towards loss of amenities, the

Tribunal granted Rs.8,000/-. The same also is increased by

Rs.7,000/- more. As far as compensation granted under

the head "loss of earning capacity", the same is

impermissible in view of the fact that the disability income

already granted. Thus, Rs.10,000/- granted by the Tribunal

under the said head stands reduced.

In the result, this appeal is allowed. It is

ordered that the appellant is entitled to get enhanced

compensation to the tune of Rs.70,100/-(Rupees Seventy

Thousand One Hundred only) at the rate of 9% interest

granted by the Tribunal from the date of petition till the

date of deposit or realisation excluding the period of 49

days wherein, grant of interest was specifically MACA No.3115 of 2014 ..8..

disallowed by the order in C.M.Application No.1 of 2014

dated 05.01.2022. The 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 rkj