Shally vs Vimal Raj
2022 Latest Caselaw 6757 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                         MACA NO. 2505 OF 2012
AGAINST THE AWARD DATED 17.12.2011 IN OPMV 1079/2006 OF ADDITIONAL
  DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
APPELLANT/PETITIONER:

             SHALLY
             S/O JAMES,
             REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN,
             ANIE, W/O.JAMES, THANNIKKOTT HOUSE,
             PUTHENPALLY KARA, VARAPPUZHA VILLAGE.
             BY ADVS.
             SRI.PHILIP T.VARGHESE
             SMT.ACHU SUBHA ABRAHAM
             SRI.THOMAS T.VARGHESE


RESPONDENTS/RESPONDENTS:

    1        VIMAL RAJ
             S/O RAJENDRAN, T.C.12-1576,
             R.C. STREET, NEAR MLA HOSTAL,
             KUNNUKUZHI KARA, VANCHIYOOR VILLAGE,
             THIRUVANANTHAPURAM-695 035.
    2        SHINE ANTONY
             KOLARIKKAL HOUSE, MANNAMTHURUTH KARA,
             VARAPPUZHA VILLAGE-683 517.
    3        ICICI LOMBARD GENERAL INSURANCE CO. LTD.
             BRANCH OFFICE, KANNANKERY ESTATE, MARINE DRIVE,
             SHANMUGHAM ROAD, ERNAKULAM-682 035.
             BY ADVS.
             SRI.R.AJITH KUMAR 12884
             SRI.K.B.RAMANAND


     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 2505 OF 2012
                             2



                        JUDGMENT

Dated this the 14th day of June, 2022

The petitioner in O.P.(MV).No.1079/2006 before the

Motor Accidents Claims Tribunal, North Paravur assails

award dated 17.12.2011 in the above case, in this appeal

filed under Section 173 of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the MV Act'). The respondents

before the Tribunal are the respondents herein.

2. Heard the learned counsel for the appellant. No

representation for the respondents.

3. The summary of the case is as follows:-

The appellant lodged claim under Section 166 of the

MV Act before the Tribunal, on the allegation that he

sustained serious injuries pursuant to an accident occurred

on 02.07.2006 while he was travelling as a pillion rider on

a motor cycle bearing registration No.KL 7/AZ-1521 due to

the rashness and negligence on the part of the first

respondent. The appellant claimed Rs.10,00,000/- as MACA NO. 2505 OF 2012

compensation from respondents 1 to 3.

4. The first and second respondents were declared

ex parte by the Tribunal.

5. The third respondent-Insurance Company filed

written statement. While admitting policy, the negligence

and quantum of compensation under various heads were

opposed.

6. The Tribunal went on trial. The Tribunal

examined PW1 and marked Exts.A1 to A11 on the side of

the appellant. No evidence adduced from the side of the

respondents. Ext.X1 disability certificate also marked.

7. The Tribunal granted Rs.6,57,065/- along with

7.5% interest.

8. While pressing for enhancement on

compensation, the learned counsel for the appellant would

submit that the 'monthly income' taken by the Tribunal at

Rs.3,000/- is on lower side. According to him, the appellant

is entitled to get compensation based on Rs.5,500/- as the

monthly income, following the ratio in Ramachandrappa MACA NO. 2505 OF 2012

v. Manager, Royal Sundaram Alliance Insurance

Company Ltd. [(2011) 13 SCC 236].

9. In response to his submission, I have perused

the averments in the petition. In the petition, the specific

case put up by the appellant is that, he was a mason by

profession and was earning Rs.5,000/- per month. In view

of this categorical admission, I am inclined to fix the

'monthly income' as Rs.5,000/- and nothing more.

Accordingly, the compensation granted to the appellant

where he sustained injuries, viz, (1) right temporoparietal

bone defect needs cranioplasty, (2) easily getting angry,

forgetfulness, occasional laughter, (3) Patient on AED

(eption) which may have to be continued for long period,

he is getting one episode of seizure per month, (4)

Incontinence, (5) Left hemiparesis grade 4 power, walking

on level unsupported and climbing heights with difficulty,

requires recalculation.

10. In this case, the Medical Board certified the

disability of the appellant as 37%. However, the Tribunal, MACA NO. 2505 OF 2012

having appraised the difficulties of the appellant, following

the decision reported in Kalesh v. Sudheer (2010 (1)

KLT 537) fixed the same at 50%. Since no appeal filed at

the instance of the Insurance Company, I am inclined to

accept the same as such.

11. The Tribunal granted 'loss of earnings' for a

period of six months at the rate of Rs.3,000/-. Since the

monthly income is fixed at Rs.5,000/-, the same requires

recalculation as under:-

5,000 x 6 x = 30,000/-

Accordingly, Rs.12,000/- (30,000 - 18,000) more is

granted under the head 'loss of earnings'.

12. However, it appears that '18' is the multiplier

wrongly applied by the Tribunal, though admittedly and as

per Ext.A11 (Copy of SSLC book of the appellant), the

multiplier is '17', since the appellant is in the age group

between 26 to 30, following the table in Sarla Verma

(Smt) & Ors v. Delhi Transport Corporation & Anr.

[2010 (2) KLT 802 (SC)]. Thus, the multiplier is fixed as MACA NO. 2505 OF 2012

'17' instead of '18'.

Therefore, the disability income also recalculated as

under:

5,000 x 12 x 17/2 = 5,10,000/-

Out of which, Rs.3,24,000/- was granted by the

Tribunal. Thus, Rs.1,86,000/- (5,10,000 - 3,24,000) more

is granted under the head 'loss of disability income'.

13. In the award, the Tribunal granted Rs.35,000/-

each under the heads 'pain and sufferings' and 'loss of

amenities of life'. I am inclined to increase the same by

Rs.7,000/- each more.

14. Under other heads, sufficient compensation was

granted by the Tribunal and therefore, no more increase

is liable to be granted.

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

that the appellant is entitled to get Rs.8,69,065/- as

compensation. Out of which, Rs.6,57,065/- was granted by

the Tribunal and the balance amount of Rs.2,12,000/-

(Rupees two lakh and twelve thousand only) is granted as MACA NO. 2505 OF 2012

enhanced compensation with the same rate of interest

awarded by the Tribunal, excluding interest for a period of

165 days specifically excluded by this Court while allowing

the delay petition-C.M.Application No.1/2012 as per order

dated 12.11.2021, payable by the Insurance Company,

from the date of petition till the date of deposit or

realisation.

The Insurance Company is directed to deposit the

same in the name of the appellant within two months from

today. On deposit, the appellant is at liberty to release the

same.

Sd/-

A. BADHARUDEEN JUDGE nkr