Karuvammal vs Unnikrishnan
2022 Latest Caselaw 2812 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
     WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                          MACA NO. 1776 OF 2010
    AGAINST THE AWARD DATED 13.11.2009 IN OPMV 1620/2005 OF MOTOR
                 ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM
APPELLANTS/PETITIONERS:

     1     KARUVAMMAL, W/O KARISMADAN (LATE)
           23,MUNICIPAL COLONY, FATHIMAPURAM, CHANGANACHERRY, NOW
           RESIDING AT H.NO.1/3/52 ARUNDADIYAR STREET,, ELATHOOR
           P.O., SIVANALLOOR, CHENKOTTA,, THIRUNELVELI DISTRICT.

     2     AYYAPPAN @ MANIKANDAN S/O.KARIAMADAN (LATE)
           23, MUNICIPAL COLONY, FATHIMAPURAM,, CHANGANACHERRY, NOW
           RESIDING AT H.NO.1/3/52, ARUNDADIYAR STREET, ELATHOOR
           P.O., SIVANALLOOR, CHENKOTTA, THIRUNELVELI DISTRICT.

     3     SHANTHI W/O.SHEKAR, NETAJI STREET
           KASIMAJORPURAM, KUTTALAN P.O., CHENKOTTA.

     4     MARIAPPAN, S/O.KARIAMADAN (LATE)
           23,MUNICIPAL COLONY, FATHIMAPURAM, CHANGANACHERRY, NOW
           RESIDING AT H.NO.1/3/52 ARUNDADIYAR STREET, ELATHOOR
           P.O., SIVANALLOOR, CHENKOTTA, THIRUNELVELI DISTRICT.

     5     KANNAN, S/O.KARIAMADAN (LATE)
           23,MUNICIPAL COLONY, FATHIMAPURAM, CHANGANACHERRY, NOW
           RESIDING AT H.NO.1/3/52 ARUNDADIYAR STREET, ELATHOOR
           P.O., SIVANALLOOR, CHENKOTTA,, THIRUNELVELI DISTRICT.

     6     VIJAYALAKSHMI, D/O.KARIAMADAN (LATE)
           23, MUNICIPAL COLONY, FATHIMAPURAM, CHANGANACHERRY, NOW
           RESIDING AT H.NO.1/3/52 ARUNDADIYAR STREET, ELATHOOR
           P.O., SIVANALLOOR, CHENKOTTA, THIRUNELVELI DISTRICT.

           BY ADV SRI.K.A.HASHIM
 MACA NO. 1776 OF 2010           2

RESPONDENTS/RESPONDENTS:

    1     UNNIKRISHNAN, THURUTAL (H)
          NEAR GOVERNMENT HIGH SCHOOL, KUTTOOR KARA,, -DO-
          VILLAGE, THIRUVALLA.

    2     N.VENUGOPAL, GROSS D2
          ARATHI APARTMENTS, TRICHY ROAD, R.N.PURAM,,
          COIMBATORE.

    3     BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.
          DOOR 11, (OFFICE NO.6,4) PEOPLES PARK,, 3RD FLOOR,
          GOVERNMENT ARTS COLLEGE ROAD, COIMBATORE.

          BY ADV SRI.P.S.RAMU




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 1776 OF 2010             3




           Dated this the 16th day of March, 2022.

                        JUDGMENT

The appellants were the additional petitioners 2 to 7

in OP(MV) No.1620/2005 on the file of the Motor

Accidents Claims Tribunal, Kottayam. The respondents in

the appeal were the respondents before the Tribunal. The

parties are, for the sake of convenience, referred to as per

their status before the Tribunal.

2. The original petitioner named Karis Madan had

filed the 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

02.06.2005. It was his case that, on the above said date,

while he was standing on the road near the Municipality

office at Changanacherry, a car bearing registration No.

TN 37/AA/6460, driven by the first respondent in a

negligent manner, hit the original petitioner. He suffered

multiple injuries, including a Type II open bimalleolar

fracture with dislocation of right ankle, fracture of right

side ribs 3 to 8, head injury and multiple lacerated

injuries. He was treated as an inpatient at the Taluk

Hospital and at the Medical College Hospital, Kottayam.

The original petitioner was employed as sanitation worker

in the Municipal office, Changancherry and was drawing

a monthly salary of Rs.7500/-. The car was owned by the

second respondent and insured with the third respondent.

Hence, the original petitioner claimed an amount of

Rs.1,62,500/-, from the respondents, which claim was

limited to Rs.1,50,000/-

3. During the pendency of the claim petition, the

original petitioner died. His legal representatives were

impleaded as additional petitioners 2 to 7.

4. The first respondent had contested the

proceeding and filed a written statement denying

negligence on his part. He also contended that the

accident occurred due to the negligence of the original

petitioner, who crossed the road without any care or

caution. The first respondent had also disputed the age,

income and occupation of the original petitioner.

5. The petitioners had produced and marked

Exhibits A1 to A15 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 additional petitioners 2 to 7 to recover

from the third respondent an amount of Rs.48,356/- with

interest and cost of Rs.1000/-.

7. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the additional petitioners 2 to 7

are in appeal.

8. Heard; Sri. K.A. Hashim, the learned counsel

appearing for the appellant/petitioner and Sri.P.S.Ramu

the learned counsel appearing for the third

respondent/insurer.

9. The point that arises for consideration in this

appeal is whether the quantum of compensation awarded

by the Tribunal is reasonable and just.

10. Indisputably, the disability of the original

petitioner was not assessed by any Doctor or Medical

Board. Even though it was contended that original

petitioner had filed an application to refer him to a

Medical Board to assess his permanent disability, no such

application is seen in the lower court records. Therefore,

as matters stands now, there is no material to prove that

the original petitioner had suffered any

permanent/functional disability.

11. On a re-appreciation of the pleadings and

materials on record, it is found that the original petitioner

had sustained a Type II open bimalleolar fracture with

dislocation of his right ankle, fracture of the ribs 3 to 8 on

the right side and he was treated with wound

debridement. He was treated as an inpatient from the

date of accident till 29.07.2005. Even though he had

claimed an amount of Rs.30,000/- under the head 'pain

and sufferings' and Rs.25,000/- under the head 'loss of

amenities', the Tribunal has only awarded an amount of

Rs.15,000/- under the head 'pain and sufferings'. I find,

this on the lower side.

12. Taking into account the serious nature of injuries

sustained by the original petitioner and the period of his

hospitalisation, I am of the firm view that the appellants

are entitled to a further amount of Rs.10,000/- under the

head 'pain and sufferings and Rs.25,000/- under the head

'loss of amenities', totalling to an amount of Rs.35,000/-.

13. With respect to other heads of compensation, I

find that the Tribunal has awarded reasonable and just

compensation.

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

enhancing the compensation by a further amount of

Rs.35,000/- (i.e. Rs.10,000/- under the head 'pain and

sufferings' and Rs.25,000/- under the head 'loss of

amenities') with interest at the rate of 6% per annum,

from the date of petition till the date of deposit, and a

cost of Rs.5000/-. The third respondent is ordered to

deposit the enhanced compensation with interest and

cost before the Tribunal within sixty days from the date

of receipt of a certified copy of the judgment.

Immediately on the compensation amount being

deposited, the same shall be disbursed to the first

appellant/additional second petitioner - the wife of the

original petitioner, in accordance with law.

Sd/-

C.S.DIAS, JUDGE

rmm/16/03/2022