Edison vs Dasan
2022 Latest Caselaw 2825 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. 1196 OF 2009

 AGAINST THE AWARD DATED 19.02.2008 IN OP(MV)NO.459/2002 OF
        THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR.
APPELLANT/PETITIONER:

          EDISON,
          S/O. THOMAS,
          MULLACKAL HOUSE,
          MATTOM P.O.,
          THRISSUR.

          BY ADV SRI.SHEJI P.ABRAHAM


RESPONDENTS/RESPONDENTS:

    1     DASAN,
          S/O. MADHAVAN,
          THOTTUNGAL HOUSE, M.G.ROAD,
          NEAR OVER BRIDGE, THRISSUR.

    2     M.R.RATHNAVALLY,
          W/O.MOHAN,
          NADODY HOUSE, ANCHERRY, THRISSUR.

    3     UNITED INDIA INSURANCE CO.LTD.
          DIVISIONAL OFFICE, PARK HOUSE,
          ROUND NORTH, THRISSUR.

          BY ADV SRI.RAJAN P.KALIYATH

      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 M.A.C.A.No.1196/2009

                                        -:2:-




                       Dated this the 16th day of March,2022

                              JUDGMENT

The appellant was the petitioner in OP(MV)

No.459/2002 on the file of the Motor Accidents Claims

Tribunal, Thrissur. The respondents in the appeal were

the respondents before the Tribunal.

2. The appellant 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 25.11.2001. It was

his case that, on the above said date, while he was

travelling pillion on a motorcycle bearing registration

No.KL-8/E 4567, an autorickshaw bearing registration

NoKL-8-H196, driven by the first respondent in a

negligent manner, hit the motorcycle. The appellant

had suffered multiple injuries, including a fracture on

his right leg and a head injury. He was treated as an M.A.C.A.No.1196/2009

inpatient at the West Fort Hospital, Thrissur. The

autorickshaw was owned by the second respondent

and insured with the third respondent. The appellant

was a printer and was earning a monthly income of

Rs.4,000/-. Hence, the appellant claimed an amount of

Rs.6,30,000/- as compensation from the respondents,

which claim was limited to Rs.3,00,000/-.

3. The rider of the motorcycle had also filed O.P.

(MV)No.983/2002 before the same Tribunal, against

the respondents, seeking compensation on account of

the injuries sustained to him in the accident.

4. The first respondent did not contest the

proceeding.

5. The second respondent had filed separate

written statements in the claim petitions contending

that the accident occurred due to the negligence of the

rider of the motorcycle. The second respondent also

disputed the age, income and occupation of both the M.A.C.A.No.1196/2009

petitioners.

6. The third respondent had also filed separate

written statements in both the claim petitions,

reiterating the same contentions as that of the second

respondent. Nonetheless, the third respondent

admitted that the autorickshaw had a valid insurance

coverage.

7. The Tribunal consolidated and jointly tried

the two claim petitions.

8. The appellant had produced and marked

Exts.A1 to A13 in evidence.

9. The Tribunal, after analysing the pleadings

and materials on record, by its common award allowed

the captioned claim petition in part, by permitting the

appellant to recover from the third respondent an

amount of Rs.1,54,450/-. However, the Tribunal

entered a finding that the second respondent had

violated the insurance policy conditions, therefore, the M.A.C.A.No.1196/2009

third respondent was given the right to pay the

compensation amount and recover it from the second

respondent.

10. Dissatisfied with the quantum of

compensation awarded by the Tribunal, the petitioner

is in appeal.

11. Heard; Sri.Sheji P.Abraham, the learned

counsel appearing for the appellant/petitioner and

Sri.Rajan P. Kaliyath, the learned counsel appearing

for the third respondent-insurer.

12. The sole point that arises for consideration in

this appeal is whether the quantum of compensation

awarded by the Tribunal is reasonable and just?.

Negligence and liability

13. Ext.A9 charge sheet filed by the

Kunnamkulam Police in Crime No.746/2001, proves

that the accident occurred due to the negligence of the

first respondent. Even though the third respondent M.A.C.A.No.1196/2009

had admitted the insurance policy, the third

respondent had contended that the first respondent

did not hold a valid driving licence. In fact, the

Tribunal had granted the respondents 1 and 2 an

opportunity to produce the driving licence of the first

respondent, but the same was not produced.

Accordingly, an adverse inference was drawn against

the respondents 1 and 2 and Tribunal has granted the

third respondent the right to recover the compensation

amount from the second respondent. I confirm the

finding of the Tribunal in this regard. Thus, in the

appeal also, I hold that the third respondent is entitled

to pay the enhanced compensation and recover the

amount from the second respondent.

Income

14. The appellant had claimed that he was a

printer in an offset press and was earning a monthly

income of Rs.4,000/-. For the want of materials, the M.A.C.A.No.1196/2009

Tribunal fixed the notional monthly income of the

appellant at Rs.2,000/-.

15. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited

[(2011) 13 SCC 236], the Hon'ble Supreme Court has

fixed the notional income of a coolie worker in the year

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

16. Following the yardstick in the afore-cited

decision and considering the fact that the accident

occurred in the year 2001, I re-fix the notional monthly

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

Disability:

17. The appellant had produced Ext.A3 disability

certificate issued by an Orthopedic Surgeon, who had

certified that the appellant has a permanent disability

of 18%. But, the Tribunal on the basis of Ext.A3 has

fixed the 'functional disability' of the appellant at 10%.

I confirm the said finding.

M.A.C.A.No.1196/2009

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

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

him an amount of Rs.61,200/- towards 'loss of earning

capacity', instead of Rs.40,800/- awarded by the

Tribunal.

Loss of earnings:

19. The Tribunal has found that the appellant

was indisposed for a period of five months. I confirm

the said finding.

20. Again, in view of the re-fixation of the

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

I award him an amount of Rs.15,000/- towards 'loss of

earnings', instead of Rs.10,000/- awarded by the

Tribunal.

Pain and sufferings and loss of amenities:

21. The Tribunal has awarded an amount of

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

Rs.10,000/- under the head 'loss of amenities'. M.A.C.A.No.1196/2009

22. On a consideration of the fact that the

appellant was treated as inpatient for a period of 39

days, that he had undergone patellectomy, that he was

indisposed for a period of five months and also had

suffered a functional disability of 10%, I hold that he is

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

head 'pain and sufferings' and Rs.10,000/- under the

head 'loss of amenities'.

23. With respect to the other heads of

compensation, I find that the Tribunal has awarded

reasonable and just compensation.

24. On an overall re-appreciation of the pleadings

and materials on record and the law referred to in the

afore-cited decisions, I hold that the

appellant/petitioner is entitled for enhancement of

compensation as modified and recalculated above and

given in the table below for easy reference.

 M.A.C.A.No.1196/2009






Sl.No Head of claim               Amount               Amounts
                                  awarded     by       modified and
                                  the Tribunal         recalculated
                                  (in rupees)          by this Court
    1        Transportation                    2,000            2,000
             expenses
    2        Loss of earnings                 10,000           15,000

    4        Pain           and               15,000           25,000
             sufferings
    5        Bystander                         4,000            4,000
             expenses
    6        Extra                             2,000            2,000
             nourishment
    7        Medical                          70,150           70,150
             expenses
    8        Loss of amenities                10,000           20,000
    9        Loss of earning                  40,800           61,200
             capacity
                          Total             1,54,450       1,99,850
                                                          Rounded off to
                                                        Rs.2,00,000

In the result, the appeal is allowed in part by

enhancing the compensation by a further amount of

Rs.45,550/- with interest at the rate of 6% per annum

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

deducting interest for a period of 263 days (i.e., the M.A.C.A.No.1196/2009

period of delay in preferring this appeal and as

ordered by this Court on 08.11.2021 in

C.M.Appln.No.1/2009), and a cost of Rs.7,500/-. The

third respondent is ordered 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. As the

second respondent had violated the insurance policy

conditions, the third respondent is permitted to

recover the compensation amount from the second

respondent. Immediately on the compensation amount

being deposited, the Tribunal shall disburse the

deposited amount to the appellant in accordance with

law.

Sd/-

                                                C.S.DIAS,JUDGE

DST/16.03.22                                                     //True copy/

                                                                P.A.To Judge