Bipin Babu vs Jayalal
2022 Latest Caselaw 10295 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
  FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                    MACA NO. 2226 OF 2012
AGAINST THE ORDER/JUDGMENT DATED 12.4.2012 IN OPMV 929/2010
          OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM
APPELLANT/PETITIONER:

          BIPIN BABU
          S/O.BABU RAJAN, RESHMA BHAVAN, MEENADU,
          CHATHANNOOR, KOLLAM.
          BY ADV SRI.PRATHEESH.P


RESPONDENTS/RESPONDENTS:

    1     JAYALAL P.S,
          S/O.PADMANABHA PILLAI, PADMA VILAS, KOONAYIL,
          PARAVOOR, KOLLAM. 691 301.
    2     SUNIL,
          S/O.RAVEENDRAN, VARUVILA VEEDU, KOTTARANANCONAM,
          KOONAYIL, PARAVOOR, KOLLAM-691 301.
    3     THE DIVISIONAL MANAGER
          THE NEW INDIA ASSURANCE CO. LTD., KOLLAM-691 001.
          BY ADVS.
          V.VENUGOPALAN NAIR
          SRI.LAL GEORGE
          RAJESH THOMAS


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA No.2226/2012

                                     2



                   C.JAYACHANDRAN, J.
          ------------------------------------
                  MACA No.2226 of 2012
          -------------------------------------
         Dated this the 7th day of October, 2022


                           J U D G M E N T

1. This appeal is preferred by the claimant in

OP(MV) No.929/2010 of the Motor Accidents Claims

Tribunal, Kollam assailing the award dated 12.4.2012,

essentially on the insufficiency of the quantum of

compensation granted. The appellant/claimant sustained

injuries in a road accident which took place on

3.6.2009.

2. Heard Sri.P.Pratheesh, learned counsel for the

appellant and Sri.Lal George, learned counsel for the

third respondent/insurance company. Perused the

records.

3. Learned counsel for the appellant first submitted

that the notional annual income reckoned by the

Tribunal at Rs.15,000/- is very much on the lower

side. Going by the index indicated in Ramachandrappa MACA No.2226/2012

v. The Manager, Royal Sundaram Alliance Insurance

Company Ltd. [(2011) 13 SCC 236], the claimant is

entitled to a notional income of Rs.7,000/- pertaining

to the year 2009. In answer to the same, learned

counsel for the third respondent/insurance company

pointed out that all what is claimed in the petition

is Rs.5,000/- per month and an amount beyond the same

cannot be granted, since the claimant is the best

judge, insofar as his income is concerned. The

contention of the learned counsel for the insurance

company is liable to be recognised. All the same, the

monthly income claimed at Rs.5,000/- is liable to be

recognised. In the circumstances, the monthly income

is enhanced to Rs.5,000/-.

4. The second contention is with respect to the

compensation on account of pain and suffering. The

Tribunal reckoned only Rs.15,000/- which is on the

lower side, according to the learned counsel for the

appellant. In answer to the same, learned counsel for

the insurance company pointed out that the claimant

was hospitalized only for a period of two days.

However, taking note of the injuries referred to in MACA No.2226/2012

paragraph nos.8 & 9 of the impugned award, this Court

is of the view that a nominal enhancement of

Rs.5,000/- can be granted to the claimant on account

of compensation for pain and suffering. Accordingly,

compensation on account of pain and suffering would

stand enhanced to Rs.20,000/-.

5. Similarly, the loss of earnings reckoned for a

period of 2 months only - quite insufficient according

to the appellant - is also liable to be considered.

This Court is of the opinion that loss of earnings for

three months can be reckoned, having regard to the

totality of the facts and circumstances and the

injuries sustained, as taken note of in Exts.P8 and P9

certificates.

6. Under the head 'loss of amenities', Rs.8,000/-

has been granted, which again, according to the

learned counsel for the appellant, is on the lower

side. Here again, taking note of the injuries

sustained by the claimant as taken note of in Ext.P8

wound certificate and Ext.P9 treatment certificate, MACA No.2226/2012

this Court is inclined to enhance the same to

Rs.12,000/-.

7. Finally, a sum of Rs.1,000/- granted under the

head extra nourishment is enhanced to Rs.2,000/-.

8. In the circumstances, the MACA is allowed and the

compensation amount to be granted to the

appellant/claimant is re-worked as indicated in the

tabular statement herein below:

Sl.    Head of claim                     Amount                  Total    amount
No.                                      awarded    by           after
                                         the                     enhancement in
                                         Tribunal(Rs)            appeal (Rs.)
1      Loss of earnings                           2500                     15000
                                                                          (5000x3)
2      Transportation        to                           3000                 3000
       hospital
3      Extra nourishment                                  1000                  2000
4      Pain and suffering                                15000                 20000
5      Medical expenses                                   9500                  9500
6      Loss of amenities                                  8000                 12000
       Total                                             39000                 61500
       Amount enhanced = Rs.22,500/-                   (61500 - 39000)



9.     The    appellant           filed           IA     No.1/2022       seeking

amendment of the appeal memorandum to incorporate

the ground under which the appellant seeks the MACA No.2226/2012

insurer to pay the amount at the first instance and

to recover the same from the owner. In the impugned

award, due to absence of fitness certificate, the

third respondent/ insurance company was exonerated

from the liability to pay the compensation amount

and the owner and the driver were held jointly

liable to pay the same. In Pareed Pillai V. Oriental

Insurance Co, Ltd.[2018 (5) KHC 1], this Court held

that absence of permit or fitness certificate,

though a fundamental breach, the interests of

justice demands the insurer to pay the compensation

amount and to recover it from the owner of the

vehicle. Taking note of the above legal position,

this Court interferes with the exoneration of the

third respondent/insurance company and directs the

said respondent to pay the compensation amount to

the appellant/claimant at the first instance with an

enabling clause to recover the same from the owner

and driver of the vehicle.

10. The Insurance Company shall pay interest for the

amounts awarded by the Tribunal at the rate directed MACA No.2226/2012

in the impugned award; and for the enhanced amounts at

the rate of 5% from the date of petition. If any

amount has already been paid, the same shall be

granted set off. The claimants shall produce the

details of the Bank account before the Insurance

Company/Tribunal within one month from the date of

receipt of a certified copy of this judgment and

amount shall be transferred to the Bank account

directly through NEFT/RTGS mode, within a period of

one month thereafter. If the Bank account is not

furnished within the time stipulated, it is made clear

that no interest shall run on the enhanced amount

after the period stipulated by this Court. However, if

the Insurance Company fails to deposit the amount as

directed, interest on enhanced amount shall also run

at the rate ordered by the Tribunal from the date of

petition.

Sd/-

C.JAYACHANDRAN JUDGE jg