Kerala High Court
Anoop James vs K.R. Sureshkumar on 6 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
MACA NO. 2307 OF 2012
AGAINST THE ORDER/JUDGMENTOPMV 1328/2004 OF SPECIAL C SPE/CBI-I&3
ADDITIONAL DISTRICT COURT / I ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL ,EKM
APPELLANT/PETITIONER:
ANOOP JAMES
AGED 34 YEARS
S/O. V.V. JAMES KUNJU RESIDING AT VADAPARAMBU HOSUE,
VII/316, KARUVELY ROAD, KUNDANNOOR MARADU.P.O.,
ERNAKULAM.
BY ADVS.
SRI.ANIL S.RAJ
SMT.K.N.RAJANI
SRI.RADHIKA RAJASEKHARAN P.
RESPONDENTS/RESPONDENTS 1 TO 3:
1 K.R. SURESHKUMAR
IW-387/2, A.V. ROAD, KALASIPALAYAM BANGALORE-2.
2 SIBI SEBASTIAN
S/O. ULAHANNAN DEVASSIA KORATTIPARAMBIL HOSUE,
KODIKULAM.P.O., THODUPUZHA PIN-685582.
3 NATIONAL INSURANCE COMPANY LTD.
DIVISIONAL OFFICE, ERNAKULAM-16.
BY ADV SRI.P.G.GANAPPAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.No. 2307 of 2012 2
JUDGMENT
Dated this the 06th day of January, 2023
The appellant is the petitioner in O.P (MV)No.
1328/2004, on the files of the Motor Accidents Claims
Tribunal, Ernakulam. The case was filed under Section
166 of the Motor Vehicles Act.
2. On 13-11-2003, at about 11.30 pm, the
petitioner was the passenger in a car with registration
No. KL- 7/ J2002 driven by one Thomas Kurian who was
a claimant in the O.P (MV) No. 1180/2004 and when it
reached in the place of occurance the offending bus with
registration No. KL 01/ D 1500 owned, driven and
insured with respondents 1 to 3 came from the opposite
direction and hit against the car. The petitioner
sustained serious injuries. The accident happened solely
due to the negligence on the part of the 2 nd respondent
who was the driver of the offending vehicle.
3. The 3rd respondent filed a written statement. It
was admitted that the stage carriage No. KL-1/D 1500
was insured with the respondent under "B" policy from
01-12-2002 to 30-11-2003. It was also submitted that the
stage carriage was plying in Tamil Nadu outside the
Kerala state the relevant time without a valid permit.
Hence, there is no liability to indemnify the 1 st
respondent, owner of the stage carriage, as there is
violation of permit conditions.
4. The Tribunal tried this O.P (MV) along with
two other OP(MV)s and relying on Exts. A19 to A55 and
the oral evidence of PW3, awarded a compensation of Rs.
1, 64, 703/- (rupees One Lakh Sixty Four Thousand
Seven Hundred and Three only) with the interest at the
rate 7.5% from the date of petition. This aggrieved by
the award on various heads, this appeal is filed.
5. Main contention raised by the counsel for the
appellant is that the appellant was aged 26 years and
was the 2nd officer in Merchant Navy. According to him
he had monthly income of Rs. 1,10,250/- (rupees One
Lakh Ten Thousand Two Hundred and Fifty only). To
prove that he had income as stated above, the appellant
had produced photocopies of letter of assignment
marked as Ext.P29 and seaman's employment contract
marked as Ext.A30. Exts. A43 and 44 are also
photocopies of wages for the months of November and
December 2002. The Tribunal did not accept the
documents produced as they were photocopies of the
original. Therefore, the Tribunal took the notional
income as Rs. 20,000/- (rupees Twenty Thousand only).
Since there was no documentary evidence in original and
attested by the Embassy to prove the income, the
tribunal was justified in not accepting the income as
claimed by the appellant and fixed the notional income
as Rs. 20,000/-(rupees Twenty Thousand only). Hence,
the income fixed is justified.
6. As far as pain and sufferings is concerned
though the appellant claimed Rs. 25,000/-(rupees Twenty
Five Thousand only), the Tribunal has awarded only
15,000/- (rupees Fifteen Thousand only). On going
through the injuries sustained, it seems that he has
sustained multiple abrasion right arm mid third
tenderness, abnormal mobility and crepitations at the
junction of mid third and lower third fracture humerus
right at the injunction of mid third and lower third.
Swelling and tenderness mid thoracic region. X-ray T. L.
spine, fracture ribs 8.9.10.11 ribs right side, x-ray -
Antr. Compressed fracture T 9. x-ray right humerus
fracture shaft humerus, comminuted fracture at the
junction of mid third - lower third. On going through the
injuries sustained, the amount of compensation under
the head of pain and sufferings is on the lower side and
therefore, it is enhanced by a further sum of Rs. 10,000/-
(rupees Ten Thousand only)
7. As far as the loss of amenities and enjoyment
of life are concerned, though the claim was for Rs.
25,000/-(rupees Twenty Five Thousand only), the
Tribunal has awarded only Rs. 12,000/-. The petitioner
had compressed fracture of T 9, humerus fracture shaft
humerus, comminuted fracture and swelling and
tenderness mid thoracic region. Taking note of these
aspects, compensation for the loss of amenities and
enjoyment in life is enhanced by a sum of Rs. 10,000/-.
Accordingly the following enhancements are
made to the Award passed by the Tribunal;
Sl. The compensation Amt. Amt.
No. claimed under Awarded by Enhanced in
different heads Tribunal appeal (Rs.)
(Rs.)
1 Shock, pain and 15,000 25,000
sufferings
2 Loss of amenities and 12,000 22,000
enjoyment in life
Total 27,000/- 47,000/-
Amount enhanced - 47,000 - 27,000= 20,000/-
8. In the result the appeal is allowed and the
appellants are entitled for enhance compensation of
Rs.20,000/- (rupees Twenty Thousand only) with interest
at the rate of 7.5% per annum from the date of petition.
All other findings entered by the Tribunal stand
confirmed.
If any amounts have 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.
Sd/-
BASANT BALAJI
JUDGE
mtk
