Kerala High Court

Sheeba vs Sunil Kumar (Deleted) on 3 April, 2024

                                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                 PRESENT

                                 THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

                     WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946

                                          MACA NO. 1722 OF 2013

       AGAINST AWARD DATED 17.05.2013 IN OPMV NO.3587 OF 2004 OF MOTOR ACCIDENT   CLAIMS   TRIBUNAL,

THRISSUR

APPELLANTS/PETITIONERS 2 TO 4:

       1        SHEEBA
                AGED 48 YEARS
                W/O.LATE CHENTHAMARAKSHAN, PUTHENPURA VADAKKUMPURAMHOUSE, EAST FORT, THRISSUR - 680
                005.
       2        SISITH V.C.
                AGED 22 YEARS
                S/O.LATE CHENTHAMARAKSHAN PUTHENPURA VADAKKUMPURAMHOUSE, EAST FORT, THRISSUR - 680
                005
       3        SISITHA
                AGED 19 YEARS
                D/O.LATE CHENTHAMARAKSHAN, PUTHENPURA VADAKKUMPURAMHOUSE, EAST FORT, THRISSUR - 680
                005.
                BY ADVS.
                SRI.C.HARIKUMAR
                SMT.ANUROOPA JAYADEVAN


RESPONDENTS/RESPONDENTS 2 TO 10:

       *1       SUNIL KUMAR (DELETED)
                S/O.DHARMAN, PERUMBULLY HOUSE, FATHIMA NAGAR,EAST FORT, THRISSUR DISTRICT 680 005.
                (DELETED)
       2        UNITED INDIA INSURANCE CO.LTD PARK HOUSE
                ROUND NORTH, THRISSUR 680 001.
       *3       M.K.MURALI (DELETED) SO.RAGHAVAN MALAKKAL AGENCIES 8314
                C&D YMCA CROSS ROAD, CALICUT 673 001.(DELETED)
       4        SREEKUMAR K.R. SO.RAVEENDRAN PILLAI VATTATHARA HOUSE
                NODOMTHURUTHU, KUTHIATHODE P.O., ALAPPUZHA 688 533.
       5        THE ORIENTAL INSURANCE CO.LTD DIVISIONAL OFFICE
                PRAMOD BUILDING, CHEROOTTY ROAD, CALICUT 673 001.
       6        LESITHA WO.LATE KRISHNANKUTTY NJATUVETTY HOUSE
                PONNUKKARA, THRISSUR DISTRICT 680 306
       7        LISHA DO.LATE KRISHNANKUTTY NJATUVETTY HOUSE
                PONNUKKARA, THRISSUR DISTRICT 680 306.
       *8       LINESH (DELETED) SO.LATE KRISHNANKUTTY NJATUVETTY HOUSE
                PONNUKKARA, THRISSUR DISTRICT 680 306. (DELETED)
       *9       MADAVI (DELETED)MO.LATE KRISHNANKUTTY NJATUVETTY HOUSE
                PONNUKKARA, THRISSUR DISTRICT 680 306. (RESPONDENT NOS. 1,3,8 AND 9 ARE DELETED
                FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 28/11/2022 IN
                IA 1/2022 IN MACA 1722/2013.)(DELETED)
                BY ADVS.
                P.JACOB MATHEW
                MATHEWS JACOB (SR.)

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME

DAY DELIVERED THE FOLLOWING:
 MACA. No. 1722 of 2013
                                    ..2..




                           SOPHY THOMAS, J.
                 =====================

                         M.A.C.A. No. 1722 of 2013

              ========================

                           JUDGMENT

Dated this the 03rd day of April, 2024

The legal heirs of the original petitioner in O.P. (MV)

No. 3587 of 2004 on the file of the Motor Accident Claims

Tribunal, Thrissur are the appellants herein, challenging the

award on the ground of inadequacy of compensation.

2. The original petitioner Sri. Chenthamarakshan met with a

road traffic accident on 20.06.2004, while he was travelling in a

maruti van bearing registration No. KL8/J-502 through National

Highway. At Thuravur junction KL-11/J-7117 mini bus driven

by the 5th respondent in a rash and negligent manner dashed

against the maruti van, and the original petitioner sustained

..3..

serious injuries like open type IIIrd B fracture of both bones of

right leg upper middle 3rd, closed fracture of both bones of left

leg upper 3rd etc etc. He was admitted and treated in hospital for

74 days in total. He suffered permanent disability also due to the

injuries suffered in that accident. He was a 37 year old man,

working as manager in M/s. Popular Hardwares, Palace Road,

Thrissur drawing monthly salary of Rs.5,250/-. He approached

the Tribunal claiming compensation of Rs.17,96,000/-. But

learned Tribunal awarded only Rs.5,70,600/-. Hence this appeal.

3. The 1st respondent was the owner of the maruti van, in

which the original petitioner was travelling, the 2nd respondent

was its driver, and the 3rd respondent was its insurer. The

4th respondent was the owner of the minibus, and the 6th

respondent was its insurer.

4. Pending appeal, the original petitioner died. His legal

heirs were impleaded as additional petitioners 2 to 4. The

1st respondent also died pending the OP, and his legal heirs were

impleaded as additional respondents 7 to 10. Before the Tribunal,

..4..

except respondents 3 and 6 the insurers of the vehicles involved

in the accident, all other respondents remained exparte.

Respondents 3 and 6 contested the case, but admitted the policy.

5. The learned Tribunal found that the accident occurred due

to the rash and negligent driving of the maruti van by the 2 nd

respondent, and so the 3rd respondent insurer of the maruti van

was directed to indemnify the owner, and to compensate the

petitioners. That finding is not under challenge, and hence, it has

become final.

6. In the appeal, respondents 2 and 5, [respondents 3 and 6 in

the OP(MV)]the insurers of the maruti van, and the minibus

entered appearance through counsel, and there was no

appearance for other respondents.

7. Heard learned counsel for the appellants, and learned

counsel for respondents 2 and 5.

8. Learned counsel for the appellants is assailing the award

on the ground of inadequacy of compensation. According to

them, the original petitioner/injured was a 37 year old man

..5..

working as manager in M/s Popular Hardwares, Palace Road,

Thrissur drawing monthly salary of Rs.5,250/-. Exts.X1 to X1c

documents were produced by them to prove his salary. But

learned Tribunal notionally fixed his monthly income as

Rs.4,200/-. But, in paragraph 13 of the impugned award, learned

Tribunal has stated that, the salary shown as Rs.5,250/- was

inclusive of incentives of Rs.1,400/-, and that could not have

been taken as his permanent income. But even relying on the

decision Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Limited [AIR 2011 SC 2951], as the accident

was in the year 2004, he was eligible to get his notional income

fixed @ Rs.4,500/-. Since he was the manager of M/s Popular

Hardwares, as seen from Ext.A13 salary certificate, this Court is

inclined to give an addition of Rs.500/- to fix his notional income

@ Rs.5,000/- per month.

9. The original petitioner/injured was hospitalized for 74

days, as seen from Exts.A5, A6 and A7 discharge summaries.

Learned Tribunal took loss of earning for a period of twelve

..6..

months @ Rs.4,200/-. Since we have fixed his notional income

@ Rs.5,000/-, he is entitled to get loss of earning for twelve

months at that rate. So he is entitled to get Rs.60,000/-

(5,000 x 12). After deducting Rs.50,400/- already awarded by

the tribunal, he was eligible to get Rs.9,600/-.

10. Towards bystander expenses, learned Tribunal awarded

Rs.14,800/- against his claim of Rs.25,000/-. He was hospitalized

for 74 days, and even after discharge, he might not have been

able to attend his ordinary pursuits without the help of a

bystander, as he had suffered fracture of both bones of both legs.

Considering that aspect, this Court is inclined to award

Rs.5,000/- more towards bystander expenses.

11. Towards transportation expenses learned Tribunal

awarded only Rs.6,000/-. Rs.4,000/- more is added, as he was

admitted in hospital in four spells, and attended several reviews.

So this Court is inclined to award Rs.4,000/- more towards

transportation expenses.

12. Towards extra nourishment, no amount is seen awarded

..7..

by the Tribunal. So, this Court is inclined to award Rs.7,000/-

towards extra nourishment as he was hospitalized for 74 days.

13. Towards damages to clothing also, no amount is seen

awarded by the Tribunal. So, this Court is inclined to award

Rs.500/- under that head.

14. Towards pain and suffering, learned Tribunal awarded

Rs.30,000/- alone though his claim was Rs.1,00,000/-. He

suffered fracture of both bones of both legs and was admitted in

hospital for 74 days, and suffered disability also, as seen from

Ext.A8 disability certificate. So, this Court is inclined to award

Rs.20,000/- more towards pain and suffering.

15. Towards disfiguration, learned Tribunal awarded

Rs.30,000/- against his claim of Rs.70,000/-. Ext.A11 series

photographs will show that, his both legs were disfigured and the

stability of right knee was badly affected due to wasting of

muscles. Moreover, the knee joint movements were restricted.

So, this Court is inclined to award Rs.10,000/- more towards loss

of amenities and disfiguration.

..8..

16. Compensation awarded under all other heads seems to be

reasonable, and hence needs no modification.

17. The enhanced compensation awarded in this appeal is given

in the table below:-

SL. No Head of claim Amount Amount Difference awarded awarded in to be drawn by the appeal as enhanced Tribunal compensation 1 Loss of 50,400/- 60,000/- 9,600/-