Kerala High Court
Jayaprakash vs Abdul Latheef on 3 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RESENT
P
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
RD
WEDNESDAY, THE 3
DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
MACA NO. 321 OF 2013
AGAINST THE AWARD DATED 28.04.2012 IN OPMV NO.2383 OF 2007 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR
APPELLANT/PETITIONER:
AYAPRAKASH, S/O.MADHAVAN, NEDUMTHOTTIYIL HOUSE,
J
KURIACHIRA P.O., POOLAKKAL, THRISSUR DISTRICT.
BY ADV SRI.DILIP J. AKKARA
RESPONDENTS/RESPONDENTS:
1
ABDUL LATHEEF SAIDALY, 403/GARDEN GATE APARTMENTS,
GANDHI NAGAR, KOCHI, ERNAKULAM - 682 014.
2
AFSAL, S/O.MUHAMMEDKUTTY, VALIYIL VEEDU, PILLAKKOTTU,
POOKKOTT, THOZHIYOOR P.O., THRISSUR.
3
THE ORIENTAL INSURANCE CO.LTD., KOCHI 682 016.
4
RAMESH BABU, S/O.RAMAKRISHNAN, THAZHATHUPARAMBIL HOUSE,
KURIACHIRA P.O., POOLAKAL, THRISSUR- 680 006.
MACA 321 of 2013 2
5
THE UNITED INDIA INSURANCE CO.LTD.,
ROUND NORTH, PARK HOUSE, THRISSUR- 680 001.
Y ADVS.
B
SRI.LAKSHMANAN T J, SC, THE UNITED INDIA INSURANCE CO.LTD.
SRI.P.V.JYOTHI PRASAD,SC, THE ORIENTAL INSURANCE CO.LTD.
SRI.S.SACHITHANANDA PAI, SC, THE ORIENTAL INSURANCE CO.LTD.
THIS
MOTOR
ACCIDENT
CLAIMS
APPEAL HAVING BEEN
FINALLY
EARD
H ON
03.04.2024,
THE
COURT
ON
THE
SAME
DAY
DELIVERED
THE
FOLLOWING:
MACA 321 of 2013 3
J U D G M E N T
This appealisfiledbythepetitionerinOP(MV)No.2383of
2007 on the file of Motor Accidents Claims Tribunal, Thrissur,
challenging the award on the ground of inadequacy of
compensation.
2. The appellant, while travellingpillioninKL-8/AB-1171
motorcycle, through Kunnamkulam-Thrissur Public Road,
KL-7/AR-888 Qualis car driven by the 2nd respondent dashed
against the motorcycle, and the appellant fell down on the
road,andsustainedType-IIIopenfractureofbothbonesofleft
leg middle third with extensive laceration. He was admitted
and treated in hospital for 102 days in total. He suffered
permanent disability also due to the injuries suffered in the
accident.HeapproachedtheTribunalclaimingcompensationof
Rs.4,00,000/-. But learned Tribunal awarded only
Rs.2,16,990/-. Hence this appeal.
3. The1strespondentistheowneroftheQualiscar,2nd
respondent is its driver and the 3rd respondent is its Insurer.
The 4th respondent is the owner-cum-rider of the motorcycle,
MACA 321 of 2013 4
in which the appellant was the pillion rider, and the 5th
respondent is the Insurer of the motorcycle.
4. Respondents 1,2and4remainedexpartebeforethe
Tribunal. Respondents 3 and 5 contested the case, but they
admitted the policy.
5. LearnedTribunalfoundthattheaccidentoccurreddue
to the negligence of Respondents 2 and 4, and since they
contributed equally to the accident, both were found liable to
compensate the appellant in equal share. That finding of the
Tribunal is not challenged either by the 3rd respondent or by
the 5th respondent, and hence that finding has become final.
6. In the appeal also, respondents 1, 2 and 4 did not
appear. Respondents 3 and 5 entered appearance through
counsel, and admitted policy of the vehicles involved in the
accident.
7.NowthisCourtiscalledupontofindoutwhetherthere
isanyillegality,irregularityorimproprietyintheawardpassed
by the Tribunal, warranting interference by this Court.
8. Heard learned counsel for the appellant and learned
MACA 321 of 2013 5
counsel for respondents 3 and 5.
9. Learned counsel for the appellant is challenging the
quantum of compensation awarded by the Tribunal. According
to him, the appellant was a 28 year old headload worker,
earning monthly income of Rs.6,000/-. LearnedTribunalfixed
hisnotionalincome@Rs.3,000/-.Butnoamountwasawarded
towardslossofearning.Truethat,beingaheadloadworker,he
maynothaveanydocumentstoprovehismonthlyincome.But
relyingonthedecisionRamachandrappav.Manager,Royal
Sundaram Alliance Insurance Company Limited [AIR
2011 SC 2951], evenaCoolieworkerwaseligibletogethis
notional income fixed @ Rs.5,500/- in the year 2006. So, this
Court is inclined to fix his notional income @ Rs.5,500/-.
10. The appellant was hospitalized for 102 days. Learned
counsel for the appellant would say that there was
hospitalisation on 8 different occasions. The last in the series
wasintheyear2008. Consideringtheseaspects,thisCourtis
inclined to take his loss of earning for a period of 12 months.
@ Rs.5,500/- per month, he is eligible to get Rs.66,000/-
MACA 321 of 2013 6
towards loss of earning.
11.Towardstransportationexpenses,thoughhisclaimwas
Rs.10,000/- only, Rs.2,000/- was awarded by the Tribunal.He
wasadmittedinhospital8times,andeverytime,hemayhave
to meet transportation expenses. So this Court is inclined to
award Rs.5,000/- towards transportation expenses. Deducting
Rs.2,000/- already awarded, he is entitled to get the balance
amount of Rs.3,000/- as enhancement in transportation
expenses.
12. Towards extra nourishment, though Rs.5,000/- was
claimed, no amount was awarded by the Tribunal. He was
hospitalised for 102 days with Type-III open fracture of both
bones of left leg with extensive laceration, and even after
discharge, he was continuing the treatment. So, this Court is
inclined to award Rs.5,000/- towards extra nourishment as
prayed for by the appellant.
13. Towards damage to clothing, Rs.500/- is given, as the
Tribunal did not give any amount under that head.
14. Towardsbystanderexpenses,learnedTribunalawarded
MACA 321 of 2013 7
Rs.15,300/-. Sincehewashospitalisedfor102days,andeven
after discharge, he was continuing his treatment, thisCourtis
inclined to give bystander expenses for 150 days @ Rs.150/-
per day. So,heisentitledtogetRs.22,500/-. Afterdeducting
Rs.15,300/- already awarded, he isentitledtogetthebalance
amount of Rs.7,200/- under the head 'bystander expenses'.
15. Towards pain and suffering, though his claim was
Rs.50,000/-, learned Tribunal awarded only Rs.15,000/-.
Consideringthenatureofinjuriessufferedbytheappellantand
theperiodofhospitalisationon8differentoccasions,thisCourt
is inclined to award Rs.10,000/- more towards pain and
suffering.
16. Towards loss of amenities, learned Tribunal awarded
Rs.10,000/- only. Considering the nature of injury and the
disability noted in Ext.A8 disability certificate such as
shorteningofleftleg,wastingofmuscles,lossofflexionofleft
knee etc. etc., this Court is inclined toawardRs.5,000/-more
towards loss of amenities.
17. Ext.A8 disability certificate shows that the appellant
MACA 321 of 2013 8
had suffered whole body disability of 28.2%. That certificate
was not issued by any Medical Board, and the Doctor, who
issued the same was not examined also. So, learned Tribunal
accepted the disability to the extent of 16%, and this Court
finds no reason to vary the same. We have fixed his notional
income@Rs.5,500/-.Themultiplierapplicableis17ashewas
aged only 28. So his disability compensation can be assessed
as Rs.1,79,520/- (5,500x12x17x16%). After deducting
Rs.1,03,680/-alreadyawardedbytheTribunal,theappellantis
entitled to get the balance amount of Rs.75,840/-.
18. Compensation awarded under all other heads seems
to be reasonable, and hence it needs no modification.
Head of claim Amount Amount ifference to
D
warded by
a awarded in be drawn as
the Tribunal appeal enhanced
compensation
Loss of earning ..... Rs.66,000/- Rs.66,000/-
ransportation
T
expenses Rs.2,000/- Rs.5,000/- Rs.3,000/-
Extra nourishment .... Rs.5,000/- Rs.5,000/-
amage to
D .... Rs.500/- Rs.500/-
clothing
MACA 321 of 2013 9
ystander
B
expenses Rs.15,300/- Rs.22,500/- Rs.7,200/-
Pain and suffering Rs.15,000/- Rs.25,000/- Rs.10,000/-
Loss of amenities Rs.10,000/- Rs.15,000/- Rs.5,000/-
ompensation for
C
permanent Rs.1,03,680/- Rs.1,79,520/- Rs.75,840/-
disability
Total Rs.1,72,540/-
19.Intheresult,theappellantisentitledtogetenhanced
compensation of Rs.1,72,540/- (66,000 + 3,000 + 5,000 +
500 + 7,200 + 10,000 + 5,000 + 75,840).
20.Asalreadystated,learnedTribunalfixedtheliabilityto
compensate the appellant, equally on Respondents 3 and 5.
Sincethatfindingisnotunderchallenge,theyareliabletopay
the enhanced compensation also to the appellant, in equal
share.
21. In the result, respondents 3 and 5 are directed to
deposit the enhanced compensation of Rs.1,72,540/- (Rupees
OneLakhSeventyTwoThousandFiveHundredandFortyonly),
in the ratio 50:50, with interest @ 8% per annum, from the
dateofthepetitiontillthedateofdeposit,(excluding123days
MACA 321 of 2013 10
of delay in filing the appeal), within a period of two months
fromthedateofreceiptofacopyofthisjudgment.Thedeposit
must be in terms of the directives issued by this Court in
Circular No.3 of 2019 dated 06/09/2019 and clarified in
O.M.No.D1/62475/2016dated07/11/2019afterdeductingthe
liabilities, if any, of the appellant towards Tax, balance court
fee and legal benefit fund.
The appeal is allowed to the extent as above, and no
order is made as to costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
