Kerala High Court

Sivadasan Pillai vs Baburajan on 4 June, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
      TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
                       MACA NO. 3232 OF 2015
AGAINST THE ORDER/JUDGMENT DATED 30.01.2004 IN OPMV NO.384 OF 1999
OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM

APPELLANT/CLAIMANT:

          SIVADASAN PILLAI
          AGED 39 YEARS
          S/O.MADHAVAN PILLAI, KOCHUKALLUVILLA VEEDU, NEAR
          KOCHALUMMODU, KUREEPUZHA CHERRY, THRIKADAVOOR VILLAGE,
          KOLLAM DISTRICT.
          BY ADVS.
          SRI.C.RAJENDRAN
          SRI.C.P.ANIL RAJ
          SRI.K.R.RANJITH
          SMT.R.S.SREEVIDYA

RESPONDENTS/RESPONDENTS:

    1     BABURAJAN
          S/O.PARAMU, CHARUVILA VEEDU, EDAMON P.O., KOLLAM
          DISTRICT 691 307. ( DELETED)
    2     SUBHAGAN, LITTLE STAR
          MAYYANADU, KOLLAM DISTRICT 691 303. ( DELETED)
    3     THE DIVISIONAL BRANCH MANAGER
          NATIONAL INSURANCE CO. LTD PARAMESWARAN PILLAI NAGAR,
          KOLLAM DISTRICT 691 001.
    4     VISWANATHAN
          S/O.PARAMESWARAN, MOHANAVILASAM, MURUNTHAL CHERI,
          THRIKKADAVOOR VILLAGE, KOLLAM 691 001. ( DELETED)
    5     SATHEESH KUMAR
          S/O.CHELLAPPAN PILLAI, KOKKALAYIL VEEDU, KUREEPUZHA,
          KOLLAM DISTRICT 691 604.
    6     THE DISTRICT INSURANCE OFFICER
          KSFE BUILDING, CHINNAKKADA, KOLLAM DISTRICT 691 001.
          [RESPONDENT NOS 1,2 AND 4 ARE DELETED FROM THE PARTY
          ARRAY AS PER ORDER DATED 31/3/2021 IN I.A. NO. 1/2020
          IN THE MACA]
 MACA NO. 3232 OF 2015            2



           .
OTHER PRESENT:

            GP-SRI.K.M.FAIZAL


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 3232 OF 2015                       3



                              J U D G M E N T

This appeal is at the instance of the

claimant in OP(MV) No.384 of 1999 on the file

of Motor Accidents Claims Tribunal, Kollam

impugning the award on the ground of inadequacy

of compensation.

2. On 15/6/1998 at 8.15 pm the appellant who

was riding pillion on a motorcycle ridden by

the 5th respondent, was knocked down by KBV 6280

Ambassador car driven by the 2nd respondent in

a rash and negligent manner. The appellant

sustained serious injuries including tendon

injury on the dorsal side of foot. He was

hospitalized for 64 days. He had undergone

wound debridement and repair of tendon. He was

a 26 year old plumber earning monthly income of

Rs.3,500/- at the time of accident. He

approached the Tribunal claiming compensation

of Rs.1,50,000/-. But learned Tribunal awarded

only Rs.80,540/- and hence this appeal.

3. Respondents 1 to 3 are the owner, driver

and insurer respectively of the offending

Ambassador car, and respondents 4, 5 and 6 are

the owner, rider and insurer respectively of

the motorcycle in which the appellant was

pillion riding.

4. Learned Tribunal found that the accident

occurred due to the sole negligence of the

driver of the Ambassador car, and so, the 3rd

respondent insurer of the Ambassador car was

liable to compensate the appellant. That

finding is not under challenge.

5. In the appeal, the 3rd respondent -insurer

of the Ambassador car entered appearance

through counsel and admitted the accident as

well as the policy of the Ambassador car. But

according to them, the compensation awarded by

the tribunal is just and reasonable, and hence

it needs no modification.

6. Now this Court is called upon to answer

whether there is any illegality, irregularity

or impropriety in the impugned award warranting

interference by this Court.

7. Heard learned counsel for the appellant

and learned counsel for the 3rd respondent

insurer.

8. Learned counsel for the appellant would

submit that, notional income of the appellant

fixed @ Rs.1,700/- per month, was too meager.

According to him, the appellant was earning

monthly income of Rs.3,500/-. But no documents

were there to prove his job or income. Even

relying on the decision Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Limited [AIR 2011 SC 2951], he was not

eligible to get his notional income fixed more

than Rs.1,500/- as the accident was in the year

1998. So the notional income fixed by the

tribunal @ Rs.1,700/- is not liable to be

interfered with.

9. Learned Tribunal assessed loss of earning

for a period of three months. But Exhibit A5

series discharge summary will show that the

appellant was hospitalized for 64 days in

total. Moreover, he had suffered extensive

lacerated injury exposing tendon on the foot

and he had undergone wound debridement and

repair of tendons etc. So this Court is of the

view that loss of earning for six months is

only reasonable. At the rate of Rs.1,700/- per

month for six months, the appellant is entitled

to get Rs.10,200/-. After deducting Rs.5,100/-

already awarded by the tribunal, he is entitled

to get the balance amount of Rs.5,100/- as

enhanced compensation under the head loss of

earning.

10.Towards bystander expenses, learned

Tribunal awarded only Rs.2,000/-. The appellant

was hospitalized for 64 days in total. This

court is inclined to fix bystander expenses @

Rs.100/- per day for 64 days of hospitalization

which will come to Rs.6,400/-. After deducting

Rs.2,000/- already awarded by the tribunal, the

appellant is entitled to get the balance amount

of Rs.4,400/- under the head bystander

expenses.

11. Towards transportation expenses, this

court is inclined to award Rs.1,000/- more, as

the appellant was hospitalized on two different

occasions, and even after discharge he had to

attend hospital for periodic review.

12. Towards extra nourishment, this court is

inclined to award Rs.2,500/- as he was

hospitalized for 64 days with extensive

lacerated wounds exposing his tendon. After

deducting Rs.1,300/- already awarded, he is

entitled to get balance amount of Rs.1,200/-,

as enhancement under the head extra

nourishment.

13. Towards pain and suffering, this court

is inclined to award Rs.5,000/- more,

considering the nature of injuries, period of

hospitalization etc.

14. Towards loss of amenities, learned

Tribunal awarded only Rs.5,000/-. Ext.A7

disability certificate issued by the medical

board will show that:- Dorsiflexion of his

right ankle joint was restricted by 5 degree,

making squatting, running and climbing steps

difficult, Flexion of right big toe was not

possible, secondary osteoasthritis of right

ankle joints were noted, and there was

extensive scar on the anterior aspect of the

right ankle joint. Considering these facts and

also considering the fact that the appellant

was a 26 year old young man, at the time of

accident, this court is inclined to award

Rs.5,000/- more, under the head loss of

amenities.

15. The appellant suffered disability of 11%

as reported by the medical board in Ext.A7

certificate. But learned Tribunal accepted only

10% without assigning any special reasons.

Since it was a certificate issued by the

medical board of District Hospital, Kollam,

this court is inclined to accept the disability

reported by the medical board as such. Taking

his monthly income @ Rs.1,700/-, adopting

multiplier of 17, the compensation for 11%

disability could be assessed as Rs.38,148/-

(1700x12x17x11/100). After deducting

Rs.32,640/- already awarded by the tribunal,

the appellant is entitled to get the balance

amount of Rs.5,508/- as enhanced compensation

for disability.

16. The compensation awarded under all other

heads seems to be reasonable, and hence it

needs no modification.

17. The enhanced compensation awarded in this

appeal is stated in the table given below:-

Amount Amount Difference to be Head of claim drawn as awarded by awarded in the Tribunal appeal enhanced compensation 10,200/-

Loss of earning 5,100/- 5,100/-

                                             [1700x6]
       Bystander                              6,400/-
                           2,000/-                                4,400/-
       expenses                              [100x64]
       Transportation
                           2,000/-            3,000/-             1,000/-
       expenses
       Extra
                           1,300/-            2,500/-             1,200/-
       nourishment
       Pain and
                          15,000/-           20,000/-             5,000/-
       suffering
       Loss of
                           5,000/-           10,000/-             5,000/-
       amenities
       Disability         32,640/-           38,148/-             5,508/-
                                              Total              27,208/-

18. So the appellant is entitled to get

enhanced compensation of Rs.27,208/-.

19. Learned counsel for the 3rd

respondent-insurer would submit that the

accident is of the year 1998, and the claim

petition is of the year 1999. Learned Tribunal

awarded interest @ 9%. Since they have to pay

interest for all these 15 years, the interest

rate may be reduced from 9% to 8%. The appeal

was filed with a delay of 4182 days. Though the

appeal was filed in the year 2015, it came up

for hearing only in the year 2024 after a

lapse of about 9 years. An early hearing

petition was seen filed by the appellant only

in the year 2024. So this Court is inclined to

award 8% interest for the enhanced compensation

as it seems reasonable.

20. The 3rd respondent/insurer is directed

to deposit the enhanced compensation of

Rs.27,208/- with interest at 8% per annum,

from the date of petition till the date of

deposit (excluding 4182 days of delay in filing

the appeal) before the Motor Accidents Claim

Tribunal, Kollam, within a period of two months

from the date of receipt of a copy of this

judgment. Learned Tribunal shall disburse that

amount to the appellant, after deducting the

liabilities, if any, towards Tax, balance court

fee, legal benefit fund etc.

The appeal is allowed to the extent as

above, and no order is made as to costs.