Kerala High Court

Bhargavan vs Rajesh K on 7 June, 2024

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
    FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946
                     MACA NO. 869 OF 2015
AGAINST THE AWARD DATED 05.09.2014 IN OPMV NO.473 OF 2011 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM

APPELLANT/PETITIONER:

  BHARGAVAN
  AGED 43 YEARS
  S/O. KUNJIRAMAN, CHEVON HOUSE,
  THIRUKULAM P.O., CHAPPARAPADAVU
  TALUK, KANNUR DISTRICT.

  BY ADV SRI.K.RAVI (PARIYARATH)

RESPONDENTS/RESPONDENTS:

1 RAJESH K
  AGED ABOUT 40 YEARS
  S/O. KRISHNA MOORTHY VAIDHYER,
  SUBRAMAHNIA VIHAR, PALAPPURAM P.O.,
  OTTAPALAM TALUK, PALAKKAD DISTRICT
  (DRIVER OF THE CAR KL-09-R8181).

2 KRISHNAMOORTHY S.
  SUBRAMAHNIA VIHAR, PALAPPURAM P.O.,
  OTTAPALAM TALUK, PALAKKAD DISTRICT
  (OWNER OF THE CAR KL-09-R-8181).

3 NATIONAL INSURANCE COMPANY LTD.
  DIV.NO. 10, FLAT NO. 101-106, NO.1 BMC
  HOUSE, CONNAUGHT PLACE, NEW
  DELHI-110001 (INSURER OF THE CAR
  KL-09-R-8181).

4 SAJU K.B.
  AGED 34 YEARS
  S/O. BHASKARAN K., USHUS, PALAKKAD,
  CHARAMANGALAM P.O., MUHAMMA, ALAPPUZHA
  DISTRICT, PIN-690101 (RIDER OF THE
  MOTOR CYCLE KL-32-A 4151).

5 THE UNITED INDIA INSURANCE CO. LTD.
  MAIN ROAD OTTAPALAM-1 (INSURER OF THE
  MOTOR CYCLE KL-32-A-4151).
 MACA No.869 of 2015             2


   BY ADVS.
   SRI.R.SREEHARI
   SRI.SEBASTIAN VARGHESE, SC, NATIONAL
   INSURANCE CO. LTD.
   SRI.P.K.MANOJKUMAR,SC,UNITED INDIA
   INSURANCE CO.LTD
   SRI.M.KRISHNA DAS
   SMT.SAJITHA M

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA No.869 of 2015               3


                         JUDGMENT

This appeal is at the instance of the claimant in OP(MV)

No.473 of 2011 on the file of Motor Accidents Claims Tribunal,

Ottapalam, impugning the award on the ground of inadequacy of

compensation.

2. On 03.04.2010 at 12 noon, while the appellant was pillion

riding a motorcycle through Lakkidi-Ottapalam road, he was

knocked down by KL-09 R-8181 car driven by the 1st respondent, in

a rash and negligent manner. He sustained serious injuries

including type IIIA open comminuted fracture, shaft of femur (Rt.),

type IIIB open comminuted fracture of both bones of right leg with

bone, muscle and skin loss coupled with lacerated wounds. He was

hospitalised for 38 days and he had undergone various surgical

procedures. He was a 43 year old lineman working in KSEB

drawing monthly salary of Rs.14,059/. Since the date of accident,

he was on leave till 26.11.2012 availing 968 days of leave in total.

He had suffered permanent disability of 10%. He approached the

Tribunal claiming compensation of Rs.9 lakh. But, learned Tribunal

awarded only Rs.4,89,400/-. Hence this appeal.

3. 1st respondent was the driver of the offending car. 2nd

respondent was its owner and 3rd respondent was its insurer. 4th

respondent was the rider of the motorcycle in which the appellant

was the pillion rider and 5th respondent was the insurer of that

motorcycle.

4. 3rd respondent/insurer admitted the accident as well as

the policy of the offending car. Learned Tribunal, on analysing the

facts and evidence, found that the accident occurred due to the

rash and negligent driving of the offending car by the 1st

respondent, and since that vehicle was validly insured with the 3rd

respondent, learned Tribunal directed the 3rd respondent to

indemnify the owner of the car and thereby to compensate the

appellant/claimant.

5. In the appeal also, 3rd respondent/insurer entered

appearance through counsel and admitted the policy. But,

according to them, the compensation awarded by the Tribunal is

just and reasonable and so, no interference is warranted in the

award of the Tribunal.

6. Now this Court is called upon to find out 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 respondents 1 to 3 and 5.

8. Since the accident occurred due to the rash and negligent

driving of the offending car by the 1st respondent which was duly

insured with the insurer, learned Tribunal fixed liability on the 3rd

respondent/insurer to compensate the claimant. That finding is

not under challenge. So, now we are concerned only with the

quantum of compensation, disputed by the appellant.

9. Learned counsel for the appellant would submit that,

though the Tribunal accepted the salary of the appellant as per

Ext.A8 salary certificate, loss of earning was assessed only for 11

months. In paragraph 11 of the award, learned Tribunal has stated

that, 89 days of commuted leave availed by the claimant cannot be

taken into consideration as he had not lost any salary during the

said period. Moreover, LWA for 548 days from 28.05.2011 to

26.11.2012 also cannot be considered as it was not on medical

grounds. Regarding 89 days of commuted leave, true that, the

appellant did not lose his salary during that period. But, he lost 89

days of commuted leave which he could have utilised for any other

purpose of his choice, but because of this accident. Regarding 548

days of LWA also, though the Tribunal has stated that, it was not

on any medical ground, Ext.X2 document clearly shows that, the

appellant had availed LWA for 548 days on medical ground as per

order No.EB4(a)/LWA/17/2010 dated TVPM 22.04.2014 of CE

(HRM), for the period of 28.05.2011 to 26.11.2012. That leave

application was supported with Medical Certificate issued by Dr.E.G

Mohan Kumar. So, the Tribunal went wrong in finding that LWA for

548 days was not on medical ground.

10. Ext.A7 leave details of the appellant shows that, he had

availed 968 days of leave in total, from the date of accident till

26.11.2012, which comes to 32 months. Learned Tribunal

assessed loss of earning for 11 months. So, he is eligible to get

compensation for loss of earning for 21 months @ Rs.14,059/- per

month, which will come to Rs.2,95,239/-. The appellant is entitled

for that amount, as enhanced compensation under the head loss of

earning.

11. Towards bystander expenses, learned Tribunal awarded

only Rs.200/-per day for 38 days of hospitalisation. It has come

out in evidence that, after the accident on 03.04.2010, the

appellant was on leave till 26.11.2012. He had suffered type IIIA

open comminuted fracture shaft of femur (Rt.), type IIIB open

comminuted fracture of both bones of right leg with bone, muscle

and skin loss. So, even after discharge from hospital, he might

have been pulling on, with the assistance of a bystander. So, this

Court is inclined to take bystander expenses for a period of 60 days

@ Rs.300/- per day which will come to Rs.18,000/-. After

deducting Rs.7,600/- already awarded, he is entitled to get the

balance amount of Rs.10,400/- towards enhancement under the

head bystander expenses.

12. Towards pain and suffering, learned Tribunal awarded

only Rs.40,000/-. Considering the nature of injuries, period of

hospitalisation and the leave availed by him as he was not able to

resume his job due to the injuries suffered, this Court is inclined to

award Rs.10,000/- more under the head pain and suffering.

13. Learned Tribunal awarded Rs.60,000/- in total considering

loss of amenities under the head permanent disability. The

appellant was a lineman working in KSEB. As per Ext.X1 disability

certificate issued by the Medical Board, he suffered permanent

disability of 10%. As he was employed in KSEB, till his retirement,

there might not have been any loss of salary on account of

disability. He was aged only 43 at the time of accident.

Retirement age in KSEB is 56 years. So, he might have retired in

the year 2022. Even after retirement, if he was healthy, he could

have been engaged in any other occupation profitably. So,

disability aspect can be taken into account for the income he could

have earned after his retirement apart from his pension. Notional

income of Rs.10,000/- can be taken for a man of 56 years in the

year 2022. The multiplier applicable is 9 when his age is taken as

56. So, for 10% disability, he is eligible to get compensation of

Rs.1,08,000/- (10000x12x9x10/100). After deducting Rs.60,000/-

already awarded, the appellant is entitled to get the balance

amount of Rs.48,000/-.

14. Towards loss of amenities, this Court is inclined to award

Rs.15,000/-, considering the nature of injuries suffered by the

appellant and the disability of 10% caused thereby.

15. The compensation awarded under all other heads seems

to be reasonable and it need not be interfered with.

                            Amount           Amount awarded   Difference to be
      Head of claim       awarded by            in appeal         drawn as
                          the Tribunal                           enhanced
                                                   (3)         compensation
          (1)                 (2)                                    (4)


  Loss of earning        Rs.1,54,649/-        Rs.4,49,888/-    Rs.2,95,239/-

  Bystander expenses       Rs.7,600/-          Rs.18,000/-      Rs.10,400/-

  Pain and suffering      Rs.40,000/-          Rs.50,000/-      Rs.10,000/-

  Compensation for        Rs.60,000/-         Rs.1,08,000/-     Rs.48,000/-
  permanent disability

  Loss of amenities            -               Rs.15,000/-      Rs.15,000/-

  Total                  Rs.2,62,249/-       Rs.6,40,888/-    Rs.3,78,639/-

16. In the result, the appellant is entitled to get enhanced

compensation of Rs.3,78,639/- rounded to Rs.3,78,650/- (Rupees

Three lakh seventy eight thousand six hundred and fifty only).

The 3rd respondent/insurer is directed to deposit the

enhanced compensation of Rs.3,78,650/- (Rupees Three lakh

seventy eight thousand six hundred and fifty only) with interest @

9% per annum from the date of petition till the date of deposit

(except 89 days of delay in filing the appeal) before the Motor

Accidents Claims Tribunal, Ottapalam, within a period of two

months from the date of receipt of a copy of this judgment.

Learned Tribunal shall disburse that amount to appellant, after

deducting the liabilities, if any, towards Tax, balance court fee and