Kerala High Court
Babu vs Thomas on 12 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
WEDNESDAY, THE 12
DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
MACA NO. 2594 OF 2014
AGAINST THE AWARD DATED 26.04.2014 IN OPMV NO.227 OF 2011 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/PETITIONER:
ABU,
B
AGED 41 YEARS,
S/O.KUNJIPPI, RESIDING AT ONATTU HOUSE,
KAVAKKADU KARA, ENANALLOOR VILLAGE.
Y ADVS.
B
SRI.R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P
RESPONDENTS/RESPONDENTS 2 TO 4:
1
THOMAS, S/O.PAILY, PUKKATTUPARAMBIL HOUSE, NEAR
THADIPPALAM CHURCH, THEKKUM BHAGOM KARA, THODUPUZHA
VILLAGE, PIN 685 584.
2
NATIONAL INSURANCE COMPANY LIMITED,
FIRST FLOOR, PULIMOOTTIL SHOPPING ARCADE,
THODUPUZHA BRANCH, PIN 685 584.
MACA 2594 of 2014 2
3
KUMARY,
W/O.LATE PUSHPAN K.R, KULATHIL HOUSE, VANNAPURAM
(PO), AMBALAMPADY, IDUKKI DISTRICT, PIN 685 607.
Y ADV E.M.JOSEPH, SC, NATIONAL INSURANCE COMPANY
B
LIMITED
HIS
T MOTOR
ACCIDENT CLAIMS
APPEAL HAVING COME
UP
FOR
ADMISSION
ON
12.06.2024,
THE
COURT
ON
THE
SAME
DAY
DELIVERED
THE FOLLOWING:
MACA 2594 of 2014 3
J U D G M E N T
The claimant in OP(MV)No.227 of 2011 has filed this
appeal challenging theawardinOP(MV)No.227of2011onthe
file of the Motor Accidents Claims Tribunal, Muvattupuzha, on
the ground of inadequacy of compensation.
2. On 20.03.2010 at 3.00 p.m., while the appellant was
riding a motorcycle through Ayavana -Kavakkadupublicroad,
KL-06/A-7438 scooter ridden by the2ndrespondent,inarash
and negligent manner, dashed against his motorcycle, and he
was thrown down, and he sustained serious injuries including
fracture of right patella, contusion over cervical spine etc. He
was hospitalised for 11 days. He was a 38 year old coolie,
earning monthly income of Rs.6,000/-. He approached the
Tribunal, claiming compensation of Rs.2.5 lakh. But learned
Tribunal awarded only Rs.97,951/- and hence this appeal.
3. The 1st respondent was the owner of the offending
scooter, 2nd respondent was its rider and the 3rd respondent
was its Insurer. Pending original petition, the 1st
MACA 2594 of 2014 4
respondent-owner passed away and his legal representative
was impleaded as additional 4th respondent.
4. Before the Tribunal, respondents 2 and 4 remained ex
parte. The 3rd respondent-Insurer admitted thePolicy,though
disputed its liability, as there was violation of the Policy
conditions.
5. Learned Tribunal, on analysing thefactsandevidence,
foundthattheaccidentoccurredduetotherashandnegligent
riding of the offending scooter by the 2nd respondent. Since
that scooter was validly insured with the 3rd respondent, the
Insurer was directed to compensate the claimant initially, but
since there was violation of the Policy conditions, they were
permittedtorecoverthatamountfromthe4threspondent,the
legal representative of the deceased owner.
6. In the appeal, the 2nd respondent-Insurer [R3 in the
OP(MV)]appearedthroughcounselandaccordingtothem,the
compensation awarded by the Tribunal is just and reasonable,
and hence it needs no modification.
MACA 2594 of 2014 5
7. Now this Court iscalledupontoanswerwhetherthere
is any illegality, irregularity or impropriety in the impugned
award, warranting interference by this Court.
8. Heard learned counsel for the appellant and learned
counsel for the 2nd respondent-Insurer.
9. Learned counsel for the appellant would submit that
thecompensationawardedbytheTribunalisonthelowerside.
Moreover, the reduction of 7.5% from the total compensation
amount, for the reason that the appellant/claimant was not
havingvaliddrivinglicencetoridehismotorcycleatthetimeof
accident, is liable to be set aside, as there was no finding to
the effect that, he contributed towards the accident.
10. According to the appellant, he was a 38 year old
coolie, earning monthly income of Rs.6,000/-. But learned
Tribunal fixed his notionalincome@Rs.3,500alone.Hewould
rely on the decision Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited [AIR
2011SC2951],tosaythatacoolieworkerwaseligibletoget
MACA 2594 of 2014 6
his notional income fixed @ Rs.7,500/- in the year 2010. But
sincetheappellanthimselfwasclaiminghismonthlyincomeas
Rs.6,000/-,thisCourtisnotinclinedtofixhisnotionalincome,
exceedinghisclaim.So,thisCourtisinclinedtofixhisnotional
income @ Rs.6,000/- as claimed by him.
11. Learned Tribunal assessed loss of earning for four
months. The appellant was a coolie worker. He suffered
fracture of medial aspect of right patella, lacerated wound on
medialaspectofrightknee,laceratedwoundoveranterolateral
aspect of right kneejoint,contusionovercervicalspine,upper
dorsal spine, etc., and he was hospitalised for 11 days. He
suffered disability of 5% due to the injuries suffered on his
right patella. Considering these aspects, this Court is inclined
to take loss of income for five months. @ Rs.6,000/- per
month, he is entitled to get Rs.30,000/- (6,000x5). After
deducting Rs.14,000/- already awarded, the appellant is
entitled to get the balance amount of Rs.16,000/-.
12. Towards pain and suffering, this Court is inclined to
MACA 2594 of 2014 7
award Rs.7,000/- more considering the nature of injuries
suffered by the appellant, and the period of hospitalisation.
There is evidence to show that even after discharge, it was
difficult for him to squat and his right knee flexion was
reduced.
13. Towards bystander expenses, learned Tribunal
awarded only Rs.1,650/-. Since the accident was in the year
2010, this Court is inclined to award Rs.300/- per day for 11
days of hospitalisation, which will come to Rs.3,300/-. After
deductingRs.1,650/-alreadyawarded,heisentitledtogetthe
balance amount of Rs.1,650/-.
14. Towards extranourishment,learnedTribunalawarded
only Rs.1,500/-. Considering the period of hospitalisation,and
the period of rest after discharge, this Court is inclined to
award Rs.1,000/- more under the head 'extra nourishment'.
15.Towardstransportationexpenses,thisCourtisinclined
to award Rs.1,000/- more as he was hospitalised for11days,
and even after discharge, he had to attend regular review.
MACA 2594 of 2014 8
16. Towards permanent disability of 5%, the appellant is
entitled to get Rs.54,000/- (6,000x12x15x5/100) as we have
fixed his notional income @ Rs.6,000/- and on adopting the
correct multiplier of 15. After deducting Rs.33,600/- already
awarded, he is entitled to get the balance amount of
Rs.20,400/- under that head.
17. Towards loss of amenities, this Court is inclined to
award Rs.5,000/- more as he suffered fracture to his right
patella resulting in 5% disability, bywhich,hewasnotableto
squat properly and his right knee flexion was reduced.
18. Learned Tribunal had reduced 7.5% from the total
compensation amount of Rs.97,951/-, which comes to
Rs.7,346/-. The reason for such reduction was that, the
appellant had no driving licence to ride a motorcycle at the
timeofaccident.Sincetherewasnoevidenceorfindingtothe
effect that, the appellant contributed towards the accident,
thereisnojustificationforreducing7.5%fromthetotalaward
amount, which was actually due to the appellant. If the
MACA 2594 of 2014 9
appellant was not having a valid driving licence, he was liable
to be prosecuted under the Motor Vehicles Act, and learned
counsel for theappellantwouldsubmitthatPettyCaseNo.641
of 2010 was registered against the appellant. If at all he
pleaded guilty to that charge at the maximum he had to pay
the penalty only. Absence of driving licence cannot lead to an
inference that the appellant contributed towards the accident.
In the absence of any evidence to show that the appellant
contributed towards the accident, the reduction of 7.5% from
the total award amount cannotbejustifiedinanymanner.So,
that reduction made by the Tribunal is set aside and the
appellant is entitled to receive Rs.7,346/- reduced by the
Tribunal from the total award amount.
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.14,000/- Rs.30,000/- Rs.16,000/-
ain and
P Rs.18,000/- Rs.25,000/- Rs.7,000/-
suffering
ystander
B Rs.1,650/- Rs.3,300/- Rs.1,650/-
expenses
MACA 2594 of 2014 10
Extra nourishment Rs.1,500/- Rs.2,500/- Rs.1,000/-
ransportation
T Rs.1,000/- Rs.2,000/- Rs.1,000/-
expenses
ompensation for
C
permanent Rs.33,600/- Rs.54,000/- Rs.20,400/-
disability
Loss of amenities Rs.16,000/- Rs.21,000/- Rs.5,000/-
n setting aside
O
7.5% reduction, ... Rs.7,346/- Rs.7,346/-
the amount to be
awarded
Total Rs.59,396/-
19.Intheresult,theappellantisentitledtogetenhanced
compensation of Rs.59,396/-.
20. The 2nd respondent-Insurer [R3 in the OP(MV)] is
directed to deposit enhanced compensation of Rs.59,396/-
(Rupees Fifty Nine Thousand Three Hundred and Ninety Six
only),with8%interestperannum,fromthedateofpetitiontill
thedateofdeposit,beforetheMotorAccidentsClaimsTribunal,
Muvattupuzha, within a periodoftwomonthsfromthedateof
receipt of a copy of this judgment. Learned Tribunal shall
disburse that amount to the appellant after deducting his
MACA 2594 of 2014 11
liabilities, if any, towards tax, balance court fee, legal benefit
fund, etc.
21. The recovery ordered againstthe3rdrespondent[R4
in the OP(MV)] is retained.
The appeal is allowed to the extent as above, and no
order is made as to costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
