Kerala High Court
Anand K.Nair @ Anandakuttan vs M/S.Modern Dairy And Ice Plant on 27 March, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
HE HONOURABLE MRS. JUSTICE SOPHY THOMAS
T
TH
WEDNESDAY, THE 27
DAY OF MARCH 2024 / 7TH CHAITHRA,
1946
MACA NO. 842 OF 2008
AGAINST THE AWARD DATED 28.11.2006 IN OPMV NO.749 OF 2001 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANT/PETITIONER:
NAND K.NAIR @ ANANDAKUTTAN
A
S/O.GOPALAKAIMAL, KAITHAPARAMBU,
THEKKEKARA,MANCOMPU,ALAPPUZHA.
Y ADVS.
B
SRI.S.SHANAVAS KHAN
SMT.S.INDU
RESPONDENTS/RESPONDENTS:
1
M/S.MODERN DAIRY AND ICE PLANT
HIRAPUR ROAD, CHALISGAON, JALGAON DIST.
2
SHEIK ISMAIL SHEIKNIJAM
CHALISGOAK, D.V.RAOD, PATNA.
3
THE MANAGER,
NATIONAL INSURANCE CO.LTD., ALAPPUZHA.
Y ADV.
B
SRI.SEBASTIAN VARGHESE(K/141/2000), SC, NATIONAL INSURANCE
CO. LTD.
THIS
MOTOR
ACCIDENT
CLAIMS
APPEAL HAVING BEEN
FINALLY
EARD
H ON
27.03.2024,
THE
COURT
ON
THE
SAME
DAY
DELIVERED
THE
FOLLOWING:
MACA 842 of 2008 2
J U D G M E N T
This appeal is at the instance of the petitioner in
OP(MV)No.749 of 2001, on the file of Motor Accidents Claims
Tribunal, Alappuzha, challenging the award on the ground of
inadequacy of compensation.
2. On 27.07.1998, at 8.30 p.m., while the petitioner was
travelling pillion in a motorcycle, through Bombay - Agra
National Highway atCarware,MH-19/J-771tankerlorrydriven
bythe2ndrespondentinarashandnegligentmanner,dashed
against the motorcycle, and he was thrown down, and
sustainedveryseriousinjuries.Hewasadmittedandtreatedat
Jairam Hospital, Nazik, from 28.07.1998 till 10.08.1998.
Thereafter, he returned to his native place at Alappuzha, and
he was admitted and treated at Medical College Hospital,
Alappuzha, and thereafter at Medical College Hospital,
Kottayam. He was hospitalised for 217 days in total. He
suffered disability of 25% due to the injuries suffered in the
MACA 842 of 2008 3
accident.HeapproachedtheTribunalclaimingcompensationof
Rs.8,00,000/-. But the Tribunal awarded only Rs.1,20,000/-,
and hence this appeal.
3. The 1st respondent was the owner of the offending
tanker lorry, 2nd respondent was its driver and the 3rd
respondent was its Insurer. Respondents 1 and 2remainedex
parte before the Tribunal. The 3rd respondent-Insurer entered
appearance, but denied the policy.
4. In theappeal,1strespondentwasservedwithnotice.
But none appeared. Though paper publication was effected
against the 2nd respondent, he also didn't appear to contest
the appeal. The 3rd respondent-Insurer appeared through
Adv.Sebastian Varghese and denied the policy.
5. Heard learned counsel for the appellant and learned
counsel for the 3rd respondent-Insurer.
6.NowthisCourtiscalledupontofindoutwhetherthere
MACA 842 of 2008 4
is any illegality, impropriety or irregularity in the impugned
award warranting interference by this Court.
7. As already stated, the 3rd respondent-Insurer is
denying the policy. Learned Tribunal found that the offending
vehicle was notinsuredwiththe3rdrespondentandso,ithas
no liability to indemnify the 1st respondent, or tocompensate
the petitioner. Respondents 1 and 2 were found liable, jointly
and severally, to pay the compensation awarded by the
Tribunal.
8.Learnedcounselfortheappellant/petitionerwasrelying
on Ext.A7 document, i.e., copy of details of information given
by the Deputy Regional Transport Officer, Jalgeon, regarding
the lorry bearing registration No.MH-19/J-0771. That
information was seen given to one Mr.Jayakumar on the basis
ofalettergivenbyhim. Ext.A7saysthatthesaidvehiclewas
insured with National Insurance Company. But the
appellant/petitioner failed to produce copy of the insurance
MACA 842 of 2008 5
policy. He neither took any steps to direct the 3rd
respondent-Insurer to produce copy of the policy, nor to
requestthe1strespondent-ownertoproducethepolicydetails.
LearnedTribunalrightlyfoundthatExt.A7documentcannotbe
accepted tofind thattheoffendingvehiclewasvalidlyinsured
with the 3rd respondent. This Court findsnoreasontodisturb
the finding of the Tribunal that the 3rd respondent was not
liabletoindemnifythe1strespondentsoastocompensatethe
appellant/petitioner. Respondents 1 and 2 are jointly and
severally liable to compensate the appellant/petitioner, as
rightly found by the learned Tribunal.
9. Now coming to the quantum ofcompensation,learned
counselfortheappellantwouldsubmitthattheappellantwasa
31 yearoldsupervisorworkinginacompanyinNazik,earning
monthly income of Rs.4,000/-. But learned Tribunal fixed his
monthly income notionally @ Rs.1,500/-. No documents were
producedbytheappellanttoprovehisjoborincome.Sincethe
accident was in the year 1998, notional income fixed @
MACA 842 of 2008 6
Rs.1,500/- per month seems to be quite reasonable, and this
Court also is accepting that income as his monthly income.
10. Learned Tribunal awarded Rs.9,000/- towards
compensation for loss of earning forsixmonths. Exts.A10to
A14documentswillshowthatthepetitionerhadsufferedhead
injury,fractureoftibia,fibula,subdurallefttemporalcontusion
andsmallhaematoma,dislocationofgreattoe,laceratedinjury
over left eyebrow, big toe removed, gross instability of right
knee, and malunited fracture of metatarsal of right foot.
Exts.A10 to A14 and A18 documents will show that he was
hospitalised for 217 days in total. So this Court is inclined to
take his loss of earning for a period of 12 months. @
Rs.1,500/- per month, he is entitled to get Rs.18,000/-. After
deducting Rs.9,000/- already paid, he is entitled to get the
balance amount of Rs.9,000/- towards loss of earning.
11. Towardspainandsuffering,learnedTribunalawarded
Rs.20,000/-. Consideringthenatureofinjuriessufferedbythe
MACA 842 of 2008 7
appellant as stated above, and also the period of
hospitalisation, this Court is inclined to award Rs.10,000/-
more towards pain and suffering.
12. Towards compensation for loss of amenities, learned
TribunalawardedRs.15,000/-. Ext.A26disabilitycertificatewill
show that the appellant was having limping on his right side,
bigtoeoftherightfootwasremoved,movementofrightankle
was restricted. There was instability of right knee due to
abnormal rotatory movement of right knee, and there was
tendency to fall down on walking fast and running. Moreover
squatting was not possible for him. The appellant was a 31
year old man, working in Nazik, duringtheperiodofaccident.
He suffered serious injuries, due to which he was hospitalized
for 217 days. He had suffered discomforts and disabilities as
stated above, due to the injuries suffered in the accident.
Considering that aspect, this Court is inclined to award
Rs.11,000/- more towards loss of amenities.
MACA 842 of 2008 8
13. The compensation awarded under all other heads
seems to be reasonable and hence needs no modification.
Head of claim Amount Amount ifference to
D
warded by
a awarded in be drawn as
the Tribunal appeal enhanced
compensation
oss of
L
earning Rs.9,000/- Rs.18,000/- Rs.9,000/-
ain and
P Rs.20,000/- Rs.30,000/- Rs.10,000/-
suffering
oss of
L Rs.15,000/- Rs.26,000/- Rs.11,000/-
amenities
Total Rs.30,000/-
14. In the result, the appellant is entitled to get
Rs.30,000/- (9,000 + 10,000 + 11,000) as enhanced
compensation.
15.Respondents1and2arejointlyandseverallyliableto
paytheenhancedcompensationtotheappellant.Respondents
1 and 2 are directedtodeposittheenhancedcompensationof
Rs.30,000/- (Rupees Thirty Thousand only) in the Bank
accountoftheappellantwithinterest@7.5%perannum,from
MACA 842 of 2008 9
the date of petition till the date of deposit, within a period of
two months from the date of receipt of a copy of this
judgment. The deposit must be in terms of the directives
issuedbythisCourtinCircularNo.3of2019dated06/09/2019
andclarifiedinO.M.No.D1/62475/2016dated07/11/2019after
deducting the liabilities, if any, of the appellant towards Tax,
balance court fee and legal benefit fund.
The appeal is allowed to the extent as above with
proportionate costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
