Kerala High Court

Binu vs Managing Director, M/S. Cargomar (P) ... on 25 October, 2024

                                                     2024:KER:81158
MACA No.203/2018
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             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

         THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

     FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946

                       MACA NO. 203 OF 2018

         OPMV NO.159 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,

                             ATTINGAL

APPELLANT/APPLICANT:

          BINU, S/O. RAGHAVAN, PULLIAMKUTTINMEL HOUSE,
          ARUNNUTTIMANGALAM, KADUTHURUTHI P.O., KOTTAYAM
          DISTRICT.

          BY ADV SRI.R.T.PRADEEP


RESPONDENTS/RESPONDENTS:

    1     MANAGING DIRECTOR, M/S. CARGOMAR (P) LTD.
          M/S CARAGOMAR (P) LTD., 36/1, MUNIASAMYPURAM,
          KAMARAJSALAI ROAD, TUTICORINE, TAKILNADU - 628001.

    2     THE MANAGER
          NEW INDIA ASSURANCE CO. LTD., DB, KHONA BUILDING, 5TH
          MAIN ROAD OPP. D.L.B OFFICE, W/ ISLAND, COCHIN -682004.

          BY ADVS.
          SRI.VIPIN P.VARGHESE
          SRI.ADARSH MATHEW
          SMT. DHANYA T MALLAR


OTHER PRESENT:

          SRI. P. JACOB MATHEW -SC


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 25.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                                     2024:KER:81158
MACA No.203/2018
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                                 JUDGMENT

This appeal is filed by the claimant in OP(MV) No.159 of 2009

on the file of the Motor Accidents Claims Tribunal, Attingal. The

respondents herein were the respondents before the tribunal.

2. The case of the appellant/claimant is that on

19.12.2007, while he was standing in the front of the AJ Hospital,

Kazhakuttom on the national highway, a lorry bearing Reg.No.TN-69/K-

0049 owned by the first respondent came from behind and knocked him

down, whereby he sustained serious injuries. He approached the

tribunal claiming a total compensation of ₹2,50,000/-.

3. The first respondent remained ex parte before the

tribunal. The respondent insurer filed a written statement, admitting the

policy coverage for the offending vehicle, but disputing the liability and

quantum of compensation claimed. Before the tribunal, Exts.A1 to A5

were marked on the side of the appellant/claimant and Ext.X1 series as

court exhibit. No evidence was adduced by the respondents. The

tribunal, after analysing the pleadings and materials on record, held

that the accident took place on account of the negligence of the driver

of the offending vehicle and awarded a sum of ₹63,960/- as

compensation under different heads against the second respondent 2024:KER:81158

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being the insurer. Dissatisfied with the quantum of compensation

awarded by the tribunal, the claimant has come up in appeal.

4. I have heard the learned counsel for the appellant and

the learned Standing Counsel for the respondent insurer.

5. The learned counsel for the appellant claims

enhancement under the following heads:

5.1. Notional income - The learned counsel for the appellant

submits that though the appellant, who was a cook in a hotel, claimed

that he was earning ₹9,000/- per month, the tribunal has fixed the

notional monthly income at ₹3,000/-. It is seen that no document was

produced by the appellant to prove income. However, as per the

judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Ltd. [(2011) 13 SCC 236], the notional monthly

income of the appellant ought to have been fixed at ₹6,000/-.

Accordingly, following the judgment in Ramachandrappa (supra), I deem

it appropriate to fix the notional monthly income of the appellant at

₹6,000/-.

5.2. Loss of earnings - The learning counsel for the

appellant submits that due to the injuries sustained in the accident, the

appellant could not go for work for almost six months, however, the 2024:KER:81158

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tribunal awarded compensation towards loss of earnings only for a

period of three months. Considering the facts of the case, I am of the

opinion a period of six months can be taken for awarding compensation

under the afore head. Since the notional monthly income of the

appellant is refixed at ₹6,000/-, compensation towards loss of earnings

for a period of six months will come to ₹36,000/-. Thus, the appellant will

be entitled to get an additional compensation of ₹27,000/- over and

above the compensation of ₹9,000/- already awarded by the tribunal.

5.3. Pain and suffering - The learned counsel for the

appellant submits that though the appellant claimed ₹30,000/- towards

pain and suffering, the tribunal awarded only ₹10,000/-. Considering the

injuries sustained by him and the sufferings that he had undergone, I

am inclined to grant an amount of ₹20,000/- to the appellant as total

compensation towards pain and suffering. Thus, the appellant will be

entitled to get an additional amount of ₹10,000/- as compensation

towards pain and suffering.

5.4. Permanent disability - The learned counsel for the

appellant submits that though Ext.A4 disability certificate issued by the

Additional Professor, Orthopedics Department, Government Medical

College, Thiruvananthapuram, reveals that the appellant sustained a

permanent disability of 14%, it was reduced by the tribunal to 4% while 2024:KER:81158

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assessing compensation. This reasoning of the tribunal does not appear

to be acceptable in view of the judgments of this Court in Manikantan G.

v. K.Janardhanan Nair [2021(5) KHC 305] and Rajkumar v. Ajay Kumar

[2011 (1) KLT 620 SC]. Therefore, I deem it appropriate to consider

14% disability, as assessed in Ext.A4 disability certificate, for the

purpose of calculating compensation. Thus, following the judgments in

National Insurance Co.Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)] and

Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], the

appellant will be entitled to get a total compensation of ₹1,51,200/-

(6000 x 12 x 15 x 14%) towards permanent disability. Hence, there will

be an additional amount of ₹1,29,600/- under the head of permanent

disability.

5.5. Loss of amenities - Though the appellant claimed an

amount of ₹40,000/- under this head, the tribunal awarded only an

amount of ₹6,000/-, which, according to the appellant, is on the lower

side. Considering the fact that the appellant was aged only 36 years at

the time of accident and considering the loss of enjoyment of life's

pleasures, I deem it appropriate to award a total compensation of

₹20,000/- towards loss of amenities. Thus, the appellant will be entitled

to get an additional amount of ₹14,000/- towards loss of amenities.

6. Though the appellant claimed enhancement of 2024:KER:81158

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compensation under other heads, on a perusal of the records available, I

am not inclined to interfere with the compensation awarded by the

tribunal under other heads since it appears to be just and reasonable.

Thus, the impugned award of the tribunal is modified as follows:

Sl.

 No.     Head of Claim     Amount      Amount      Modified       Total
                           claimed     awarded    in appeal    compensation
                             (in ₹)     by the       (in ₹)       (in ₹)
                                       tribunal
                                         (in ₹)
1.     Loss of earnings     72000        9000      27000          36000
2.     Transport to          3000        1500                      1500
       hospital
3.     Extra nourishment    3000        1000                       1000

       clothing
5.     Medical expenses     50000       13760                     13760

       expenses
7.     Future treatment     10000
8.     Pain and             30000       10000      10000          20000
       sufferings
9.     Disability           10000       21600      129600         151200
10.    Loss of amenities    40000        6000       14000          20000
       Total               347000       63960      180600         244560

Accordingly, the appeal is allowed in part and the appellant is

awarded an additional compensation of ₹1,80,600/- (Rupees one lakh

eighty thousand and six hundred only) over and above the compensation

awarded by the tribunal with interest @ 8% per annum from the date of

petition till realization and proportionate costs. The respondent insurer 2024:KER:81158

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shall deposit the said amount together with interest and costs within a

period of two months from the date of receipt of a certified copy of this

judgment. The appellant shall furnish copies of the PAN Card,

AADHAAR Card and bank details before the respondent insurer within a

period of one month so as to enable the insurance company to make the

deposit as ordered above. In case of failure to furnish details as above, it

shall be open for the insurance company to deposit the said amount

before the tribunal. Upon such deposit being made, the entire amount

shall be disbursed to the appellant at the earliest in accordance with

law. However, it is made clear that the enhanced compensation will not

carry interest for the period of delay of 234 days in filing the appeal.