Kerala High Court
Bhanumathi.O.P vs Akshay.V on 13 January, 2025
Author: V.G.Arun
Bench: V.G.Arun
MACA.No.1434/2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 13TH DAY OF JANUARY 2025 / 23RD POUSHA, 1946
MACA NO. 1434 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 19.12.2018 IN OPMV
NO.435 OF 2017 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - I, KASARAGOD / I ADDITIONAL MACT, KASARAGODE
APPELLANTS:
1 BHANUMATHI.O.P
AGED 76 YEARS
W/O LATE CHATHUKKUTTY, R/AT NEAR GOVERNMENT ICE
PLANT,BEACH ROAD,ADKATHBAIL, KASARAGOD.
2 OMANA.R.P,
AGED 47 YEARS
D/O LATE CHATHUKKUTTY,R/AT NEAR GOVERNMENT ICE
PLANT,BEACH ROAD, ADKATHBAIL,KASARAGOD.
3 MINI,
AGED 45 YEARS
D/O LATE CHATHUKKUTTY,R/AT NEAR GOVERNMENT ICE
PLANT,S/O LATE CHATHUKUTTY,R/AT NEAR GOVERNMENT
ICE PLANT,BEACH ROAD,ADKATHBAIL, KASARAGOD.
MACA.No.1434/2019
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4 SAI.V,
AGED 44 YEARS
S/O LATE CHATHUKKUTTY,R/AT NEAR GOVERNMENT ICE
PLANT,BEACH ROAD, ADKATHBAIL,KASARAGOD.
BY ADV S.JIJI
RESPONDENTS:
1 AKSHAY.V
S/O ANILKUMAR,R/AT SNEHADEEPAM,MAJAL, MOGRAL
PUTHUR POST AND VILLAGE,KASARAGOD DISTRICT-
671324.
2 ANILKUMAR PANIKKAN,
S/O ACHUTHAN,SNEHADEEPAM, SOUHRUTHA
NAGAR,MAJAL,MOGRALPUTHUR POST, KASARAGOD-671124.
3 THE BRANCH MANAGER,
NATIONAL INSURANCE CO.LTD,HIGH LANE
PLAZA,M.G.ROAD,KASARAGOD-671121.
BY ADVS.
SRI.M.SASINDRAN
SRI.N.S.NAJEEB
OTHER PRESENT:
SRI. N.S. NAJEEB FOR R3.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 25.06.2024, THE COURT ON 13.01.2025 DELIVERED THE
FOLLOWING:
MACA.No.1434/2019
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V.G.ARUN, J
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MACA No.1434 of 2019
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Dated this the 13th day of January, 2025
JUDGMENT
Appellants are the legal heirs of Chathukutty, the original
petitioner in O.P.(M.V) No.435 of 2017 of theAdditional Motor
Accidents Claims Tribunal-I, Kasaragod. The facts, essential
for deciding the appeal are as under;
2. The accident occurred on 13.11.2016 at 11.30 am,
when the motor cycle ridden by the 1st respondent in a rash and
negligent manner hit Chathukutty, resulting in the following
injury;
'Compound fracture of both bones of right leg upper 3rd '.
He was treated at the Carewell Hospital, Kasaragod as
inpatient from 13.11.2016 to 19.11.2016.
3.Chathukutty was a retired Court Keeper and was aged
75 years at the time of accident. In the original petition, he
claimed to be earning Rs.16,000/- per month and sought
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compensation of Rs.4,00,000/-. Pending the original petition,
Chathukutty died on 27.06.2018. Thereupon, the appellants
got themselves impleaded as additional petitioners 2 to 5. By
the impugned award, the Tribunal granted only Rs.75,609/- as
compensation with interest at the rate of 9% per annum from
the date of petition. Hence, this appeal.
4.Learned Counsel for the appellants contended that the
Tribunal committed gross illegality by granting only Rs.30,000/-
towards pain and suffering and Rs.3,500/- towards bystanders
expenses. Placing reliance of the decision in Raju Sebastian
v. United India Insurance Co.Ltd. [2021 (5) KHC 662], it is
contended that eventhough the petitioner was a retired person,
he was entitled to compensation for loss of earnings.
5.Learned counsel for the insurance company contended
that just and fair compensation was granted by the Tribunal
and hence, the award warrants no interference.
6.This Court finds merit in the contention that considering
the nature of injury suffered and the advanced age of the
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original petitioner, he would have undergone substantial pain
and suffering. Compound fracture of both bones of right leg
upper 3rd makes walking extremely painful for the injured.
Based on the above factors, this Court finds Rs.50,000/- to be
just and fair compensation for pain and suffering. The injury
would have also compelled the injured to depend on a bystander
for attending his daily needs at least for a period of three
months. As such, the award of only Rs.3500/- towards
bystanders expenses is unjustified. The compensation under
that head is hence re-fixed as Rs.27,000/- (Rs.300x90 days).
7. The contention that, in spite of being a pensioner,
Chathukutty was entitled for compensation towards loss of
earning cannot be countenanced for the reason that, other than
raising such a claim, no supporting material was produced to
prove that the petitioner was earning any income other than his
pension. Moreover, the fact that the petitioner was aged 75 also
assumes relevance. In Raju Sebastian (supra), the accident
had occurred while the claimant was working as a Draftsman in
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the Kerala Water Authority and was aged only 50 at the time of
accident. Based on factors like nature of employment,
educational qualifications as well as experience of the claimant,
this Court came to the conclusion that the claimant would have
earned income other than pension after retirement. The factual
matrix in the case at hand being entirely different, rejection of
the claim for loss of earning warrants no interference.
8. In the result, the appeal is allowed as under;
The compensation for pain and suffering is enhanced from
Rs.30,000/- to Rs.50,000/- and for bystanders' expenses, from
Rs.3,500/- to Rs.27,000/-. Thus, the petitioner is found entitled
for enhanced compensation of Rs.43,500/-.
The amount granted towards enhanced compensation shall
be paid to the appellants within three months, with interest @
9% from the date of petition.
sd/-
V.G.ARUN, JUDGE
sj
