Kerala High Court

Shiyas N.P., S/O.Pareekutty vs Biju John on 20 January, 2025

                                               2025:KER:4106



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
  MONDAY, THE 20TH DAY OF JANUARY 2025 / 30TH POUSHA, 1946
                    MACA NO. 1829 OF 2016
AGAINST THE AWARD DATED 12.11.2015 IN OPMV NO.313 OF 2008 OF
         MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA


APPELLANT/PETITIONER :-

         SHIYAS N.P., S/O.PAREEKUTTY
         AGED 30 YEARS, NEDIYAM HOUSE,
         PATTAYAMKAVALA KARA, MUTHALAKODAM P.O.,
         KARIKODE VILLAGE,
         THODUPUZHA, PIN-685 605.

         BY ADVS.
         SRI.C.M.TOMY
         SRI.MATHEW SKARIA

RESPONDENTS/RESPONDENTS :-

    1    BIJU JOHN, VALLAMPLACKAL HOUSE, KORANCHIRA P.O.,
         PALAKKAD DISTRICT, PIN-678 684 (DRIVER)

    2    THE PRINCIPAL, DE PAUL HIGH SCHOOL,
         THODUPUZHA, PIN-685 584 (OWNER)

    3    THE NATIONAL INSURANCE COMPANY LTD
         REPREENTED BY ITS BRANCH MANAGER,
         KOLENCHERY, PIN-682 311 (INSURER)

    4    JIMMY PERUMBANANI
         MANAGING TRUSTEE, LOGOS CHARITABLE TRUST,
         ELSA COMPLEX, THODUPUZHA, PIN-685 584

         BY ADVS.
 MACA NO. 1829 OF 2016

                             2




                                               2025:KER:4106

          SRI.P.JACOB MATHEW
          SRI.PAULSON THOMAS
          SRI. MATHEWS JACOB -SR. SC

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 20.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 1829 OF 2016

                                         3


                                                                  2025:KER:4106

                                  JUDGMENT

The petitioner in O.P.(MV) No.313/2008 on the file of the Motor

Accidents Claims Tribunal, Thodupuzha, is the appellant. The respondents in

the O.P. are the respondents herein. The petitioner filed the above O.P. under

Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the

injuries sustained in a motor vehicle accident that occurred on 20.07.2006.

2. According to the petitioner, on 20.07.2006, when he was greasing

the bus bearing Registration No.KL-7AF/5034 lying below the chassis at

Maravettickal Tube Works, Mavumchuvadu, the bus moved forward, and as a

result of which he was crushed and sustained serious injuries.

3. The 1st respondent is the driver, the 2 nd respondent is the RC owner

and the 3rd respondent is its insurer of the offending vehicle.

4. The respondents admitted the accident and valid insurance policy,

but denied negligence on the part of the first respondent, the driver.

5. The evidence in the case consists of the documentary evidence

Exts.A1 to A11 on the side of the petitioner. Ext.B1 was marked on the side of

the respondents.

6. After evaluating the evidence on record, the Tribunal dismissed

the petition on the ground that the petitioner failed to prove the negligence on MACA NO. 1829 OF 2016

2025:KER:4106

the part of the 1st respondent.

7. Aggrieved by the above order of the Tribunal, the petitioner

preferred this appeal.

8. Now the point that arises for considerations are the following:

(i) Whether the accident occured due to the negligence of the 1 st respondent.

(ii) What is the just and reasonable compensation to be awarded to the petitioner.

9. Heard Sri.Mathew Skaria, the learned Counsel appearing for the

appellant, and Sri.Mathew Jacob, the learned Standing Counsel for the

insurance company.

10. Point No.1 The fact that at the time of the accident, the

petitioner was greasing the bus bearing Registration No.KL-7AF/5034 lying

below the chassis at Maravettickal Tube Works, Mavumchuvadu, is not in

dispute. The contention taken by the learned counsel for the 3 rd respondent is

that there was no negligence on the part of the 1st respondent.

11. On the other hand, the learned counsel for the petitioner would

argue that the accident occurred due to the negligence of the 1st respondent in

not taking care and caution while parking the vehicle for the purpose of

applying grease.

MACA NO. 1829 OF 2016

2025:KER:4106

12. In this case, the petitioner produced Exts.A1 to A3 documents to

prove the negligence on the part of the 1st respondent. Ext.A1 is the copy of FIR

in Crime No.412 of 2006 of Thodupuzha Police Station. Ext.A2 is the copy of

FIS and Ex.A3 is the copy of the final report in the above crime. It is true that in

the final report, nothing has been mentioned about the negligence on the part of

the 1st respondent, and it is stated that the accident occurred somehow due to

malfunctioning of the jack lever which slipped accidentally. However, in

Ext.A2 FI statement, the petitioner has given statement to the effect that the 1 st

respondent was the driver of the above bus and it was he who parked the bus in

front of the workshop for the purpose of effecting repairs. It was at that time,

the petitioner went below the chassis and applied grease. If the 1 st respondent

has taken due care and caution expected from a driver, to see that the bus does

not move when the petitioner went below the chassis for applying grease, the

accident would not have happened. In the above circumstances, from Exts.A1

to A3, it can be safely concluded that the accident occurred due to the

negligence of the 1st respondent. Therefore, the Tribunal was not justified in

dismissing the petition on the ground that the petitioner failed to prove the

negligence on the part of the 1st respondent. Point No.1 answered accordingly.

13. Point No.2:- Considering the fact that this accident occurred in

the year 2006, it will be doing injustice to the petitioner if the matter is MACA NO. 1829 OF 2016

2025:KER:4106

remanded back to the Tribunal. Therefore, I am inclined to dispose of the matter

here itself.

14. The petitioner was an employee in a workshop at the time of the

accident. He was aged 20 years. He claimed his income in the petition as

Rs.3,200/-. However, he has not adduced any evidence to prove the income as

claimed in the petition. In the above circumstances, by relying upon the dictum

laid down by the Supreme Court in Ramachandrappa v. Royal Sundaram

Alliance Insurance Company Limited [(2011) 13 SCC 236], the notional

income of the petitioner is liable to be fixed at Rs.5,500/-, as that of a coolie.

15. In the accident, he sustained the following injuries :-

"Traumatic rupture of left hemidiaphragm with paraplegia, laprotomy + repair of diaphragamatic rupture. He needs decompression and stabilisation of L2 dislocation."

16. Ext.A9 is the disability certificate issued by the Medical Board

constituted by the Superintendent, Taluk Head Quarters Hospital, Thodupuzha

showing that his permanent physical disability is 23%. I do not find any

grounds to disbelieve Ext.A9 and as such, his permanent physical disability is

fixed at 23%.

17. Since the petitioner was aged 20 years on the date of the accident, MACA NO. 1829 OF 2016

2025:KER:4106

40% of the income is liable to be added towards future prospects, and the

multiplier to be applied is 18. Therefore, the compensation for loss of disability

will come to Rs.3,82,536/-.

18. Ext.A5 treatment certificate issued by the Medical Trust Hospital,

Ernakulam shows that the petitioner sustained injuries with paraplegia (L2

fracture dislocation) and traumatic rupture of left hemidiaphragm. He

underwent a laprotomy + repair of diaphragmetic rupture. It also stated that he

needs decompression and stabilization of L2 fracture dislocation.

19. Considering the nature of injuries sustained by the petitioner and

percentage of disability suffered by him, I hold that towards loss of earning, he

is entitled to notional income for a period of 6 months. Therefore, towards loss

of earnings, he is entitled to get a compensation of Rs.33,000/- (5,500x6).

20. Considering the nature of injuries sustained by the petitioner and

percentage of disability suffered by him, I hold that towards pain and suffering,

he is entitled to get a compensation of Rs.75,000/-.

21. Considering the nature of injuries sustained by the petitioner and

percentage of disability suffered by him, I hold that towards loss of amenities,

he is entitled to get a compensation of Rs.35,000/-.

22. Considering the nature of injuries sustained by the petitioner and

percentage of disability suffered by him, I hold that towards extra nourishment, MACA NO. 1829 OF 2016

2025:KER:4106

he is entitled to get a compensation of Rs.10,000/-.

23. Considering the nature of injuries sustained by the petitioner and

percentage of disability suffered by him, I hold that towards bystander

expenses, he is entitled to get a compensation of Rs.5,000/-.

24. Considering the nature of injuries sustained by the petitioner and

percentage of disability suffered by him, I hold that towards transport to

hospital, he is entitled to get a compensation of Rs.2,000/-.

25. Considering the nature of injuries sustained by the petitioner and

percentage of disability suffered by him, I hold that towards 'damage to

clothing', he is entitled to get a compensation of Rs.1,000/-.

26. The petitioner produced Medical Bills worth Rs.2,76,419/- and

hence he is entitled to get a sum of Rs.2,76,419/- towards medical expenses.

27. Therefore, the petitioner/appellant is entitled to get a total

compensation of Rs.8,19,955/-, as modified and recalculated above and given in

the table below, for easy reference.

Sl. No. Head of claim Amount given in appeal (Rs.)

1 Loss of earnings 33,000 2 Pain and sufferings 75,000 3 Loss of amenities 35,000 4 Bystander expenses 5,000 5 Extra nourishment charges 10000 MACA NO. 1829 OF 2016

2025:KER:4106

6 Transportation charges 2000 7 Medical treatment charges 2,76,419 8 Compensation for permanent 3,82,536 disability

9 Damage to clothing 1000 Total 8,19,955

28. In the result, this Appeal is allowed in part, and the 3 rd respondent is

directed to deposit a total compensation of Rs.8,19,955/- (Rupees Eight Lakhs

Nineteen Thousand Nine Hundred and Fifty Five Only), along with interest @ 8%

per annum from the date of the petition till realisation, with proportionate costs,

within a period of two months from today.

29. On depositing the aforesaid amount, the Tribunal shall disburse the

entire amount to the petitioner, excluding court fee payable, if any, without delay, as

per rules.

Sd/-

C. PRATHEEP KUMAR, JUDGE SMA MACA NO. 1829 OF 2016

2025:KER:4106

PETITIONER ANNEXURES :-

Annexure 1          Draft Paper Publication

Annexure            DRAFT PAPER PUBLICATION

Annexure I          Paper publication of notice to R1 and R4
                    in Mangalam Malayalam Daily dated 01-12-
                    2023 in Trissur Edition.

Annexure II         Full pages of Thrissur Edition of Mangalam
                    Malayalam Daily dated 01-12-2023

Annexure III        Paper publication of notice to R1 and R4
                    published in Mangalam Malayalam Daily of
                    Idukki Edition dated 01-12-2023

Annexure IV         Full pages of Idukki Edition of Mangalam
                    Malayalam    daily     dated    01-12-2023
                    containing the notice to R1 and R4