Kerala High Court
Dominic Joseph vs Bajaj Allianceinsurance Company ... on 3 June, 2025
2025:KER:38850
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 3RD DAY OF JUNE 2025 / 13TH JYAISHTA, 1947
MACA NO. 338 OF 2020
AGAINST THE AWARD DATED 10.07.2019 IN OPMV NO.324 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TALIPARAMBA
APPELLANT/PETITIONER:
DOMINIC JOSEPH
AGED 58 YEARS
S/O LATE VARKEY JOSEPH, MENONICKAL HOUSE,
THIMIRI AMSOM, ERUVATTI P.O., CHAPPARAPPADAVU VIA,
TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 571.
BY ADV SMT.M.R.JAYALATHA
RESPONDENT/3RD RESPONDENT:
BAJAJ ALLIANCE INSURANCE COMPANY LIMITED
REP BY ITS BRANCH MANAGER, 1ST FLOOR,
MUNICIPAL NO 2-1-1(1 TO 3), BOLOR B VILLAGE,
CHILIMBI, OPP. MORE SUPER-MARKET, DAKSHINA
KANNADA-575 006, (INSURER OF THE BOLERO CAR
KA19MB8445) POLICY NO OG-17-1702-1801-0000873.
BY ADV SRI.AKHIL K.MADHAV
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 03.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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MACA NO. 338 OF 2020
2
C.S.SUDHA, J.
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M.A.C.A. No.338 of 2020
----------------------------------------------------
Dated this the 3rd day of June 2025
JUDGMENT
This appeal has been filed under Section 173 of the Motor
Vehicles Act, 1988 (the Act) by the claim petitioner in O.P.(MV)
No.324/2017 on the file of the Motor Accidents Claims Tribunal,
Taliparamba, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 10/07/2019. The sole
respondent herein is the third respondent/insurer in the petition. In
this appeal, the parties and the documents will be referred to as
described in the original petition.
2. According to the claim petitioner, on 28/02/2017
at about 11:30 a.m., while he was walking through the road margin
at Pilathara, car bearing registration no.KL19MB8445 driven by the
second respondent in a rash and negligent manner knocked him
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down, as a result of which he sustained grievous injuries. The
incident occurred due to the rash and negligent driving of the
second respondent/driver of the offending vehicle. A sum of
₹5,00,000/- was claimed as compensation under various heads.
3. Though the first respondent/owner and the second
respondent/rider filed vakalath, they did not file any written
statement.
4. The third respondent/insurer filed written
statement admitting the existence of a valid policy in respect of the
offending vehicle. It was contended that the incident occurred due
to the negligence of the claim petitioner and that the amount
claimed was exorbitant.
5. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A10 and Ext.X1 were marked on
the side of the claim petitioner. No documentary evidence was
produced by the respondents.
6. The Tribunal on a consideration of the
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documentary evidence and after hearing both sides, found
negligence on the part of the second respondent/driver of the
offending vehicle resulting in the incident and hence awarded an
amount of ₹3,10,800/- together with interest @ 9% per annum from
the date of the petition till realisation along with proportionate
costs. Aggrieved by the Award, the claim petitioner has come up in
appeal.
7. The only point that arises for consideration in this
appeal is whether there is any infirmity in the findings of the
Tribunal calling for an interference by this Court.
8. Heard both sides
9. The award of compensation by the Tribunal under
the following heads are challenged by the claim petitioner -
Notional income
It is submitted by the learned counsel for the claim
petitioner that the claimant, a 56 year old man, was the proprietor of
Maya Coffee Works, Edakkome, when the incident occured on
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28/02/2017. Exts.A4 and A5 income tax returns were produced to
substantiate the claim of monthly income of ₹30,000/-. However,
the Tribunal, ignoring the same, fixed the notional income at
₹20,000/-, which, according to the learned counsel, is an infirmity
committed by the Tribunal. Per contra, it is submitted by the
learned counsel for the thrid respondent/insurer that the amount
fixed by the Tribunal is reasonable and that it does not require any
interference.
Exts.A4 and A5 income tax returns produced by the claim
petitioner has not been disproved or discredited. Therefore, taking
into account Exts.A4 and A5, the monthly income of the claim
petitioner can be fixed at ₹27,060/-.
Loss of earnings
It is pointed out that though an amount of ₹1,00,000/- was
claimed under this head, the Tribunal has granted an amount of
₹60,000/- which again is challenged. It is submitted by the learned
counsel for the claim petitioner that taking into account the injuries
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sustained, loss of income for a period of at least 6 months ought to
have been granted. Per contra, it is submitted by the learned
counsel for the third respondent/insurer that the period of 3 months
is quite reasonable and no modification is required to the same.
Ext.A3 discharge summary reveals that the following
injuries were sustained by the claim petitioner:
1) Type 2 open right lateral malleolus fracture.
2) Extensive lacerated injury on the right ankle.
3) Contusion on the chest."
The claim petitioner was hospitalized for a period of 13
days. Therefore, taking into account the nature of injuries and the
period of hospitalization undergone, in all probability, he might
have been unable to work for a period of 4 months. Therefore, he
can be granted compensation towards loss of earnings for a period
of 4 months which is ₹1,08,240/- (27,060 x 4).
Compensation for loss of amenities
Though no amount was claimed, the Tribunal has granted
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and amount of ₹10,000/-. According to the claim petitioner, in the
light of the injuries sustained, a reasonable enhancement is
necessary.
Taking into account the nature of injuries sustained, I find
that an amount of ₹15,000/- would be just and reasonable.
10. The impugned Award is modified to the following
extent:
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded by appeal
Tribunal
1. Loss of ₹1,00,000/- ₹60,000/- ₹1,08,240/-
earnings (20,000 x 3) (27,060 x 4)
2. Partial loss of Nil Nil Nil
earnings (No
Modification)
3. Transportation ₹32,000/- ₹32,150/- 32,150/-
charges (No
Modification)
4. Extra ₹6,000/- ₹2,000/- ₹2,000/-
nourishment (No
Modification)
5. Damages to ₹2,000/- ₹1,000/- ₹1,000/-
clothing and (No
articles Modification)
6. Medical ₹1,00,000/- ₹59,762/- ₹59,762/-
expenses (No
Modification)
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7. Bystander's Nil ₹7,800/- ₹7,800/-
expenses (600 x 13) (No
Modification)
8. Pain and ₹1,00,000/- ₹30,000/- ₹30,000/-
sufferings (No
Modification)
9. Compensation Nil ₹10,000/- ₹15,000/-
for loss of
amenities
10 Compensation ₹1,60,000/- ₹1,08,000/- ₹1,46,124/-
for continuing (20,000 x 12 x 9 (27,060 x 12 x
or permanent x 5/100) 9 x 5/100)
disability
11 Compensation Nil Nil Nil
for the partial (No
loss of earning Modification)
power
Total ₹5,00,000/- ₹3,10,712/- ₹4,02,076/-
rounded to
₹3,10,800/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹91,276/- (total
compensation ₹4,02,076/- that is, ₹3,10,800/ granted by the
Tribunal + ₹91,276/- granted in appeal) with interest at the rate of
8% per annum from the date of petition till date of realization and
proportionate costs. The third respondent/insurer is directed to
deposit the aforesaid amount before the Tribunal within a period of
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60 days from the date of receipt of a copy of the judgment. On
deposit of the amount, the Tribunal shall disburse the amount to the
claim petitioner at the earliest in accordance with law after making
deductions, if any.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
NP
