Kerala High Court

Vivek T.C vs The Regional Manager, National ... on 18 March, 2025

MACA Nos.259 of 2013 & 1958 of 2021
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                                                       2025:KER:23993

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
 TUESDAY, THE 18TH DAY OF MARCH 2025 / 27TH PHALGUNA, 1946
                       MACA NO. 259 OF 2013
       AGAINST THE AWARD DATED 09.10.2012 IN OP(MV) NO.115
OF   2009    OF   ADDITIONAL   MOTOR   ACCIDENT   CLAIMS   TRIBUNAL,
ERNAKULAM

APPELLANT/3RD RESPONDENT:

             NATIONAL INSURANCE COMPANY LIMITED
             KOCHI, NOW REPRESENTED BY ITS MANAGER,
             KOCHI REGIONAL OFFICE, OMANA BUILDING,
             M.G.ROAD, KOCHI-35.


             BY ADVS.
               SRI.MATHEWS JACOB (SR.)
               SRI.P.JACOB MATHEW



RESPONDENT/PETITIONER:

             VIVEK.T.C.
             S/O. CHANDRAN T.V., THEKKEPARAMBIL HOUSE,
             EROOR P.O., NADAMA VILLAGE, PIN-682 026.


             BY ADV
               SRI.V.A.OMANAKUTTAN


      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 18.03.2025, ALONG WITH MACA.1958/2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA Nos.259 of 2013 & 1958 of 2021
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                                                     2025:KER:23993



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
 TUESDAY, THE 18TH DAY OF MARCH 2025 / 27TH PHALGUNA, 1946
                      MACA NO. 1958 OF 2021
       AGAINST THE AWARD DATED 09.10.2012 IN OP(MV) NO.115
OF    2009      OF    ADDITIONAL       MOTOR   ACCIDENT    CLAIMS
TRIBUNAL,ERNAKULAM

APPELLANT/PETITIONER:

           VIVEK T.C.
           AGED 33 YEARS, S/O.CHANDRAN T.V.,
           THEKKEPARAMBIL HOUSE, EROOR DESOM, NADAMA
           VILLAGE, ERNAKULAM, PIN - 682 306.


           BY ADV
             SRI. V.A.OMANAKUTTAN


RESPONDENT/3RD RESPONDENT:

           THE REGIONAL MANAGER, NATIONAL INSURANCE CO.LTD.
           OMAN BUILDING, PADMA JUNCTION, ERNAKULAM.


           BY ADVS.
             SRI. MATHEWS JACOB (SR.)
             SRI. P.JACOB MATHEW



      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 18.03.2025, ALONG WITH MACA.259/2013, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA Nos.259 of 2013 & 1958 of 2021
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                                                             2025:KER:23993

                             JUDGMENT

Dated this the 18th day of March, 2025

The 3rd Respondent, insurer in O.P.(M.V.) No.115 of 2009 on

the file of the Additional Motor Accident Claims Tribunal, Ernakulam

is the appellant herein in MACA No.259 of 2013 and the original

petitioner in the above OP (MV) is the appellant in MACA No.1958 of

2021. (For the purpose of convenience, the parties are hereafter

referred to as per their rank before the Tribunal)

2. 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 12.04.2008.

According to the petitioner, on 12.04.2008 at about 8.40 a.m., while he

was riding pillion on a motorcycle ridden by the 1 st respondent along

Chottanikkara - Mulanthuruthy road, the said motorcycle hit against

another scooter bearing registration No. KL-07-L/285 ridden by one

Sudhi Thomas. As a result of the accident, the petitioner sustained

serious injuries.

3. The 1st respondent is the rider, the 2nd respondent is the

owner and 3rd respondent is the insurer of the motorcycle. According to MACA Nos.259 of 2013 & 1958 of 2021

2025:KER:23993

the petitioner, the accident occurred due to the negligence of the rider

of the motorcycle. The quantum of compensation claimed in the O.P. is

Rs.2,00,000/-.

4. The insurance company filed a written statement,

admitting the accident as well as policy, but disputing the negligence on

the part of the rider of the offending vehicle.

5. The evidence in the case consists of the oral testimony of

PW1 and documentary evidence Exts.A1 to A11. No evidence was

adduced by the respondents.

6. After evaluating the evidence on record, the Tribunal

found negligence on the part of the rider of the motorcycle, awarded a

total compensation of Rs.1,34,500/- and directed the insurer to pay the

same.

7. Aggrieved by the quantum of compensation awarded by

the Tribunal, both the original petitioner and 2nd Respondent, insurer

preferred these appeals.

8. Now the point that arises for consideration is the

following:

Whether the quantum of compensation awarded

by the Tribunal is just and reasonable? MACA Nos.259 of 2013 & 1958 of 2021

2025:KER:23993

9. Heard Sri. Omanakuttan V.A., the learned Counsel

appearing for the original petitioner and Sri.P. Jacob Mathew the

learned Standing Counsel appearing for the insurance company.

10. The Point: In this case the accident as well as valid

insurance policy of the offending vehicle are admitted. One of the

contentions raised by the learned counsel for the petitioner is regarding

the income of the petitioner as fixed by the Tribunal. According to him,

the petitioner was working as Hardware Computer mechanic, earning

Rs. 3000/- per month, the Tribunal fixed his monthly income as such at

Rs.3000/-.

11. As per the dictum laid down by the Hon'ble Supreme

Court in the decision in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the notional income of

a coolie, in the year 2008 will come to Rs.6,500/-.Therefore, the learned

counsel for the original petitioner prayed for fixing the notional income

of the petitioner at Rs.6500/-. The learned counsel for the insurer

would argue that the income fixed by the tribunal is reasonable. Since

the notional income of a coolie, in the year 2008 will come to

Rs.6,500/-, in order to award just and reasonable compensation, in the

light of a dictum laid down in the decision of the Hon'ble Supreme MACA Nos.259 of 2013 & 1958 of 2021

2025:KER:23993

Court in Ramachandrappa (supra), the notional income of the

petitioner is liable to be fixed as that of a coolie, at Rs.6,500/-.

12. In the accident the petitioner sustained the following

injuries:

1. Type II compound comminuted fracture both bones

(tibia and Fibula) right let.

2. Undisplaced fracture medial malleoulus right leg;

3. Lacerated wound onear, forehead and lip.

13. In this case the petitioner has not produced any disability

certificate and as such the petitioner is not entitled to get any

compensation on the head 'loss of disability'.

14. One of the arguments advanced by the learned Senior

Counsel appearing for the 3rd respondent is that the tribunal was not

justified in awarding a sum of Rs.80,000/- on the head expense for

treatment as it is revealed that more than Rs.80,000/- was received by

the petitioner from Medi-Claim policy. The tribunal also found that

the petitioner has received a sum of Rs.37,957/- and Rs.49,856/-

towards treatment expense from Medi-Claim policy. However, the

tribunal relying upon the decision of the learned Single Judge in

National Insurance Co. Vs. S. Bijumon and others [2011 (1) KHC 776] MACA Nos.259 of 2013 & 1958 of 2021

2025:KER:23993

held that even though the claimant received treatment expense from

Medi-Claim, he is eligible to get the said expense from the insurer.

15. The learned Senior Counsel relied upon the

decision of a Division Bench of this court in National Insurance

Company Ltd. v. Akber Badsha [2015 (4) KLT 442] in which the

Division Bench held that treatment expense received from Medi- Claim

policy has to be reckoned while fixing the quantum of compensation

payable to victims of motor vehicle accidents. In the above

circumstances, the tribunal was not justifiable in awarding a sum of

Rs.80,000/- towards treatment expenses and as such the above

Rs.80,000/- will be deducted from the compensation awarded to the

petitioner.

16. Towards loss of earning, the tribunal has awarded only

Rs.12,000/- being the income for 4 months @ Rs.3,000/-. The petitioner

sustained serious injuries in the accident including two fractures and

was treated as inpatient for 15 days. In the mean time he had

undergone 2 surgeries also. Because of the injuries sustained, the

percentage of disability suffered and the length of treatment undergone

by the petitioner, the petitioner might have lost income at least for a

period of 6 months. Therefore, towards 'loss of income' the petitioner is MACA Nos.259 of 2013 & 1958 of 2021

2025:KER:23993

entitled to get a sum of Rs. 39,000/- (6500 x 6 months).

17. Towards the head 'pain and sufferings', the Tribunal has

awarded Rs.25,000/-. Towards 'loss of amenities of life' Rs. 12,000 was

awarded and towards 'extra nourishment' Rs.1,000/- was awarded.

According to the learned counsel for the petitioner, the compensation

awarded on those heads are on the lower side.

18. The petitioner sustained serious injuries in the accident

including two fractures and was treated as inpatient for 15 days. In the

mean time he had undergone 2 surgeries also. Because of the injuries

sustained, the percentage of disability suffered and the length of

treatment undergone by the petitioner, I hold that the compensation

awarded by the Tribunal on the heads 'pain and sufferings', 'loss of

amenities of life' and 'extra nourishment' are on the lower side and

hence they are enhanced to Rs.40,000/-, Rs.30,000/- and Rs.3,000/-

respectively.

19. No change is required, in the amounts awarded on other

heads, as the compensation awarded on those heads appears to be just

and reasonable.

20. Therefore, the petitioners/appellants are entitled to get a

total compensation of Rs.1,16,500/-, as modified and recalculated MACA Nos.259 of 2013 & 1958 of 2021

2025:KER:23993

above and given in the table below, for easy reference:

Sl.

      No.           Head of Claim        Amount awarded    Amount Awarded in
                                         by Tribunal (in    Appeal (in Rs.)
                                              Rs.)
       1    Loss of earnings                 12,000             39,000
       2    Transportation expenses           1,000              1,000

       4    Extra nourishment                 1,000              3,000
       5    Expense for treatment            80,000               Nil
       6    Bystanders expenses               3,000              3,000
       7    Shock, pain and sufferings       25,000             40,000
       8    Loss of amenities and
                                             12,000             30,000
            enjoyment in life
            Total                           1,34,500/-         1,16,500/-


            Reduced Rs.18,000/-