Ajikumar G v Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943 MACA NO. 2650 OF 2010** **AGAINST THE AWARDT IN OP(MV)NO.730/2006 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,KOLLAM, KOLLAM** **APPELLANT/PETITIONER:** **AJIKUMAR.G, KARIYATHARA, KANNIMEL CHERRY, KAVANADU PO, KOLLAM.** **BY ADV SRI. K.SIJU** ## **RESPONDENT/RESPONDENT NO.6:** **THE ORIENTAL INSURANCE CO.LTD., KADAPPAKADA, KOLLAM.-691001** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2650 of 2010 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No. 2650 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV)No.730 of 2006 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondent in the appeal – the Oriental Insurance Co. Ltd., - was the respondent 3 and 6 before the Tribunal. As the said insurance company had admitted the insurance policy, respondents 1, 2, 4 and 5 were not impleaded as respondents in the appeal. The parties are, for the sake of convenience, wherever the context so requires are referred to as per their status in the claim petition, 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are : on MACA.No.2650 of 2010 **==> picture [7 x 9] intentionally omitted <==** 14.08.2005 while the petitioner was travelling pillion on motorcycle bearing registration No.KL 02/V/4441 from Ramankulangara – Maruthady, a Mini Lorry bearing registration No.KL 2U/2323 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner hit on the vehicle of the petitioner. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The 4[th] and 5[th] respondents before the Tribunal were the owner and rider of the motorcycle on which the petitioner was riding pillion. The petitioner was a Headload worker and earning a monthly income of Rs.7,000/-. The petitioner sustained serious injuries including a fracture on the right orbit lateral vectus and fracture on anterior and posterior lateral medial wall of the right maxillaries. The petitioner was treated at the Medical College Hospital, MACA.No.2650 of 2010 _4_ The claimed a Thiruvananthapuram. petitioner compensation of Rs.5,00,000/- from the respondents. 3. The respondents 1, 2, 4 and 5 did not contest the proceedings and were set ex-parte. 4. The respondents 3 and 6 – insurance company - admitted that the offending vehicle had a valid insurance policy, but denied negligence on the part of the 2[nd] respondent. 5. The petitioner marked Exts.A1 to A9 series in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition filed by the appellant, in part, by permitting the petitioner to realise an amount of Rs.77,006/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. 7. Dissatisfied with the quantum of MACA.No.2650 of 2010 _5_ compensation awarded by the Tribunal, the petitioner/appellant is in appeal. 8. Heard the learned Counsel appearing for the appellant/petitioner and the learned Counsel appearing for the 3[rd] and 6[th] respondents. 9. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Ext.A6 final report filed by the police after investigation substantiates that the accident occurred on account of the negligence on part of the 2[nd] respondent - the driver of the offending vehicle. Undisputedly, the 1[st] respondent was the owner of the offending vehicle and the 3[rd] respondent was the insurer of the vehicle. Therefore, the 3[rd] respondent is liable to indemnify the 1[st] respondent of his liability MACA.No.2650 of 2010 _6_ to pay compensation on account of the accident. ## **Notional income** 11. The appellant had claimed that he was a Headload worker earning a monthly income of Rs.7,000/- per month. The Tribunal fixed the notional income of the appellant at Rs.5,000/- per month. 12. In the light of the law laid down by the Honourable Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ], I find that the fixation of the notional income of the appellant is correct. ## **Loss of earnings** 13. It is proved by Ext.A3 wound certificate that the appellant had sustained a fracture on the right orbit lateral vectus and fracture on anterior and posterior lateral medial wall of right maxillaries. He MACA.No.2650 of 2010 _7_ was treated as an in-patient for a period of 36 days and was indisposed for a period of six months. However, the Tribunal awarded only an amount of Rs.5,000/- as compensation for 'loss of earnings', eventhough, the appellant had claimed an amount of Rs.30,000/- under the said head. 14. In the light of the fact that the appellant was indisposed for a period of six months and his notional income was fixed at Rs.5,000/-, it was only appropriate for the Tribunal to have awarded Rs.30,000/- as claimed for in the claim petition. Hence, I enhance the compensation under the head 'loss of earnings' by a further amount of Rs.25,000/- ## **Byestander expenses** 15. Although, the appellant was treated as an inpatient in the Medical College Hospital, Thiruvananthapuram for a period of 35 days, the MACA.No.2650 of 2010 _8_ Tribunal only awarded an amount of Rs.100/- per day, i.e., Rs.3,500/-, which according to me is on the lower side. Hence, I re-fix the compensation under the head 'byestander expenses' at Rs.200/- per day for a period of 35 days, i.e., an amount of Rs.7,000/-, which is an enhancement by Rs.3,500/- 16. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 17. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decision, I am of the opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above, that is by a further amount of Rs.28,500/- namely, Rs.25,000/- towards 'loss of earnings' and Rs.3,500/towards 'bye-stander expenses'. MACA.No.2650 of 2010 _9_ In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.28,500/- with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit, after deducting 299 days, that is the period of delay in preferring the appeal, as ordered by this Court on 30.03.2021 in C.M.Appl.No.3465 of 2010, and proportionate costs. The respondent/insurance company shall deposit the enhanced compensation awarded in this appeal with interest and proportionate before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. **Sd/- C.S.DIAS,JUDGE** dlk 12.07.2021