Ambika v. Jiju Louis and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939 MACA.No. 3271 of 2014 OP(MV) 101/2011 of MACT MUVATTUPUZHA DATED 03-07-2014 APPELLANT/PETITIONER AMBIKA W/O. CHANDRAN, THONARKUZHY, KOKKAPPILLY, VENNIKULAM, THIRUVANIYOOR VILLAGE. BY ADVS.SRI.T.K.KOSHY SRI.ABE RAJAN RESPONDENTS/RESPONDENTS 1 TO 4: ## 1. JIJU LOUIS ONATTU HOUSE, PERRUMBALLOOR.P.O., PERUMBALLOOR SOUTH, ARAKKUZHA-686 673. 2. THE NEW INDIA ASSURANCE CO. LTD., MUVATTUPUZHA-686 661. 3. CHANDRAN PRAMESWARAN, THONARKUZHY HOUSE, KOKKAPPILLY, VENNIKULAM, THIRUVANIYOOR VILLAGE, PIN-682308. 4. THE UNITED INDIA INSURANCE CO. LTD., VETTUKATTIL BUILDINGS, M.G.ROAD, JOSE JUNCTION, ERNAKULAM-682011. R4 BY ADV. SRI.S.ARUN RAJ R2 BY ADV. SMT.P.K.SANTHAMMA BY SRI.JOHN JOSEPH VETTIKAD BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2018, ALONG WITH M.A.C.A.3280 & 3406 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## A.M.BABU, J. - - - - - - - M.A.C.A.Nos.3271, 3280 & 3406 of 2014 - - - - - - - - - Dated : 14[th] March, 2018 - - - - - - - - - - - - - - - ## JUDGMENT - 1.It was on 3.10.2010 the accident. It was a collision between a motorbike and an autorikshaw. The passengers on the motorbike claimed compensation. They are the father, mother and son. The autorikshaw was insured with the 2[nd] respondent. The tribunal awarded compensation to each claimant. They are not satisfied with the quantum. Hence are they in appeal. - 2.Heard Sri.T.K.Koshy and Smt.P.K.Santhamma, the learned counsel for the appellants and the 2[nd] respondent respectively. - 3.The tribunal found the driver of the autorikshaw rash and negligent. It was also found that the rider of the motor cycle contributed to the accident. Therefore in all the cases the respective claimants were denied 25% of the total compensation fixed. In the case of the biker ## **MACA.Nos.3271, 3280 & 3406/2014** **==> picture [7 x 9] intentionally omitted <==** there was a further deduction of 7.5% for having violated a statutory provision. The learned counsel for the appellants assailed those findings of the tribunal. The learned counsel for the 2[nd] respondent supported those findings. - 4.I am afraid, I am unable to agree with the tribunal. 25% of the compensation was denied to each claimant on the ground that three persons travelled on a bike. Three persons travelling on a two-wheeler is prohibitted under Sec.128 of the Motor Vehicles Act, but it cannot have any nexus with the accident unless it is positively proved. There is no evidence whatsoever to find that the presence of the third passenger on the bike contributed to the accident in any manner. Therefore the denial of 25% of the compensation is liable to be set aside. I do it. - 5.There was an extra deduction of 7.5% from the compensation found eligible to the rider of the bike. His licence expired on 11.8.2010. The **MACA.Nos.3271, 3280 & 3406/2014** 3 accident was on 3.10.2010. He was not holding a driving licence on the date of the accident. But he was not a person who did not know to ride a bike. He had a licence which expired a couple of months before the accident. Driving a vehicle without a valid licence is an offence. If the driver was a person who did not at all know to drive the vehicle, there could be some logic in finding contributory negligence on him. That was not the case in the present case. Simply because a road rule was violated by the biker, he cannot be held to have contributed to the accident. The denial of compensation to the extent of 7.5% shall also be liable to be set aside. Hence set aside. - 6.The rider of the bike, Chandran by name, was a carpenter. He was 49 years old at the time of the accident. He sustained serious injuries including fractures. He was assessed to have a disability of 12%. The assessment was made by the medical board attached to the general hospital, Muvattupuzha. The tribunal accepted the disability assessed by 4 ## **MACA.Nos.3271, 3280 & 3406/2014** the medical board. - 7.Chandran claimed that he had a monthly income of Rs 8,000/-. The tribunal did not accept the said claim. The tribunal fixed a notional income of Rs 4000/- per month. The accident was in 2010. I do not consider a monthly income of Rs 8,000/- out of the reach of a carpenter in 2010. The claim of Chandran was reasonable. I do not find any reason to reduce the monthly income of Chandran. - 8.Chandran sustained fracture of right humerus and extensor tendon injury with fracture head of middle phalanx of right index finger. He was treated as inpatient in a hospital for 22 days. Considering the injuries he had, I find it appropriate to enhance the compensation for pain and sufferings by Rs 5,000/-. - 9.Chandran had a fracture on the right humerus and on the middle index finger, right. Being a carpenter, he might not have been able to do his ## **MACA.Nos.3271, 3280 & 3406/2014** **==> picture [7 x 9] intentionally omitted <==** works at least for a period of five months. The compensation for loss of earnings comes to Rs 40,000/- (8000 x 5). Rs 16,000/- was awarded by the tribunal. The balance is Rs 24,000/-. That is the enhancement. - 10.The compensation for disability should be reworked since the monthly income of the appellant is taken at as Rs 8,000/-. The figure arrived at is Rs 1,49,760/- (8000 x 12 x 13 x 12%). Deducting the amount of Rs 74,880/- awarded by the tribunal, the enhancement is Rs 74,880/-. - 11.Chandran had a claim for property damage also. His bike was damaged in the accident. Ext A10 is the garage bill. The amount billed was Rs 19,432/-. The tribunal deducted 50% of that amount as depreciation. The amount awarded by the tribunal was Rs 9,716/-. The learned counsel for the appellant relied on the decision of a full bench of this court in Joseph M.M. v. Venkata Rao M. (2016 (1) KHC 756) . Paragraph 15 of the **MACA.Nos.3271, 3280 & 3406/2014** 6 ## decision reads thus : Therefore, the only factor that requires to be considered is with regard to the reasonableness of the compensation. As already indicated and as evident from the above discussion, what is required to be paid is just compensation. If the vehicle can be repaired and used, to make it roadworthy, necessarily, the cost incurred by the claimant will be the proper compensation. The compensation can include the actual cost of repairs, labour charges and other expenses. Only in instances, where the cost of repairs exceed the market value of the vehicle, that the claim can be limited to the market value. In view of the dictum laid down by the full bench in the decision referred to above, what should be awarded as compensation is the actual cost of spare parts and repair charges, provided the cost of repairs does not exceed the insured value of the vehicle. The tribunal was therefore not justified in reducing 50% as depreciation. - 12.The learned counsel for the 2[nd] respondent submitted that the claim of Chandran was only Rs 15,000/-. Accepting the said argument I fix the compensation payable for property damages at Rs ## **MACA.Nos.3271, 3280 & 3406/2014** 7 - 15,000/-. Deducting Rs 9,716/- awarded by the tribunal, the enhancement is Rs 5,284/-. - 13.Under four heads Chandran is entitled to get the compensation enhanced to Rs 1,09,164/- (5000 + 24,000 + 74,880 + 5284). I round it off to Rs 1,09,200/-. - 14.Chandran's wife Ambika was also a claimant. She was aged 38 years at the time of the accident. She also sustained severe injuries. She had a disability of 25% as assessed by the medical board. She was hospitalized for 26 days. - 15.Ambika is and was a house wife. She was not an earning member. But a notional income should be taken to calculate the entitlement of hers as compensation for disability. The claim was only Rs 4,000/-. The claim was scaled-down to Rs 3,000/per month. I do not find any justifiable reason for such reduction. For the purpose of calculation Rs 4,000/- per month can be taken as the notional 8 ## **MACA.Nos.3271, 3280 & 3406/2014** income of Ambika. - 16.Having heard the counsel on two sides I find space for enhancement only under two heads. Such space is available only because the notional income is refixed. The tribunal fixed compensation for loss of earnings at Rs 36,000/-. That was the compensation awarded for 12 months. The entitlement of Ambika is Rs 48,000/- (4000 x 12). The deficit of Rs 12,000/- is the enhancement. - 17.The learned counsel for the 2[nd] respondent argued that the tribunal instead of taking 15 as the multiplier took 16. The learned counsel is right in her submission. The compensation for disability comes to Rs 1,80,000/- (4000 x 12 x 15 x 25%). Rs 1,44,000/- was awarded by the tribunal. Rs 36,000/- is the deficit and is the enhancement. - 18.The enhancement in compensation for Ambika under two heads is Rs 48,000/- (12,000 + 36,000). 9 ## **MACA.Nos.3271, 3280 & 3406/2014** 19.Rahul Chandran is the progeny of Chandran and Ambika. Rahul Chandran was 16 years old at the time of the accident. The boy too sustained injuries. He too had a disability. His disability was assessed by the medical board at 7%. That assessment was accepted by the tribunal. The tribunal had taken Rs 3,000/- per month as the notional income for the boy for the purpose of calculating the disability compensation. That figure was low. The accident was in 2010. Therefore the notional income could be taken at Rs 5,000/- per month. The tribunal had only taken 16 as the multiplier. It should be 18. The calculation goes to the figure Rs 75,600/- (5000 x 12 x 18 x 7%). Rs 40,320/- was awarded by the tribunal. That amount shall be deducted. The balance is Rs 35,280/-. That is the enhancement. The figure is rounded to Rs 35,500/-. - 20.All the appeals are allowed with proportionate costs. In each appeal an award is passed enhancing the compensation. The enhancement shall be Rs **MACA.Nos.3271, 3280 & 3406/2014** 10 1,09,200/- (one lakh nine thousand two hundred only) in M.A.C.A.3280/2014, Rs 48,000/- (forty eight thousand only) in M.A.C.A.3271/2014 and Rs 35,500/- (thirty five thousand five hundred only) in M.A.C.A.3406/2014. In each case the amounts denied by the tribunal shall be paid to the respective claimants by the 2[nd] respondent through the tribunal. The amounts denied by the tribunal as well as the amounts awarded as enhanced compensation shall carry interest at the rate of 7.5% per annum. The interest shall be payable from the date of filing of the application to the date of deposit. The 2[nd] respondent is given a period of two months from the date of receipt of a copy of this judgment to deposit the amounts before the tribunal. **Sd/-** A.M.BABU Judge Mrcs/15.3. /True copy/ Sd/- P.S.To Judge