ANNAMMA JOHN v. RAJESH B. NAIR KOCHU KAROTTU (H) & SAJAYAN P.P & DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD

2025:KER:27619 **==> picture [63 x 63] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN ``` ``` FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 ``` ``` MACA NO. 1082 OF 2018 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 16.12.2017 IN OPMV NO.483 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM ``` ## **`APPELLANT/PETITIONER:`** ``` ANNAMMA JOHN AGED 56, W/O. JOHN VARGHESE, KOLATHU (H), MANTHURUTHI P.O,NEDUMKUNAM VILLAGE. ``` ``` BY ADVS. SRI.PRAFIN JOSEPH ZACHARIA SMT.PRASEENA ELIZABETH JOSEPH ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 3:`** - **`1 RAJESH.B.NAIR KOCHU KAROTTU (H), ERUMATHALA BHAGAM, VAZHOOR- 686 504.`** - **`2 SAJAYAN P.P`** ``` PUTHENKUTTIYIL(H),PRAKASH P.O, KALIYAR KANDAM, IDUKKI DISTRICT - 685 515. ``` ``` 3 DIVISIONAL MANAGER ORIENTAL INSURANCE COMPANY LTD, KOTTAYAM PIN 686 001. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN COME UP FOR HEARING ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1082 OF 2018 2 ``` **==> picture [63 x 63] intentionally omitted <==** 2025:KER:27619 ## **JUDGMENT** The petitioner in O.P.(M.V.) No.483/2016 on the file of the Motor Accidents Claims Tribunal, Kottayam has preferred this appeal seeking enhancement of compensation awarded by the tribunal on account of the injuries sustained by her in a motor accident that occurred on 03.01.2016. 2. The case of the petitioner in brief is as follows:- On 03.01.2016, at about 9.00 p.m., while the petitioner was travelling as a pillion rider in a motorcycle bearing registration No. KL-05-N-4191 ridden by her husband through Vazhoor - Changanassery public road and when reached near Mailadi toddy shop, a car bearing registration No. KL-07-AN-5553 came from the rear and hit on the motorcycle on which the petitioner was travelling. Due to the impact of the hit, the petitioner as well as her husband were thrown to the road causing serious injuries on both of them. 3. The driver and the owner of the offending car were arrayed as 1[st] and 2[nd] respondents respectively, whereas, the insurer of the said car was arrayed as 3[rd] respondent. 4. The 3[rd] respondent contested the petition by filing a ``` MACA NO. 1082 OF 2018 3 ``` **==> picture [63 x 63] intentionally omitted <==** 2025:KER:27619 written statement mainly disputing the quantum of compensation claimed in the petition. However, the 3[rd] respondent admitted insurance coverage for the car involved in the accident. 5. During trial, the documents produced from the side of the petitioner were marked as Exts.A1 to A10. From the side of the respondents, copy of the insurance policy certificate was produced and marked in evidence as Ext.B1. 6. After trial, the tribunal came to the conclusion that the accident occurred solely due to the rash and negligent driving of the car bearing registration No. KL-07-AN-5553 by the 1[st] respondent, and being the insurer, the 3[rd] respondent was held liable to pay the compensation. However, the tribunal further found that there was violation of policy conditions as the 1[st] respondent who had driven the car was not having a valid driving license at the time of the accident. Considering the same, after effecting the payment, the 3[rd] respondent was permitted to recover the compensation paid, from the 2[nd] respondent, the owner of the offending vehicle. The compensation was quantified as Rs. 95,350/- with interest at the rate of 8% per annum from the date of petition till realisation and proportionate costs. ``` MACA NO. 1082 OF 2018 4 ``` **==> picture [63 x 63] intentionally omitted <==** 2025:KER:27619 Seeking enhancement of the said compensation awarded by the tribunal, the petitioner has come up with this appeal. 7. I heard Sri.Prafin Joseph Zacharia, the learned counsel appearing for the appellant, and Smt.K.S Santhi, the learned counsel appearing for the respondents. 8. From the rival contentions raised, it is gatherable that the main dispute that revolves around this appeal is with respect to the quantum of compensation awarded by the tribunal. The learned counsel for the petitioner would submit that the compensation awarded by the tribunal under various heads is too meager and such an amount was awarded without considering the gravity and nature of the injuries sustained by the petitioner in the accident. Per contra, the learned counsel for the respondents contended that the compensation awarded by the tribunal is just, fair, reasonable, and adequate and warrants no interference. 9. From a perusal of the impugned award, it can be seen that for the purpose of determining compensation under the head of loss of earnings, the tribunal assessed the income of the petitioner at Rs. 8,000/-. Admittedly, no evidence, whatsoever ``` MACA NO. 1082 OF 2018 5 ``` **==> picture [63 x 63] intentionally omitted <==** 2025:KER:27619 was produced from the side of the petitioner to prove her actual occupation and income. Nonetheless, the accident occurred in the year 2016. Therefore, in view of the principles laid down in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]**_ , the tribunal ought to have assessed the monthly income of the petitioner at Rs.10,500/- notionally. 10. For the purpose of determining compensation, the tribunal took loss of earnings for a period of four months. Considering the nature of the injuries, I am of the view that the period of loss of earnings taken by the tribunal is on the lower side. The petitioner had sustained the following injuries in the accident; - Severe pain over the middle third of right leg; - Contused abrasion right knee; ● Comminuted fracture tibial shaft middle 1/3[rd] right tibia. The nature of the injuries suggests that the petitioner would have been prevented from doing any work or earning any income at least for a period of six months. Resultantly, the petitioner is entitled to get an amount of Rs. 63,000/- (Rs.10,500/- x 6 ) as ``` MACA NO. 1082 OF 2018 6 ``` **==> picture [63 x 63] intentionally omitted <==** 2025:KER:27619 compensation under the head of loss of earnings. After deducting the already awarded amount of Rs.32,000/- under the said head, the petitioner is entitled to get an amount of Rs.31,000/(Rupees Thirty-One Thousand only) as additional compensation. 11. Similarly, under the head of pain and sufferings, the tribunal awarded only a meager amount of Rs. 30,000/-. It is apparent that such an amount was awarded without taking note of the serious nature of the injuries sustained by her in the accident as well as the hardships and inconveniences endured by the petitioner. I am of the view that an amount of Rs. 50,000/is to be awarded under the head of pain and sufferings, entitling the petitioner to get an additional compensation of Rs. 20,000/(Rupees Twenty Thousand Only) under the said head. 12. Moreover, under the head of loss of amenities and enjoyment in life, the tribunal awarded only an amount of Rs.20,000/- as compensation. As revealed from the treatment records, the petitioner had undergone nine days of inpatient treatment in connection with the accident. The hardships and inconveniences endured by her cannot be overlooked while awarding compensation under the head of loss of amenities and ``` MACA NO. 1082 OF 2018 7 ``` **==> picture [63 x 63] intentionally omitted <==** 2025:KER:27619 enjoyment in life. Therefore, I am of the view that an additional compensation of Rs. 20,000/- (Rupees Twenty Thousand Only) has to be awarded under the head of loss of amenities and enjoyment in life. 13. The compensation awarded by the tribunal under other various heads appears to be reasonable and justifiable and hence, no interference is warranted. Hence, an amount of Rs. 71,000/- (Rs. 31,000/- + Rs. 20,000/- + Rs. 20,000/- has to be added towards the total compensation. In the light of the aforesaid observations and findings, the appeal is allowed by enhancing the compensation by a further amount of Rs. 71,000/- (Rupees Seventy-One Thousand only) with interest at the rate of 7.5% per annum on the enhanced compensation from the date of claim petition till the date of deposit. The respondent insurance company is ordered to deposit the enhanced compensation with interest before the Tribunal with proportionate costs within a period of three months from the date of receipt of the certified copy of this judgment. As there was violation of policy conditions, the 3rd respondent, the insurance company is permitted to recover the amount paid as ``` MACA NO. 1082 OF 2018 8 ``` **==> picture [63 x 63] intentionally omitted <==** 2025:KER:27619 additional compensation from the 2[nd] respondent, the owner of the car involved in the accident, after effecting the payment. **==> picture [433 x 35] intentionally omitted <==** **Sd/JOBIN SEBASTIAN JUDGE** ANS \[