Baby, W/o Chacko v. Sajesh A.S. and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** **MACA NO. 513 OF 2012** **AGAINST THE AWARD IN OP(MV) 744/2007 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER:** BABY, W/O.CHACKO, ELUVATHINGAL HOUSE, NADAVARAMBU DESOM, VELOOKKARA VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.V.BINOY RAM **RESPONDENTS/RESPONDENTS:** 1 SAJESH A.S., S/O.SUNDARAN, APPOZHAMPARAMBIL HOUSE, PULLUT P.O., KOZHIKKADA, KODUNGALLUR, PIN-680 664. 2 THE BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD., TANA, IRINJALAKUDA, PIN-680 121. 3 JOHN CHACKO, S/O.CHACKO, ELUVATHINGAL HOUSE, NADAVARAMBU P.O., THRISSUR DISTRICT, PIN-680 661. 4 ABDUL SALAM, S/O.MOHAMMED, PUZHANGARAYILLATH HOUSE, P.O.ELAVALLY SOUTH, THRISSUR DISTRICT, PIN-680 511. 5 THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD., IRINJALAKUDA, PIN-680 121. BY ADVS. SRI.M.A.GEORGE SRI.P.JAYASANKAR SRI.JOHN JOSEPH VETTIKAD SRI.P.G.JAYASHANKAR SMT.LINTA VARGHESE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.513 of 2012** 2 ## **JUDGMENT** This appeal arises out of award dated 15.11.2011 in O.P.(M.V) No.744/2007, on the file of Motor Accidents Claims Tribunal, Irinjalakuda. The appellant herein is the original petitioner, where the original respondents before the Tribunal are the respondents. 2. Heard the learned counsel for the appellant as well as the learned counsel for the respondents. Sri.P.G.Jayashankar, learned Standing Counsel appearing for R5. 3. Brief facts of the case: In this case, the appellant met with an accident on 06.04.2007 at about 6:50 p.m, while she was travelling as pillion rider on a motorcycle bearing registration No.KL-8/P-9863, alleged to be driven by the 3[rd] respondent, through Thrissur-Kodungallur public road from south to north direction and when the 3[rd] 3 ## **M.A.C.A No.513 of 2012** respondent turned the motorcycle on the eastern direction, then another motorcycle bearing registration No.KL-47-2036 came from the same direction behind the motorcycle, driven by the 1[st] respondent and in a rash and negligent manner, hit on the motorcycle in which the appellant was travelling and she sustained serious injuries. On the above facts, an application under Section 166 of the Motor Vehicles Act was preferred by the appellant before the M.A.C.T, Irinjalakuda claiming compensation to the tune of Rs.1,50,000/-. 4. Respondents 2, 3 and 5 filed written statement and disputed the claim. 5. The 2[nd] respondent, Insurance Company denied negligence on the part of the 1[st] respondent as well as the injuries alleged to be sustained by the appellant while admitting policy to motorcycle bearing registration No.KL47-2036. Quantum of compensation also was disputed. **M.A.C.A No.513 of 2012** **==> picture [7 x 9] intentionally omitted <==** 6. The 5[th] respondent, insured also filed written statement. The 5[th] respondent admitted issuance of 'Act only' policy to KL-8/P-9863 motorcycle, and disputed negligence. Quantum of compensation also was disputed by the 5[th] respondent. 7. The Tribunal examined Pws.1 and 2 and marked Exts.A1 to A11 on the side of the appellant and Exts.B1 to B3 on the side of the Insurance Company. 8. After evaluation of the evidence as against the claim of Rs.1,50,000/-, the Tribunal granted Rs.56,000/- as compensation along with 7.5% interest, payable by R1 and R2 jointly and severally with direction to R2 to deposit the same. 9. Since the finding entered into by the Tribunal in the matter of negligence on the part **==> picture [421 x 13] intentionally omitted <==** compensation alone required to be looked in this appeal. ## **M.A.C.A No.513 of 2012** 5 10. In this matter, the appellant sustained injuries viz., fracture of left public rami, fracture of transverse process 2, 3 and 4 left side. She underwent inpatient treatment for a period of 14 days from from 06.04.2007 to 19.04.2007. 11. According to the learned counsel for the appellant, the monthly income fixed by the Tribunal at Rs.2,000/- in this case is on lower side. Hence, he canvassed increase in monthly income. In the petition, the appellant claimed Rs.4,000/- as the monthly income. I am inclined to accept the same as such since as per _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC** **236,** the monthly income of the appellant is more than the claimed amount. The Tribunal granted 'loss of earnings' at Rs.3,000/- for 5 months. I am inclined to increase the monthly income at Rs.4,000/- for 5 months. Thus, **Rs.5,000/-** more ## **M.A.C.A No.513 of 2012** **==> picture [7 x 9] intentionally omitted <==** is granted under the head 'loss of earnings'. 12. Next challenge in this appeal is the percentage of disability, found by the Tribunal. As per Ext.A7 disability certificate produced by the appellant, issued by Dr.Shaji K.K., Irinjalakuda Co-operative Hospital, certified 8% permanent disability to the appellant. The Tribunal not accepted the disability certificate on the ground that if the disability income calculated on structured formula, the same would be on higher side. Accordingly, Rs.8,000/granted under the head of 'loss of disability income' as a consolidated sum. No doubt the procedure adopted by the Tribunal is not correct. The Tribunal ought to have accepted the disability as such or the Tribunal ought to have fixed a lesser percentage of disability. If the Tribunal was not interested to accept Ext.A11, it must be for valid reasons. Since the reasoning given by the Tribunal to reject Ext.A11 apprehending more amount of compensation **M.A.C.A No.513 of 2012** **==> picture [7 x 9] intentionally omitted <==** is not justifiable, the said finding is set aside. In consideration of the injuries at par with Ext.A7, I am inclined to accept 8% disability, fixed as per Ext.A7. Thus disability income is recalculated as under: 4000 x 12 x 11 x 8% = 42,240/- Out of which, Rs.8,000/- was granted by the Tribunal. Thus, **Rs.34,240/-** more is granted under the head 'loss of disability income'. 13. The learned counsel for the appellant canvassed increase under the head 'pain and sufferings' and 'loss of amenities'. Considering the injuries and treatment, I am inclined to grant **Rs.7,000/-** more under the head 'pain and sufferings' and **Rs.7,000/-** more under the head 'loss of amenities'. 14. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.1,09,240/- as compensation out of which Rs.56,000/- was granted by the Tribunal and the ## **M.A.C.A No.513 of 2012** 8 balance amount of **Rs.53,240/-** (Rupees Fifty Three Thousand Two Hundred and Forty Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 2[nd] respondent, Insurance Company from the date of petition till the date of deposit or realisation. 15. As far as the other respondents are concerned, no liability upon them, since the Tribunal also not found any liability upon them. The 2[nd] respondent, insurance Company is directed to deposit the amount in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww