High Court of KeralaDivision Bench2011-11-08Appeal allowed in part; enhanced compensation b...

BALACHANDRAN v. THE NEW INDIA ASSURANCE CO. LTD. & 2 others

Case / Petition Number:MACA No.1447 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
V. Chitambaresh
Judgment Date: 2011-11-08
Court Decision / Holding: The appeal is allowed in part. The High Court apportioned negligence 10% to Balachandran and 90% to the insured rider (instead of 40% to Balachandran). It enhanced certain heads of damage, notably increasing pain and suffering to Rs. 12,000 and adjusting total compensation to Rs. 23,656, with an additional Rs. 10,286 payable beyond the MACT’s award. Interest remains as directed by the Tribunal, and costs are to be awarded per Jeena v. Satheesh Babu. All other Tribunal directions are upheld. The matter also records delay condonation in a related application, with a condition that no interest shall accrue for the delay if compensation is enhanced.
Final Disposition: Appeal allowed in part; enhanced compensation by Rs. 10,286 beyond the MACT award; liability apportioned 10% to Balachandran and 90% to the insured rider; interest as per Tribunal; costs as per Jeena v. Satheesh Babu. The related delay-condonation petition was allowed with the condition that no interest accrues for the delay if compensation is enhanced.

Parties to the Case

Appellants / Petitioners

Balachandran

Respondents

Ayoob Khan
V.N. Manoj
The Manager, The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P.S. Nandanam
• Sri. P.N. Anoop
• Sri. Santhosh Peter (Mamalyil)
• Smt. P.R. Rekha

Counsels for Respondents

• Smt. Raji T. Bhaskar

Case Synopsis & Summary

Balachandran, the claimant in O.P.(MV)1807/05, sought compensation for injuries from a motor accident on 24.12.2004 while riding a motorcycle. The other rider’s vehicle, insured by The New India Assurance Co. Ltd., collided with Balachandran’s bike after overtaking a tipper lorry. Balachandran, who required four days of hospitalization, suffered a fracture of the left wrist radial styloid with intra-articular extension but no permanent disability. The Motor Accidents Claims Tribunal (MACT), Perumbavoor, awarded Rs. 22,284 for heads including loss of earnings, transport, medical expenses, and pain and suffering while holding Balachandran 60% responsible for the accident. On appeal, the Kerala High Court re-examined the evidence (notably Ext. A2, the police charge sheet) and relied on The New India Assurance Co. Ltd. v. Pazhaniammal (2011 (3) KLT 648) to hold that the driver of the insured vehicle bore the principal responsibility, though Balachandran’s lack of a valid driving license warranted some caution. The court apportioned liability at 10% to Balachandran and 90% to the insured rider, fixed the appellant’s monthly income at Rs. 3,000 in absence of contrary proof, and enhanced pain and suffering from Rs. 8,000 to Rs. 12,000 while leaving other heads intact. It computed a total loss of Rs. 23,656 and directed an additional Rs. 10,286 as compensation, with interest as per the Tribunal and costs per Jeena v. Satheesh Babu. The appeal was allowed in part, with other Tribunal directions upheld.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the MACT erred in quantifying loss and in holding him 60% contributorily negligent. It is argued that the computation of quantum is incorrect and that the 40% apportionment to Balachandran is unfounded. In the absence of reliable evidence on income, Rs. 3,000 per month was justified; higher compensation for pain and suffering (Rs. 12,000) is fair given hospitalization, injury severity, and overall circumstances. The lack of a valid driving license, while a factor, does not justify a 40% reduction in liability. The court should reallocate liability and reframe the quantum consistent with the supporting materials and authoritative dicta including Pazhaniammal to reflect greater responsibility on the insured rider.

Contentions of Respondents

The respondents challenge only the quantum of the award, seeking to preserve the MACT’s figures. They rely on the evidence (or lack thereof) regarding income and medical costs and resist excessive enhancement. They maintain that the insured rider’s conduct, particularly the overtaking action, warrants significant consideration, but the liability issue is to be resolved in the manner as ultimately determined by the court, without unduly increasing the claimant’s compensation. They also argue for adherence to the tribunal’s basis for costs and the Tribunal’s other directions.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
The New India Assurance Co. Ltd. v. Pazhaniammal and others	2011 (3) KLT 648	Positive	Cited for guidance on the apportionment of liability involving the insured vehicle’s driver, informing the 10%/90% split and the allocation of fault.
Jeena v. Satheesh Babu.K.	2011 (3) KLT 943	Positive	Cited to determine the method of calculation of costs on appeal and the proportional award of costs relative to the compensation.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against BALACHANDRAN v. THE NEW INDIA ASSURANCE CO. LTD. & 2 others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 MACA.No. 1447 of 2011() ----------------------OPMV.1807/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): PETITIONER IN O.P.(MV)1807/05 ------------------------------------------- BALACHANDRAN, S/O.VEERAKRISHNAN, EDATHIKATTU HOUSE, AMBUND, MALAYIDAMTHURUTHU.P.O. BY ADV. SRI.P.S.NANDANAN SRI.P.N.ANOOP SRI.SANTHOSH PETER (MAMALAYIL) SMT.P.R.REKHA RESPONDENT(S): RESPONDENTS 1 TO 3 IN O.P.(MV)1807/05 ---------------------------------------------------- 1. AYOOB KHAN, S/O.SAYED MUHAMMED, PEECHAMKALI HOUSE, N.EZHIPRAM. PIN-683 107. 2. V.N.MANOJ, 34/128, VADAKKEPARAMBIL HOUSE, EDAPILLY.P.O., ERNAKULAM. PIN-682 024. 3. THE MANAGER, THE NEW INDIA ASSURANCE CO.LTD., ST.JOSEPH'S BUILDING, A.M.ROAD, PERUMBAVOOR. PIN-683 542. BY ADV. SMT.RAJI T.BHASKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- ## **M.A.C.A No.1447 of 2011** ------------------------------- ## **Dated this the 8[th] day of November, 2011** ## **J U D G M E N T** Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 24.12.2004. He was riding a motor cycle. The motor cycle hit against another motor cycle. He claimed that the rider of the other motor cycle (insured vehicle) was entirely responsible for the accident. He suffered fracture of the left wrist radial styloid with intra-articular extension. He was an inpatient for four days . He did not suffer any permanent disability as result of the accident. The Tribunal came to the conclusion that the appellant has suffered loss to the extent of Rs.22,284/- as per the details given in paragraph 12 of the impugned award, which we extract below:- Sl.No. Head of claim Amount awarded |Sl.No. Head of claim Amount awarded|Sl.No. Head of claim Amount awarded|Sl.No. Head of claim Amount awarded| |---|---|---| |-------------------------------------------------------------------------||| |1.|Loss of earning|Rs. 6,000.00| |2.|Partial loss of earnings|-| |3.|Transport to hospital|Rs. 500.00| |4.|Extra nourishment|Rs. 500.00| |5.|Damage to clothings etc.|Rs. 250.00| |6.|Attendant expenses|Rs. 400.00| |7.|Treatment expenses|Rs. 2,634.00| |8.|Pain and suffering|Rs. 8,000.00| M.A.C.A.No.1447 of 2011 2 9. Loss of amenities etc. Rs. 4,000.00 - 10. Loss of earning power - 11. Permanent disability -----------------------------------------------------------------TOTAL Rs.22,284.00 ===================================== The Tribunal found that the appellant had contributed 40% to the accident. Accordingly, it was held that the appellant is entitled only for 60% of the total loss as compensation. 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only against the quantum of compensation awarded. The learned counsel for the appellant advances two contentions. First of all, it is contended that the computation of quantum of loss is incorrect. Secondly, it is contended that the Tribunal erred in concluding that the appellant had contributed 40% to the accident. 3. Coming to the question of negligence, the only piece of evidence available is the final report submitted by the M.A.C.A.No.1447 of 2011 3 police after due investigation. Ext.A2 is the charge sheet. Going by the dictum in **The New India Assurance Co. Ltd., v. Pazhaniammal and others** (2011 (3) KLT 648), we are satisfied that on the available evidence, it is easy to come to the conclusion that the responsibility for the accident was that of the driver of the insured vehicle. The insured vehicle was overtaking a tipper lorry. Considerable amount of care is expected from the driver who is attempting to overtake another vehicle. The police have also filed a charge against the appellant that he was not having a valid driving licence at the time of accident. The fact that the appellant was not having a valid driving licence, according to us, is not a sufficient reason to jump to the conclusion that the appellant had contributed 40% to the accident. However, the fact that he was not having a valid driving licence deserves to be taken note of. We are of the view that the responsibility for the accident can be apportioned at 10% and 90% between the appellant and the rider of the insured vehicle. M.A.C.A.No.1447 of 2011 4 4. Coming to the quantum of compensation, a contention is advanced that the monthly income of the appellant must have been fixed at a higher amount than Rs.3000/-. In the absence of any evidence on that aspect, the Tribunal was perfectly justified in assessing the monthly income at Rs.3000/per mensem. The appellant was an inpatient for four days. Under the head pain and suffering, we are satisfied, taking all the circumstances into account, that a total amount of Rs.12,000/- awarded is fair and just. We are not persuaded to interfere with the quantum of compensation awarded on any other head. 5. The above discussions lead us to the conclusion that the appellant has suffered a total loss of Rs.23,656/- as per the details given below:- The amount of loss as found by the Tribunal Rs.22,284.00 Further amount payable under the head pain and suffering (12,000 minus 8000) Rs. 4,000.00 M.A.C.A.No.1447 of 2011 5 ## **TOTAL** 90% of the loss **Rs.26,284.00** Rs.23,656.00 ========== 6. The appellant is thus entitled to a further amount of Rs.10,286/- (23,656 minus 13,370) as compensation in addition to the amount awarded by the Tribunal. - 7. In the result: a) This appeal is allowed in part; b) In supersession of the directions issued by the Tribunal, the appellant is found entitled to a further amount of Rs.10,286/- (Rupees ten thousand two hundred and eighty six only) as compensation. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal. d) The proportionate cost for the proceedings before the Tribunal shall be awarded on the entire of amount of compensation calculated as per the dictum in **Jeena v.** M.A.C.A.No.1447 of 2011 6 ## **Satheesh Babu.K.** (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** **nj.** ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- **C.M.Appln.No. 2213 of 2011 in M.A.C.A No.1447 of 2011** ------------------------------- **Dated this the 8[th] day of November, 2011** ## **O R D E R** This petition is to condone the delay of 494 days in filing the appeal. Heard. We take a lenient view. Petition allowed. Delay condoned on condition that if the compensation is enhanced, no interest shall be payable for the period of delay of 494 days in filing the appeal. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** **nj.**