Balakrishnan s/o Kochunni v. United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943 MACA NO. 2543 OF 2012** **AGAINST THE AWARD DATED 26.05.2012 IN OPMV 3204/2005 OF S MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** BALAKRISHNAN S/O.KOCHUNNI RESIDING AT THAZHATHUVALAPPIL HOUSE OLLUKKARA MANNUTHY P.O THRISSUR DISTRICT BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** - 1 JOSE S/O.KOCHUVAREED RESIDING AT 2/409 MENACHERY HOUSE MADAKKATHARA THRISSUR PIN 680651 - 2 LINSON S/O.PAULSON RESIDING AT ELUVATHINGAL HOUSE, MULAYAM ROAD MULLAKARA P.O MANNUTHY, THRISSUR PIN 680651 - 3 THE UNITED INDIA INSURANCE COMPANY LIMITED PARK HOUSE ROUND NORTH THRISSUR PIN 680001 BY ADV SMT.K.C.BEENA ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No2543-2012 -:2:- Dated this the 13[th] day of January, 2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.3204/2005 on the file of the Motor Accidents Claims Tribunal,Trissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 29.01.2005. It was his case that, while he was riding his motorcycle bearing registration No. KL-8-V-1993 along with his friend Nandakumar as the pillion, through the MulayamMullakkara public road, a jeep bearing registration No. KEQ 171, driven by the second respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained serious injuries and was treated as an inpatient at the Jubilee Mission M.A.C.A.No2543-2012 -:3:- Hospital for a period of 21 days. The appellant sustained a open grade II fracture of his right tibia. The appellant was a clerk in a chitty company and drawing a salary of Rs.5000/-. The jeep was owned by the first respondent and insured with the third respondent. Hence,the appellant claimed a compensation of Rs.2,43,000/-from the respondents, which claim was limited to Rs.2,25,000/-. 3. The pillion rider of the motorcycle had also filed O.P.(M.V) No.3394/ 2005 before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceeding and were set ex- parte. 5. The third respondent had filed written statements in both the claim petitions, inter alia, contending that the accident occurred due to the negligence of the appellant. Even though the third respondent had admitted that the jeep had a valid insurance policy, it was asserted that there was violation of insurance policy conditions because the M.A.C.A.No2543-2012 -:4:- second respondent did not hold a valid driving license. 6. The appellant had examined himself as PW1 and marked Exhibits A1 to A17 in evidence. The third respondent had produced Exhibit B1 insurance policy in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,48,300/- with interest and cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.T.C. Suresh Menon, the learned counsel appearing for the appellant/petitioner and Sri.K.C. Beena, the learned counsel appearing for the third respondent/insurer. 10. The sole question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable M.A.C.A.No2543-2012 -:5:- and just? ## **Negligence and liability** 11. Exhibit A1 FIR, A2 scene mahazar and A5 FI statement proves the fact that the accident occurred due to the negligence of the second respondent. Even though the appellant had categorically claimed in the claim petition that the accident occurred due to the negligence of the second respondent, the respondents have not let in evidence to controvert the any assertions in the claim petition or discredit Exhibits A1, A2 and A5. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was a clerk in a chitty company and was drawing a monthly M.A.C.A.No2543-2012 -:6:- income of Rs.5000/-. For the want of material, the Tribunal has fixed the notional monthly income of the appellant at Rs.4000/-. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the appellant at Rs.5000/-. ## **Loss of earnings** 15. The appellant had claimed that he was indisposed for a period of seven months. However, the Tribunal has held that the appellant was indisposed for a period of four months. On a consideration of the fact that the appellant had sustained a open grade II fracture of his right tibia, and that he was treated as M.A.C.A.No2543-2012 -:7:- an inpatient for a period of 21 days, I hold that he was indisposed for a period of six months. 16. In view of the re-fixation of the notional monthly income of the appellant at Rs.5000/- and that he was indisposed for a period of six months, I award the appellant an amount of Rs.30,000/- towards ‘loss of earnings’, instead of Rs.16,000/- awarded by the Tribunal. ## **- By stander expenses and extra nourishment** 17. The Tribunal has awarded an amount of Rs.3150/- towards ‘by-stander expenses’ and Rs.2000/towards ‘extra nourishment’. 18. On a consideration of the fact that the appellant was treated as an inpatient for a period of 21 days and that the accident occurred in the year 2005, I award the appellant an amount of Rs.300/- per day for a period of 21 years towards ‘by-stander expenses’, which works out to Rs.6300/-, and Rs.150/per day for a period of 21 days towards ‘extra M.A.C.A.No2543-2012 -:8:- nourishment’, which comes to Rs.3150/-. ## **Pain and suffering and loss of amenities** 19. The Tribunal has awarded an amount of Rs.14,000/- under the head ‘pain and sufferings’ and Rs.12,000/- under the head ‘loss of amenities’. 20. On a consideration of the fact that the appellant had sustained a type II open fracture of his right tibia, that he was treated as an inpatient for a period of 21 days and that he was indisposed for a period of six months, I award him further amounts of Rs.6000/- under the head ‘pain and sufferings’ and Rs.8000/- under the head ‘loss of amenities’. 21. With respect to the amounts of compensation awarded under the heads transportation expenses, compensation, medical expenses, and discomfort expenses, I find that the same to be reasonable and just. 22. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the M.A.C.A.No2543-2012 -:9:- afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|16000|30000| |2|Transport<br>expenses|4000|4000| |4|By-stander<br>expense|3150|6300| |5|Extra nourishment|2000|3150| |6|Medical expenses|82086|82086| |7|Pain and sufferings|14000|20000| |8|Loss of amenities|12000|20000| |9|Loss of discomfort|15000|15000| ||**Total**|**148236**<br>**rounded to**<br>**148300**|**180536**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.32,236/- with interest at the rate of 7% per annum M.A.C.A.No2543-2012 -:10:- from the date of petition till the date of deposit, after deducting interest for a period of 39 days i.e the period of delay in filing the appeal and as ordered by this Court on 08.10.2021 in C.M.Application No. 1/2012, and a cost of Rs.5000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm14/01/2022