Binu Thomas v. The Divisional Manager, Oriental Insurance Company Ltd. (and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942** ## **MACA.No.780 OF 2012** **AGAINST THE AWARD IN OPMV 97/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/PETITIONER:** **BINU THOMAS S/O.THOMAS, AGED 26 YEARS, CHAKKIYATH VEEDU, EMILY, FATHIMA NAGAR, KALPETTA POST, VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENT/RESPONDENT NO.3:** **THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICER NO.II, RAVIPURAM, M.G.ROAD, KOCHI-16.** **R1 BY ADV. SRI.GEORGE CHERIAN (SR.) R1 BY ADV. SRI.ALEXY AUGUSTINE** **ADV. SMT. K.S.SANTHI, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.780 OF 2012 2 ## **`P.V.KUNHIKRISHNAN, J --------------------------------------M.A.C.A. No. 780 of 2012`** ``` ------------------------------------------ Dated this the 16[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellant is the petitioner in O.P(M.V). No. 97/2005 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The above claim petition was filed under Section 166(1)(a) of the Motor Vehicles. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2. The short facts are like this: - On 14.12.2004, when the petitioner was riding a motorcycle bearing Registration No. KL-12-B/7292, a bus bearing Registration No. KL-10-N/4145 driven by the 1[st] respondent in a rash and negligent manner coming from ``` MACA.No.780 OF 2012 3 ``` the opposite side, hit against the motor cycle in which petitioner was travelling. On sustaining serious injuries, petitioner was taken to Leo Hospital and later referred to Medical College Hospital, Kozhikode and was treated as inpatient there for one month. According to the petitioner, the accident occurred due to the negligent driving of the bus by the 1[st] respondent. Second respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. Therefore, they are jointly and severally liable to pay compensation. ``` ``` 3. To substantiate the case, Exhibits A1 to A10 were marked on the side of the petitioners and the petitioner himself was examined as PW1. Exhibit C1 is the medical certificate. After going through the evidence and documents, the Tribunal found that the appellant is entitled an amount of Rs.1,66,400/- (Rupees One Lakh Sixty Six Thousand and Four Hundred Only) as ``` MACA.No.780 OF 2012 4 ``` compensation with interest at the rate of 7.5% p.a., from the date of petition till realisation. Aggrieved by the quantum of compensation, this appeal is filed. ``` `4. Heard the learned counsel for the appellant and` `the learned counsel for the respondent.` ``` 5. The learned counsel for the appellant submitted that the monthly income fixed by the Tribunal is Rs.3,500/-. According to him, petitioner was an Auto- Rickshaw driver aged 20 years at the time of accident and was getting a monthly income of Rs.5,000/-. It is true that there is no documentary evidence to prove that the appellant was getting an amount of Rs.5,000/- per month. Admittedly, the appellant was having a driving license. The accident happened in the year 2004. Taking the principle laid down by the Apex Court inRamachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236], I find that an amount ``` MACA.No.780 OF 2012 5 ``` of Rs.4,500/- can be fixed as monthly income of the appellant. As far as the multiplier is concerned, the Tribunal taken the multiplier as ‘16’. Considering the age of the petitioner, the correct multiplier is ‘18’. If that is the case, the compensation for disability is to be recalculated like this:- ``` ``` 4500x12x18x20/100=Rs. 1,94,400/- ``` ``` The Tribunal awarded an amount of Rs. 1,34,400/- and that is to be deducted. Therefore, the appellant is entitled an additional amount of Rs.60,000/- (Rupees Sixty Thousand Only) towards loss of disability. ``` ``` 6. As far as loss of earning is concerned, the Tribunal assessed the same for a period of three months. Considering the serious injuries sustained by the appellant including fracture, the appellant is entitled loss of earnings for a period of six months by fixing the monthly income as Rs.4,500/-. Then the amount will be ``` MACA.No.780 OF 2012 6 ``` Rs. 27,000/- (4500x6). Tribunal already granted an amount of Rs.10,500/- and that is to be deducted. Therefore, the appellant is entitled an additional amount of Rs.16,500/- (Sixteen Thousand Five Hundred Only) towards loss of earnings. ``` `7. Similarly, for extra nourishment, Tribunal` `awarded an amount of Rs.500/-. Considering the facts and circumstances, a further amount of Rs.1,000/(Rupees One Thousand Only) is allowed on that count.` ``` 8. Towards bystander’s expenses, an amount of Rs.2,500/- is awarded by the Tribunal. Another amount of Rs.1,500/- (Rupees One Thousand and Five Hundred Only) is also entitled by the appellant for bystander’s expenses. ``` `9. Towards pain and sufferings, the Tribunal` `awarded an amount of Rs. 15,000/-. Considering the serious nature of injuries sustained and the period of` MACA.No.780 OF 2012 7 ``` hopspitalisation, I think that an additional amount of Rs. 10,000/- (Rupees Ten Thousand Only) can be granted for pain and sufferings. ``` ``` 10. Similarly, for loss of amenities, no amount is awarded by the Tribunal. After hearing both sides, I find that, for loss of amenities an amount of Rs.15,000/- (Rupees Fifteen Thousand Only) can be granted. ``` ``` 11. The enhanced compensation entitled by the appellant can be summarised like this:- ``` ``` HeadAmount Compensation for disabilityRs.60,000/- Loss of earningsRs.16,500/- Loss of amenitiesRs.15,000/- Pain and sufferingsRs.10,000/- Bystanders’ expensesRs.1,500/- Extra nourishmentRs.1,000/- TotalRs.1,04,000/-/ ``` ``` Therefore, this appeal is allowed in part. The ``` MACA.No.780 OF 2012 8 ``` impugned award is modified and the appellant is entitled an enhanced compensation of Rs.1,04,000/- (Rupees One Lakh Three Thousand Only) with interest at the rate of 7.5% p.a, from the date of application till realisation. The respondent is directed to pay the enhanced compensation with interest. ``` ``` Sd/- ``` ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` avs ```