Divakaran v. Lonappan, Shoy & Oriental Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943 MACA NO. 1161 OF 2013** **AGAINST THE AWARD IN OPMV 1599/2007 DATED 14.02.2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER:** DIVAKARAN, S/O BHASKARAN NAIR PUTHENVEETIL HOUSE, MANGUTTIPADAM, MATTATHOOR. BY ADV SRI.V.BINOY RAM ## **RESPONDENTS/RESPONDENTS:** 1 LONAPPAN ELLIKKAL HOUSE, MATTATHOOR PO, THRISSUR DISTRICT PIN-680 684. 2 SHOY S/O.THOMAS KALLELI HOUSE, MANALAI DESOM, KODASSERI PO, THRISSUR DISTRICT, PIN-680 721. 3 THE MANAGER ORIENTAL INSURANCE COMPANY LTD., CHALAKUDY, THRISSUR DISTRICT, PIN-680 307. BY ADVS. SRI.BINNY THOMAS SRI.NAGARAJ NARAYANAN SRI.BINNY THOMAS SRI.SAIJO HASSAN SRI.TITUS MANI SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SRI.U.M.HASSAN SMT.P.PARVATHY SMT.SURYA P SHAJI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.1161 of 2013 ## **C.S.DIAS, J. ====================== MACA No.1161 of 2013 ====================== Dated this the 26[th] day of August, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1599/2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The concise case of the petitioner in the claim petition, relevant for the determination of the appeal is: On 14.8.2007, while the petitioner was riding a motor cycle bearing registration No.KL-8/D 2297 from Kodakara to Kodaly, when he reached Kuzhikani, another motor cycle bearing registration No.KL-8/AH 4341 (offending vehicle) ridden by the second respondent in a rash and negligent manner, hit the 3 MACA No.1161 of 2013 petitioner whereby he sustained injuries. The offending vehicle was owned by the first respondent and insured with the third respondent. The petitioner claimed that he was a ration shop dealer and getting a monthly income of Rs.5,000/-. The petitioner sustained fractures and injuries on his right foot. Therefore, the petitioner is entitled for compensation, which he quantified at Rs.2,00,000/-. 3. The respondents 1 and 2 filed a joint written statement, inter alia, contending that the claim petition was not maintainable. The accident was caused solely due to the negligence on the part of the petitioner. The petitioner influenced the Police, who have registered a false case against the second respondent. 4. The third respondent filed a written statement admitting that the offending vehicle had a valid insurance policy. However, the third respondent asserted that the second respondent rode the motor cycle without a valid driving licence. Therefore, there 4 MACA No.1161 of 2013 was violation of the insurance policy conditions. Hence, the third respondent was not liable to pay any amount. 5. The petitioner marked Exts A1 to A11 in evidence. The third respondent produced Ext B1 insurance policy in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the petitioner to realise an amount of Rs.44,300/- with interest @ 7.5% per annum from the date of petition till the date of realisation with proportionate costs. The third respondent was directed to pay the compensation and recover it from the first respondent – the owner of the offending vehicle. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.Binoy Ram V., the learned counsel appearing for the appellant, Sri.Saijo Hussan, the learned 5 MACA No.1161 of 2013 counsel appearing for the second respondent and Sri.Titus Mani Vettom, the learned counsel appearing for the third respondent. 9. The question that emanates for consideration in this appeal is whether the impugned award passed by the Tribunal is erroneous or not. 10. It is proved by Ext A3 final report that there was a collusion between the petitioner's motor cycle and the offending vehicle on 14.8.2007, due to the negligence on the part of the second respondent. Ext A2 wound certificate and Ext A4 discharge summary substantiates that the petitioner underwent treatment at Elite Mission Hospital, Thrissur for the period from 14.8.2007 to 18.8.2007. He also underwent a surgery on 14.8.2007. It is seen that he had suffered a head injury and fracture on his left clavicle, fracture metatarsal of III toe, fracture big toe, fracture distal 6 MACA No.1161 of 2013 phalanx of II toe and a crush injury on his right foot. The petitioner did not subject himself to a medical examination by a Medical Board. Instead, the appellant produced Ext A11 disability certificate issued by a Consultant in Orthopedic Civil Surgeon of the Government Taluk Headquarters Hospital, Chalakkudy dated 16.8.2011. It is to be borne in mind that the accident occurred on 14.8.2007, but the petitioner got himself examined only on 16.8.2011, i.e., after a period of four years. The Doctor who issued Ext A11 has certified that the petitioner has 10% whole body disability. 11. Although the Tribunal marked Ext A11, the same was not accepted in evidence as the document was marked subject to proof. The petitioner did not examine the Doctor who issued Ext A11. Therefore, the Tribunal declined to accept Ext A11 and found that the petitioner 7 MACA No.1161 of 2013 does not have any permanent disability of 10%. I do not find any error in the course adopted by the Tribunal because the petitioner was very well aware that Ext A11 was marked subject to proof. Despite the said objection, the petitioner did not take any effort to examine the Doctor. Hence, there is no material to substantiate that the petitioner has any permanent disability. Therefore, the petitioner is not entitled for any compensation under the head loss due to disability. ## **Notional Income** 12. The petitioner had claimed that he was a ration shop dealer and earning an amount of Rs.5,000/- per month. The Tribunal fixed the notional income of the petitioner at Rs.3,000/-. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional monthly income of a coolie worker for an accident in the year 2004 @ 8 MACA No.1161 of 2013 Rs.4,500/-. 14. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decision, I am of the considered opinion that the petitioner's notional income can safely be fixed at Rs.5,000/-, as claimed in the claim petition, taking note of the fact that he was a ration shop dealer and the accident occurred in the year 2007. ## **Loss of earnings** 15. In light of the refixation of the petitioner's notional income, I am of the opinion that the petitioner is entitled for compensation under the head 'loss of earnings' by a further amount of Rs.2,000/-. ## **Pain and suferings** 16. Taking into consideration Exts A2 wound certificate and A4 discharge summary, it is seen that the petitioner had suffered a head injury and also three fractures and a crush injury on his right foot. He was hospitalised for a period of four days and he also 9 MACA No.1161 of 2013 underwent a surgery. In the said circumstances, I am of the opinion that the petitioner is entitled for compensation under the head 'pain and sufferings' as claimed in the claim petition at Rs.25,000/- instead of Rs.15,000/- awarded by the Tribunal. ## **Other heads of claim** 17. With respect to other heads of claim, namely, transport expenses, damage to clothing, extra nourishment, bystander expenses, medical and miscellaneous expenses and loss of amenities, I find that the Tribunal has awarded reasonable and just compensation. 18. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decision, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of the compensation as modified and re-calculated above, and given in the table below for easy reference. 10 MACA No.1161 of 2013 |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings (total)|3,000/-|5,000/-| |2|Medical and miscellaneous|20,000/-|20,000/-| |3|Transportation expenses|500/-|500/-| |4|Pain and sufering|15,000/-|25,000/-| |5|Permanent disability|nil|nil| |6|Damage to clothing|nil|nil| |7|Extra nourishment|400/-|400/-| |8|Loss<br>of<br>amenities<br>and<br>conveniences etc|8,000/-|8,000/-| |9|Loss of earning power|nil|nil| ||Bystander's expenses|400/-|400/-| ||Total|47,300/-|59,300/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.12,000/- (Rupees twelve thousand only) with interest at the rate of 7.5% per annum from the date of petition till the date of realisation along with proportionate costs. The third respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The 11 MACA No.1161 of 2013 appellant/petitioner would be at liberty to move the Tribunal for withdrawal of the enhanced compensation. Needless to mention that after the third respondent deposits the enhanced compensation, it would be at liberty to recover the said amount from the first respondent. Sd/- **C.S.DIAS, JUDGE** rmm