Ginosh Venu v. Johnson Samuel

MACA NO. 1502 OF 2009 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18[TH] DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943 MACA NO. 1502 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 2315/2005 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM** ## **APPELLANT/S:** GINOSH VENU, SON OF VENU,ILLATHPARAMBIL HOUSE, PALLILAMKARA, FOUR CENT COLONY,KALAMASSERY. BY ADV SRI.K.K.MOHAMED RAVUF ## **RESPONDENT/S:** 1 JOHNSON SAMUEL, VADDAKKE VETTIL HOUE, AL-AMEEN NAGAR, EDATHALA P.O., ALUVA. 2 THE DISTRICT INSURANCE OFFICER KERALA STATE INSURANCE DEPARTMENT, ERNAKULAM. BY ADV GOVERNMENT PLEADER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1502 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2315/2005 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. 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 17.10.2005. It was his case that, on the above said date, while he had reached Kalamassery 3[rd] bridge, a motor cycle bearing registration No.KL-7/AJ-902, driven by the 1[st] respondent in a rash and negligent manner, hit the appellant. The appellant fell on the ground and sustained serious injuries. He was treated as inpatient for a period of seven days at the Medical Trust Hospital, Ernakulam from 18.10.2005 to 25.10.2005. The appellant was a lorry cleaner by profession and was earning a monthly income of Rs.3,500/-. The motor cycle was insured with the 2[nd] respondent. Hence, the appellant claimed a total compensation of Rs.1,72,500/- from the respondents, but limited the claim to Rs.1,50,000/-. MACA NO. 1502 OF 2009 3 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. 4. The 2[nd] respondent had filed a written statement contending that the accident occurred due to the negligence of the appellant. The 2[nd] respondent also disputed the age, income and occupation of the appellant. Nevertheless, the 2[nd] respondent had admitted that the motor cycle had a valid insurance coverage. Hence, the 2[nd] respondent prayed that the claim petition be dismissed. 5. The appellant had produced and marked Exts.A1 to A7 in evidence. The respondents did not let in any contra evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 2[nd] respondent an amount of Rs.30,200/- with interest. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 8. Heard Sri.Mohammed Rauf, the learned counsel appearing for the appellant/petitioner and the learned Government Pleader appearing for the 2[nd] respondent/insurer. MACA NO. 1502 OF 2009 4 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A3 charge sheet submitted by the Kochi City Traffic Police in crime No.4082/2005 substantiates that the accident occurred due to the negligence of the 1[st] respondent. The respondents have not let in any evidence to discredit Ext.A3 charge sheet. Admittedly, the 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the motor cycle. The 2[nd] respondent has not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a lorry cleaner by profession and earning a monthly income of Rs.3,500/-. 12. The Tribunal, for want of materials, fixed the notional monthly income of the appellant at Rs.2,000/-. MACA NO. 1502 OF 2009 5 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005 and that the appellant had claimed that he was earning a monthly income of Rs.3,500/-, I fix the notional monthly income of the appellant at Rs.3,500/-. ## **Loss of earnings** 15. It is proved by Ext.A5 wound certificate and Ext.A6 discharge summary that the appellant was treated as an inpatient at the Medical Trust Hospital for a period of seven days from 18.10.2005 to 24.10.2005. The appellant had sustained a fracture of the left pareito occipital region with haematoma. He also had bleeding from the left ear and mouth and contussion and abrassion on the hip. 16. Even though he had claimed that he had loss of earnings for a period of four months, the Tribunal has awarded MACA NO. 1502 OF 2009 6 compensation for loss of earnings only for two months. 17. Considering the nature of injuries that the appellant had sustained, I hold that the appellant was indisposed for a period of four months. 18. Taking into account the serious injuries sustained by the appellant, that he was treated as an inpatient for a period of seven days, that he had a fracture of his skull and that he being a lorry cleaner by profession, I hold that he was indisposed for a period of four months. 19. In view of the refixation of the notional monthly income of the appellant at Rs.3,500/-, I refix the compensation for loss of earnings at Rs.14,000/- instead of Rs.4,000/awarded by the Tribunal i.e., an enhancement of Rs.10,000/-. ## **Bystander expenses** 20. It is on record, as evidenced by Ext.A6 discharge summary, that the appellant was treated as an inpatient for a period of seven days. Even though he had claimed an amount of Rs.2,000/-, the Tribunal declined to award any amount under the said head. The course adopted by the Tribunal is wrong. 21. Taking into account the fact that the appellant was MACA NO. 1502 OF 2009 7 treated as an inpatient for a period of seven days, I award him bystander expenses at Rs.2,000/- as claimed in the claim petition. ## **Medical expenses** 22. The appellant had produced Ext.A7 series of medical bills for an amount of Rs.10,346.51. The Tribunal for the reason that the appellant had not produced material for payment of Rs.1,400/-, reduced the amount to Rs.8,950/-. This according to me is unjustifiable because the total expenditure incurred by the appellant was Rs.10,346/-, which the Tribunal ought to have awarded. Hence, I award the appellant the entire amount of Rs.10,346/- i.e., an enhancement by Rs.1,400/-. ## **Loss of amenities** 23. It is on record that the appellant had sustained fracture to his skull with haematoma. He was treated as an inpatient for a period of seven days and was indisposed for a period of four months. 24. Although the appellant had claimed an amount of Rs.15,000/- towards loss of amenities, the Tribunal has awarded only an amount of Rs.7,000/-, which according to me MACA NO. 1502 OF 2009 8 is on the lower side. 25. Considering the nature of injuries sustained by the appellant, that he was treated as inpatient for a period of seven days, that he was indisposed for a period of four months and the fact that he was a lorry cleaner by profession, I hold that he is entitled for further amount of Rs.8,000/- towards 'loss of amenities' i.e., a total amount of Rs.15,000/- as claimed in the claim petition. 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.21,400/- (i.e., Rs.10,000/- towards loss of earnings, Rs.1,400/- towards medical expenses, Rs.8,000/- towards loss of amenities and Rs.2,000/- towards bystander expenses) with interest @ 7.5% per annum from the date of petition till the date of realisation, after deducting interest for a period of 268 days, i.e., the period of delay in preferring the appeal and as ordered by this Court on 22.09.2021 in C.M Appl.No.1/2009, and a cost of Rs.5,000/-. 9 MACA NO. 1502 OF 2009 The 2[nd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the amount to the appellant in accordance with law. **C.S.DIAS, JUDGE** rkc