Jaya Mathew v. Achan Kunju Vekachalil Puthen Veedu, George Thankachan Vattavila Veedu, and The United India Insurance Company Limited

1 MACA 2093/2013 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** ## **MACA.No.2093 OF 2013** **AGAINST THE AWARD IN OPMV 294/2006 DATED 11-09-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** **JAYA MATHEW W/O.BABU, CHARUVILA PUTHEN VEEDU, MEEYYANNOOR, POOYAPPALLY, KOLLAM.** ## **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT/S:** - **1 ACHAN KUNJU VEKACHALIL PUTHEN VEEDU, NEDUTHERI, THALAVOOR P.O., KOLLAM DISTRICT.691514** - **2 GEORGE THANKACHAN VATTAVILA VEEDU, POOYAPPALLY P.O., KOLLAM DISTRICT.691537** - **3 THE UNITED INDIA INSURANCE COMPANY LIMITED KOLLAM - 691 001.** **R3 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 2093/2013 ## **C.S.DIAS, J. ====================== MACA No.2093 of 2013 ====================== Dated this the 16[th] day of September, 2020.** ## **JUDGMENT** The appellant is the claimant in OP (MV) No.294/2006 on the file of the Motor Accident Claims Tribunal, Kollam. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of a motor accident that took place on 8.1.2006. The parties are, for the sake of convenience, referred to as per their litigate status in the appeal. 2. It is the case of the appellant that while she was travelling in an auto rickshaw bearing registration No. KL-2/G-3221, the second respondent, the driver of the auto rickshaw, drove the vehicle in a rash and negligent manner and suddenly turned the vehicle to the right side and 3 MACA 2093/2013 the auto rickshaw turned a turtle and capsized. The appellant sustained serious injuries. The first respondent is the owner of the auto rickshaw and the third respondent is the insurer of the vehicle. 3. Accordingly, the appellant filed the claim petition before the Tribunal, claiming a total compensation of Rs.2,50,000/- under various heads. 4. The respondents 1 and 2 were set ex parte. The third respondent filed a written statement, inter alia, contending that the claim petition was not maintainable, and that the accident did not occur due to the negligence of the second respondent, and the second respondent did not have a valid driving licence to drive the auto rickshaw. There were four passengers in the auto rickshaw. Hence, there were violations of the policy conditions. The amounts claimed by the appellant under the various heads were excessive and exorbitant. 5. The appellant's husband, who was a passenger in the auto rickshaw also sustained 4 MACA 2093/2013 injuries in the same accident. He also preferred OP(MV) 307/2006 before the Tribunal. The Tribunal consolidated and jointly tried both the claim petitions . 6. Neither party adduced any oral evidence. The appellant and the petitioner in OP(MV) No.307/2006 produced Exts.A1 to A14. The 3[rd] respondent produced Exts.B1 letter. 7. After considering the pleadings and materials on record, the Tribunal by the impugned common award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.66,050/- as compensation from the respondents, jointly and severally, with interest at the rate of 7.5% from the date of petition till the date of realisation. The appellant was also permitted to withdraw a cost of Rs 1,000/-. The third respondent was permitted to pay the amount and recover it from the first respondent. 8. The comparative table of compensation that was claimed by the appellant and that was 5 MACA 2093/2013 ## awarded by the Tribunal is as follows:- |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Loss of earning (Total)|25,000/-|Nil| |2|Medical and miscellaneous<br>expenses and bystander's<br>expense|50,000/-|31,250/-| |3|Bystander expenses|Nil|800/-| |4|Transportation expenses|5,000/-|1,000/-| |5|Extra nourishment|5,000/-|1,000/-| |6|Damage to cloth and<br>article|5,000/-|Nil| |7|Compensation for pain and<br>suffering|Nil|20,000/-| |8|Loss of amenities and<br>convenience etc.(9-11)|1,60,000/-|12,000/-| ||Total|2,50,000/-|66,050/- rounded as Rs<br>66,500/- (Rupees<br>Sixtysix Thousand Five<br>Hundred only)| 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, under the various heads mentioned above, the appellant has preferred this appeal. 10. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the third respondent. 11. The sole question that emerges for consideration in this appeal is whether the appellant is entitled for enhancement of 6 MACA 2093/2013 compensation. 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. When the appeal was taken up for consideration, the learned counsel appearing for the appellant contended that the appellant was principally aggrieved by the disallowing of the claim under the head - loss of earning. 14. The Tribunal in paragraph 11 of the common award found that the appellant had not produced any material to establish that the appellant suffered any loss of earning. Therefore, 7 MACA 2093/2013 the said claim was disallowed. 15. The appellant had produced Annexure A2 document along with I.A No.1/2020 in the appeal. The application was allowed and Annexure A2 document was accepted in evidence and marked as Ext A16. 16. In Ext A16 certificate, issued by the Headmistress, Government Lower Primary School, Pallimon, it is certified that the appellant had availed leave without allowance for a period of 81 days from 9.1.2006 to 30.3.2006 on medical grounds. Therefore, the appellant suffered a monitory loss of Rs 25,215/-. 17. Admittedly, the accident occurred on 8.1.2006. The appellant availed leave, as mentioned above, from 9.1.2006 to 30.3.2006. In view of Ext A16 issued by the Headmistress of the Government School, where the appellant was working, I am of the considered opinion that the appellant is entitled for loss of earning during the aforesaid period for the amount quantified in Ext 8 MACA 2093/2013 A16 because she availed leave only because of the accident. 18. On an overall re-appreciation of the pleadings and evidence on record, I am of the definite opinion that the compensation awarded by the Tribunal under the other heads of claim are just and reasonable. I do not find any ground or circumstance to enhance the amounts claimed under the other heads of claim. 19. In the result, the appeal is allowed, in part, by enhancing the compensation awarded by the Tribunal by a further amount of Rs.25,215/(Rupees Twentyfive Thousand Two Hundred and Fifteen only) under the head - loss of earning. The 3[rd] respondent shall deposit the additional compensation before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment with proportionate costs, after deducting the liability, if any, of the appellant towards balance court fee and legal benefit fund, failing which the third respondent shall be liable to 9 MACA 2093/2013 pay interest on the aforesaid amount at the rate of 9% per annum from the date of this judgment till the date of deposit of the amount. On such deposit, the Tribunal shall disburse the compensation in deposit and the additional compensation, in accordance with law. **Sd/-** Sks/16.9.2020 **C.S.DIAS JUDGE**