K. P. Sadasivan v. Helena Neelambaran and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943 ``` ``` MACA NO. 368 OF 2011 ``` ``` AGAINST THE AWARD DATED 29.04.2010 IN OP(MV)NO.1888/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR ``` ## `APPELLANT/PETITIONER:` ``` K.P.SADASIVAN, AGED 55 YEARS, S/O PARAPANICKER, KARIMATTATH AMBILINILAYAM, PULLUVAZHY P.O,PERUMBAVOOR. ``` ``` BY ADVS.SRI.K.SUNILKUMAR SMT.BEENA DEVASSY ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1MRS. HELENA NEELAMBARAN, W/O NEELABARAN, VIRUTHIYIL HOUSE, KEDAMANGALAM,NORTH PARAVUR P.O, PIN- 683 513. ``` ``` 2SANIF KHAN, S/O PEERU MUHAMMED KHAN, MANGASSERY HOUSE, KANJIRAPPILLY KARA, KANJIRAPPILY VILLAGE-686 507. ``` - `3 UNITED INDIA INSURANCE CO.LTD BRANCH OFFICE,DAIVASAHAYAM BUILDING,, K.K ROAD,PONKUNNAM - 686 506.` - `4 THE ORIENTAL INSURANCE CO.LTD, P.B NO. 49,PATTAMANA BUILDING, R.S ROAD,PUMP JUNCTION, ALUVA-683 101.` ``` BY ADV SRI.PMM.NAJEEB KHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.368/2011 -:2:- Dated this the 9[th] day of December, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.1888/2005 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 11.07.2005. It was his case that, on the above day, while he was riding his scooter bearing registration No.KL-7/AF-5363 along the Muvattupuzha-Perumbavoor road, when he reached Pulluvazhy Junction, a car bearing registration No.KL-7/AX-2629(car), driven by the second respondent in a rash and negligent manner, knocked down the appellant. The appellant sustained serious injuries and was treated at Sanjoe Hospital, M.A.C.A.No.368/2011 -:3:- Perumbavoor, as an inpatient for a period of 20 days. The appellant was the Manger (Electrical Maintenance and MSC) in Cochin Minerals and Rutile Limited, Edayar, and was drawing a monthly salary of Rs.17,566/-. The car was owned by the first respondent and insured with the third respondent. The scooter was insured with the fourth respondent. Hence, the appellant claimed a compensation of Rs.1,75,698/from the respondents, but the claim was limited to Rs.1,50,000/-. 3. The respondents 1, 2 and 4 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement, admitting that the car had a valid insurance policy. However, the third respondent disputed that the accident occurred due to the negligence of the second respondent. Similarly, the third respondent also disputed the age, income and occupation of the M.A.C.A.No.368/2011 -:4:- appellant. 5. The appellant examined himself and a doctor as PWs.1 and 2, and marked Exts.A1 to A11 in evidence. The third respondent produced the insurance policy which was marked as Ext.B1. 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 third respondent an amount of Rs.72,648/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. K. Sunil Kumar, the learned counsel appearing for the appellant/petitioner, Sri. PMM. Najeeb Khan, the learned counsel appearing for the third respondent-insurer and Smt. Latha Susan Cherian, the learned counsel appearing for the fourth M.A.C.A.No.368/2011 -:5:- respondent-insurer of the scooter. 9. The sole 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.A6 chargesheet filed by the Kuruppampady police in Crime No.260/2005 proves that the accident occurred due to negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to the contrary to discredit Ext.A6 chargesheet. The third respondent has not proved that the second 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. M.A.C.A.No.368/2011 -:6:- ## **Income of the appellant:** 11. The appellant had stated that he was working as the Manger in (Electrical Maintenance and MSC) in the Cochin Minerals and Rutile Limited, Edayar, and drawing a monthly salary of Rs.17,566/-. The Tribunal, after deducting the standard deductions and income tax, fixed the monthly income of the appellant at Rs.15,631/-. Accordingly, the Tribunal awarded the appellant an amount of Rs.46,893/- towards ‘loss of earnings’ for a period of three months. I find the fixation of monthly income and the ‘loss of earnings’ to be reasonable and just. ## **Disability:** 16. The appellant had produced Ext.A11 disability certificate. It is seen that the appellant had not undergone any further treatment, subsequent to his initial period of hospitalisation from 11.07.2005 to 30.07.2005. Even though PW2 was examined, he also M.A.C.A.No.368/2011 -:7:- could not establish that the appellant had sustained any ‘permanent disability’. The Tribunal, for the reason that the appellant had not gone for any follow up treatment, other than for collecting the disability certificate on 14.12.2005, and does not have permanent disability or non-union or mal-union of any bone, arrived at a conclusion that the appellant has no functional disability. 17. On a re-appreciation of Ext.A11 treatment certificate and the oral testimony of PW2, I found that the appellant has no ‘functional disability’ as per the mandate in **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)]. Therefore, I confirm the finding of the Tribunal, that the appellant has no ‘functional disability’ entitling him to compensation for loss due to disability. ## **Bystander expenses:** 18. It is proved that the appellant was treated as M.A.C.A.No.368/2011 -:8:- an inpatient for a period of 20 days i.e., from 11.07.2005 to 30.05.2007. The Tribunal has awarded only an amount of Rs.2,000/- under the said head, which is too meager. 19. Considering the fact that the accident occurred in the year 2005, I award the appellant an amount of Rs.300/- per day for a period of 20 days, which works out to Rs.6,000/- i.e., a further enhancement by Rs.4,000/-. ## **Extra nourishment:** 20. Although the appellant had claimed an amount of Rs.5,000/- towards 'extra nourishment', the Tribunal has awarded only an amount of Rs.1,000/-. Admittedly, the appellant was treated as an inpatient for a period of 20 days. Therefore, I award him an amount of Rs.200/- per day for a period of 20 days, which comes to Rs.4,000/- i.e., a further enhancement by Rs.3,000/-. M.A.C.A.No.368/2011 -:9:- ## **Pain and sufferings and loss of amenities:** 21. The appellant had claimed an amount of Rs.30,000/- under the head ‘pain and sufferings’ and Rs.20,000/- under the head ‘loss of amenities’. The Tribunal awarded an amount of Rs.14,000/- and Rs.8,000/-, respectively under the above said heads. 22. On a consideration of the fact that the appellant was treated as an inpatient for a period 20 days, that he had suffered a compressed fracture of his vertebra and that he was indisposed for a period of three months, I enhance the compensation by a further amount of Rs.6,000/- under the head ‘pain and sufferings’ and a further amount of Rs.7,000/- under the head ‘loss of amenities’. 23. 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 M.A.C.A.No.368/2011 -:10:- enhancing the compensation by a further amount of **Rs.20,000/-** (Rs.4,000/- under the head ‘bystander expenses’, Rs.3,000/under the head ‘extra nourishment’, Rs.6,000/- under the head ‘pain and sufferings’ and Rs.7,000/- under the head ‘loss of amenities’). The third respondent/insurer is ordered to deposit the enhanced compensation of **Rs.20,000/-** with interest at the rate of 8% per annum from the date of petition till the date of deposit and a cost of Rs.7,000/- within a period of sixty 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 deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/09.12.2021 //True copy/ P.A.To Judge