K. P. Vinod v. K. J. Antony and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 ``` ## `MACA NO. 2056 OF 2014` ``` AGAINST THE ORDER/JUDGMENT IN O.P (MV) NO.1104/2010 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## `- APPELLANT/PETITIONER :` ``` K.P.VINOD S/O. PETER, KURISINGAL HOUSE, SAUDI, MUNDAMVELI P.O., COCHIN - 682 007. BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM ``` ## `- RESPONDENTS/REPONDSENTS :` ``` 1K.J.ANTONY S/O. JOSEPH K.A, DOOR NO. 12/350 (1/270), KANNAMALI HOUSE, KATTIPARAMBU, CHELLANAM, COCHIN - 682 0028. 2UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE 3, SHARANYA, HOSPITAL ROAD, COCHIN - 682 011. 3THE ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, PALAKKAT BUILDING, MARKET JUNCTION, THRIPUNITHURA - 682 301. ``` ``` BY ADVS. SRI.R.AJITH KUMAR 12884 SRI.P.MURALEEDHARAN SMT.K S SANTHI, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.2056 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 17[th] day of October, 2022** This appeal is filed challenging an award passed by Additional Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 06.10.2012 in O.P.(MV) No.1104 of 2010. In the above original petition, the Tribunal has awarded a compensation of Rs.3,67,783/-. The 2[nd] respondent, insurer was directed to pay the same with interest at the rate of 9% per annum from 23.07.2010, the date of filing of the original petition till the date of deposit. 2. The petitioner averred in the Original Petition that he had sustained injuries in a motor accident occurred at 9.45 pm on 24.04.2010, when a motor cycle bearing Registration No.KL-43/9323 hit against the motor cycle bearing Registration No.KL-7/AL 3842 ridden by him at Manassery Church. It is also averred that the accident was occurred due to the rash and negligent riding of the offending motor cycle by its rider who is arrayed as the 1[st] respondent in the original petition seeking compensation. ``` MACA No.2056 of 2014 ``` ``` 3 ``` 3. The 1[st] respondent himself was the registered owner of the offending motor cycle and the 2[nd] respondent, its insurer. Alleging negligence on the part of the 1[st] respondent and claiming a sum of Rs.5,00,000/-, as compensation the Original Petition was filed before the Tribunal. 4. The 2[nd] respondent entered appearance and filed written statement admitting insurance coverage of the motor cycle bearing No.KL 43/9323 as on date of the accident. But the negligence on the part of the 1[st] respondent and the quantum claimed as compensation were disputed. The third respondent had also filed written statement admitting insurance coverage of the motor cycle bearing registration No.KL7/AL 3842 as on date of accident. According to the 3[rd] respondent, the accident was occurred due to the rash and negligent riding of the motor cycle bearing Registration No.KL 43/9323 by the petitioner himself and seeks for exoneration from liability to indemnify the insured. 5. Documentary evidence was adduced by the petitioner and those were marked as Exts.A1 to A9 and Ext.C1. Evidence of any nature was not adduced by the respondents. The Tribunal appreciated ``` MACA No.2056 of 2014 ``` ``` 4 ``` the above evidence and found that the petitioner, is entitled to get compensation from respondents 1 and 2. The compensation payable is arrived at as Rs.3,67,783/- and the 2[nd] respondent, insurer was directed to deposit the same with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. 6. It is urged by the learned counsel for the petitioner that accident being occurred in the year 2010, in view of the fixation of monthly income by the Apex Court in _**Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd**_ [(2011) 13 SCC 236], fixation of a proportionate sum of Rs.7,500/- is just and proper. According to her, the Tribunal is unjustified for a fixation of monthly income notionally as Rs.4,500/- and calculating compensation for loss of earnings by fixing three months as the period for which the petitioner had lost earning. 7. According to the learned counsel the petitioner had sustained serious injuries and overlooking those, the compensation was assessed by the Tribunal and granted under various heads. The learned counsel has also pointed out that the compensation for ``` MACA No.2056 of 2014 ``` ``` 5 ``` permanent disability was assessed on the basis of the monthly income fixed notionally as Rs.4,500/- and therefore, it falls on the lower side. The learned counsel has conceded that the multiplier and percentage of disability have been taken by the Tribunal correctly. 8. This Court finds that the accident in the case on hand was occurred in the year 2010. The Apex Court in _**Ramachandrappa**_ supra had taken Rs.4,500/- as the monthly income in the case of a coolie worker, who had met with a motor accident in the year 2004 and therefore, this Court is justified in taking Rs.7,500/- being a sum reasonable for the year 2010 and the compensation for loss of earnings and permanent disability are calculated on its basis. 9. The following are the injuries sustained by the petitioner in the motor accident: - “1. Near total amputation 1, 2, 3, 4 toes through metatarsal left leg foot; 2. Near total amputation through M.T.handing on lateral aspect of 5[th] metatarsal left; 3. Crushed and contaminated wounds left leg; 4. Multiple injuries.” 10. In the nature of injuries, this Court finds justification in taking 5 months’ period for assessment of compensation for loss of ``` MACA No.2056 of 2014 ``` ``` 6 ``` earnings. Compensation under the above head, if assessed with the modified monthly income of Rs.7,500/- and the period for which, he suffered loss of income as 5 months, Rs.37,500/- (Rs.7,500 x 5) is payable. The Tribunal has already awarded Rs.13,500/- and therefore, the petitioner will get Rs.24,000/- additionally. Under the head bystanders expenses, the Tribunal had taken Rs.200/- for 31 days. The accident being occurred in the year 2010, this Court is inclined to fix Rs.250/- per day. When Rs.250/- is taken for 31 days, the compensation payable for bystanders expenses will come to Rs.7,750/-. The Tribunal has already awarded Rs.6,200/- and therefore, Rs.1,550/- is payable additionally. Under the head extra nourishment and damages to clothing, this Court is inclined to grant Rs.1,000/- and Rs.500/- respectively as additional compensation. Under the head pain and sufferings, this Court finds that Rs.25,000/granted by the Tribunal is too low and therefore is inclined to modify the same to Rs.40,000/- so that Rs.15,000/- is payable to the petitioner additionally. Under the head loss of amenities and enjoyment in life Rs.12,500/- was awarded by the Tribunal. That amount being meagre and inadequate, this Court is inclined to modify ``` MACA No.2056 of 2014 ``` ``` 7 ``` it to Rs.20,000/- and thus, Rs.7,500/- is payable additionally. Compensation for disability when re-assessed on the basis of the monthly income modified as Rs.7,500/- and the other factors adopted by the Tribunal maintained, Rs.3,82,500/- is found payable. Rs.2,29,500/- being the amount awarded by the Tribunal, Rs.1,53,000/- is payable additionally. In the above modification and reassessment Rs.2,02,550/- (Rupees Two lakhs two thousand five hundred and fifty only) is payable to the petitioner additionally. The said amount would carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 11. This Court has ordered on 07.01.2022 that the 2[nd] respondent is not liable to pay interest for 539 days, being the delay occurred in filing the appeal. 12. The 2[nd] respondent having been proved as the insurer of the offending vehicle shall pay the original sum stands awarded, with interest fixed by the Tribunal for the sum (if not already paid) and the sum arrived at in the appeal on hand as additional compensation with interest fixed as above from the date of the petition till the date of realization, excluding 539 days for which the ``` MACA No.2056 of 2014 ``` ``` 8 ``` filing of the appeal was delayed, within a period of two months from the date on which a certified copy of this judgment is received by it. MACA stands allowed accordingly. Sd/- **MARY JOSEPH SMA JUDGE**