K.E. Prasad v. Mathew Sunny Meckamalil and The Oriental Insurance Co. Ltd.

1 MACA.No.122 OF 2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** ## **MACA.No.122 OF 2014(C)** **AGAINST THE AWARD IN OPMV 418/2007 DATED 20-05-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANT/S:** **K.E. PRASAD, S/O.ITTRA KOLLATHANATHU HOUSE, OONJAPARA KARA, KEERAMPARA VILLAGE.** ## **BY ADV. SRI.SABU FRANCIS** ## **RESPONDENT/S:** **1 MATHEW SUNNY MECKAMALIL HOUSE, NADUKANI PO, KOTHAMANGALAM, PIN686 691** - **2 THE ORIENTAL INSURANCE CO. LTD. KOTHAMANGALAM BRANCH, REPRESENTED BY ITS MANAGER P.B.NO.50, ELANJICKAL PLAZA, CHURCH VIEW JUNCTION KOTHAMANGALAM 686 691** **R1-2 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING:** 2 MACA.No.122 OF 2014 ## **C.S.DIAS, J. ====================== MACA No.122 of 2014 ====================== Dated this the 8[th] day of March, 2021** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.418/2007 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. 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 petitioner had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in a motor accident that occurred on 19.4.2006. 3. The bare facts, for the disposal of the appeal, in the claim petition was that on 19.4.2006, while the 3 MACA.No.122 OF 2014 petitioner was riding a motor cycle bearing registration No.KCE-5356 through the Keerampara – Oonjappara public road, a car bearing registration No.KRV-4115 (offending vehicle), driven by the first respondent in a rash and negligent manner and at an excessive speed, hit the motor cycle riden by the petitioner. The petitioner sustained serious injuries. The accident occurred due to the rash and negligent act of the first respondent. The offending vehicle was insured with the second respondent. Hence, the respondents 1 and 2 are jointly and severally liable to pay the petitioner compensation, which he quantified at Rs.7,70,000/-. 4. The first respondent was absent and set ex parte. 5. The second respondent filed a written-statement refuting the allegations in the claim petition. However, the second respondent admitted that it had issued a valid insurance policy in favour of the offending vehicle. The second respondent denied the involvement of the offending vehicle in the accident. It was also contended that the 4 MACA.No.122 OF 2014 amount sought for in the claim petition was excessive and exorbitant. The second respondent prayed that the claim petition be dismissed. 6. Two witnesses were examined on the side of the petitioner and Exts A1 to A15 were marked through them. The respondents did not adduce any evidence. 7. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to recover an amount of Rs.4,37,200/- with interest at the rate of 7% per annum from the date of original petition till the date of realisation and proportionate costs. The second respondent was directed to deposit the compensation amount. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 9. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the second respondent/second respondent – the Insurance Company. 5 MACA.No.122 OF 2014 10. The question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 11. 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. 12. Ext A5 charge-sheet filed by the Police in crime No.256/2006 of the Kothamangalam Police Station substantiates that the accident was caused due to the negligence on the part of the first respondent, who was charged for committing the offences punishable under Secs 279, 337 and 338 of the Indian Penal Code. The second 6 MACA.No.122 OF 2014 respondent had admitted that the offending vehicle was covered by a valid insurance policy. Exts A6 to A10 records substantiate that the petitioner was treated as an inpatient for 47 days in Chazhikattu Hospital, Thodupuzha. Ext A15 proceedings issued by the Welfare Fund Inspector proves that the petitioner was a toddy tapper and was getting a monthly income of Rs.6,500/-. 13. The principal area of dispute in the appeal is with regard to the disability of the petitioner fixed at 20% by the Tribunal. As per Ext A12 disability certificate, issued and proved by PW1, it is certified that the petitioner has a permanent disability of 29%. However, the Tribunal after seeing the petitioner, came to a conclusion that as the petitioner's the disability was not assessed by a Medical Board consisting of at least three Doctors of different specialties, but only by one Doctor, the petitioner's whole disability is only at 20%. 14. It is trite, as held by the Hon'ble Supreme Court in **Union of India and another vs. Talwinder Singh** 7 MACA.No.122 OF 2014 **[(2012) 5 SCC 480],** that Courts should not ordinarily interfere with the opinion given by the experts. 15. PW1, by Ext A12, has certified the petitioner's disability at 29%. The respondents have not let in any contra evidence. The finding of the Tribunal that, as Ext A12 is issued only by one Doctor instead of three Doctors, the disability certified by PW1 cannot be accepted, is erroneous and unsustainable in law. As long as there is no contra evidence or any objection raised by the respondents to the assessment of disability, the Tribunal ought to have accepted the findings in Ext A12. In the said circumstances, I am of the firm opinion that the petitioner's disability is only to be fixed at 29%. Consequently, the petitioner is entitled to compensation under the head 'loss due to disability' of Rs.3,16,680/- i.e., an enhancement by Rs.82,680/-. 16. The other area of dispute is with regard to the transportation bills. Although the petitioner had produced Ext A11 taxi bills to claim an amount of Rs.9,880/- towards 8 MACA.No.122 OF 2014 transportation expenses, the Tribunal had fixed the transportation charges at Rs.4,000/-. On a perusal of the claim petition, it is seen that the petitioner had only claimed an amount of Rs.5,000/- towards transportation expenses. In the said circumstances, the finding of the Tribunal that the petitioner is only entitled to an amount of Rs.4,000/- under the head 'transportation expenses' cannot be found fault with. 17. The next contention is with regard to the proportionate costs that the petitioner is entitled to. According to the learned counsel appearing for the appellant, the petitioner had amended the claim petition and paid a court-fee of Rs.5,372.50/-, as provided under Rule 397(1) of the Kerala Motor Vehicles Rules, 1989. Therefore, the proportionate costs fixed at Rs.1,372/- is erroneous. Hence, the petitioner is entitled for enhancement of proportionate costs. 18. I find sufficient force in the said contention because it is seen from the claim petition that the 9 MACA.No.122 OF 2014 petitioner had paid an amount of Rs.5,372.50/- as court-fee. Certainly when the Tribunal has awarded proportionate costs, the petitioner is entitled for the above said amount paid as court-fee as costs. Though the petitioner filed IA No.2679/2013 seeking enhancement of the proportionate court-fee, the Tribunal by its order dated 20.7.2013 rejected the application. This, according to me, is wrong because it is evident from the court-fee column, the petitioner has paid an amount of Rs.5,372.50/- as court-fee. Hence, the petitioner is entitled for enhancement of proportionate costs in tune with the court-fee paid. 19. With respect to the other heads of claim, namely, loss of earnings, bystander expenses, extra nourishment, medical expenses, pain and sufferings and loss of amenities, I find that the Tribunal has awarded reasonable and just compensation. 20. On an overall reappreciation of the pleadings, materials on record and the law referred to in the aforecited decisions, I am of the considered opinion that 10 MACA.No.122 OF 2014 the petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |SI<br>No|Head of claim|Amount claimed<br>(in rupees)|Amount<br>awarded by the<br>Tribunal(in<br>rupees)|Amounts<br>modified and re<br>calculated by<br>this Court<br>(in rupees)| |---|---|---|---|---| |1|Loss of earnings|1,44,000/-|65,000/-|65,000/-| |2|Pain and sufferings|30,000/-|30,000/-|30,000/-| |3|Loss of amenities|25,000/-|20,000/-|20,000/-| |4|Bystander expenses|5,000/-|4,700/-|4,700/-| |5|Extra nourishment<br>charges|15,000/-|5,000/-|5,000/-| |6|Transportation<br>charges|5,000/-|4,000/-|4,000/-| |7|Medical expenses|50,000/-|74,484/-|74,484/-| |8|Compensation<br>for<br>permanent disability|1,00,000/-|2,34,000/-|3,16,680/-| ||Total claim||4,37,184/-|5,19,864/-/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.82,680/- (Rupees Eighty Two Thousand Six Hundred and Eighty only) with interest @ of 7% p.a on the enhanced compensation from the date of petition till the date of realisation and proportionate costs, which shall include the 11 MACA.No.122 OF 2014 actual court-fee paid in the claim petition, i.e., Rs.5,372.50/-. The second respondent shall deposit the enhanced compensation and the balance proportionate costs towards court-fee, within a period of two months from the date of receipt of a certified copy of the judgment. The disbursement of compensation to the appellant/petitioner shall be done, in accordance with law. **Sd/-** **C.S.DIAS** **JUDGE** **SKS/8.3.2021**