Kuriachan v. Siby Mathew (Deleted) and Sunny John and The New India Assurance Co. Ltd. (MACA No. 916 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 1ST DAY OF JULY 2016/10TH ASHADHA, 1938** **MACA.No. 916 of 2014 ----------------------** **OP(MV) 738/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 16-02-2013** **.....** **APPELLANT(S)/PETITIONER:** **-----------------------** **KURIACHAN, S/O. PATHROSE, PARRAMBATHUKUZHAKKEKARA HOUSE, EZHAKKARANADU KARA, MANIED VILLAGE, ERNAKULAM DISTRICT.** **BY ADVS.SRI.MATHEW JOHN SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** - **1. SIBY MATHEW,S/O. MATHEW, KAKKATTUKKUDY HOUSE,ADIMALY, ANAVIRATTY POST, MANNAMKANDOM VILLAGE. (DELETED)** **2. SUNNY JOHN,** - **NIRAPPUMYALIL HOUSE, KOOTHATTUKULAM POST - 686 662, KOOTHATTUKULAM, ERNAKULAM DISTRICT.** **3. THE NEW INDIA ASSURANCE CO. LIMITED, MUVATTUPUZHA BRANCH - 686 661.** - **RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DTD.2.3.2016 IN C.M.APPL. 10862014 IN MACA.916/2014** **R3 BY ADVS. SRI.M.JACOB MURICKAN** **SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **P.N.RAVINDRAN & A.MUHAMED MUSTAQUE, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~** ## **M.A.C.A.No.916 of 2014** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~** ## **Dated this the 1[st] day of July, 2016** ## **J U D G M E N T** ## **P.N.Ravindran, J.** The appellant is the claimant in O.P.(MV).No.738 of 2007 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha a petition filed by him under section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained by him in a motor accident that took place on 21.4.2007. The claimant contended that while he was riding his motor cycle a lorry driven by the first respondent collided with his motor cycle and in that accident he sustained serious injuries resulting in his hospitalisation and treatment for a period of 28 days during different spells at Medical College Hospital, Kolenchery. He contended that the accident took place on account of the rash and negligent driving of the first respondent. Besides the first respondent, the driver of the lorry, he had also impleaded the owner thereof of as the second respondent and insurer thereof as the third respondent in the claim petition. ## **M.A.C.A.No.916 of 2014** ## **-:2:-** 2. Though notice was served, the driver and owner of the lorry did not enter appearance, with the result, they were set ex parte. The third respondent, the insurer of the lorry entered appearance and filed a written statement contending inter alia that the compensation claimed is exorbitant and excessive. It also contended that the claimant himself was responsible for the accident in the sense that he was negligent in riding the motor cycle. Before the tribunal, no oral evidence was adduced on either side. On application filed by the claimant, he was subjected to examination by the medical board constituted by the Superintendent, Medical College Hospital, Kottayam and the report received from the medical board was marked as Ext.C1. The claimant also produced and marked Exts.A1 to A4. He also caused production of Ext.X1 case diary relating to Crime No.169 of 2007 of Mulamthuruthy Police Station registered in connection with the accident. After considering the rival contentions, the tribunal held relying on the police records that the accident took place on account of the negligence of the first respondent. The tribunal thereafter proceeded to award the sum of Rs.4,24,967/- ## **M.A.C.A.No.916 of 2014** ## **-:3:-** as compensation under various heads as detailed below: |_Head_|_Amount_<br>_claimed_|_Amount_<br>_awarded_| |---|---|---| |Loss of earnings|Rs.1,08,000/<br>-|Rs.20,000/-| |Pain<br>and<br>sufferings|Rs.75,000/-|Rs.25,000/-| |Loss of amenities|Rs.75,000/-|Rs.15,000/-| |By-stander<br>expenses|Rs.10,000/-|Rs.2,800/-| |Extra nourishment|Not claimed|Rs.1,000/-| |Transporation<br>charges|Rs.15,000/-|Rs.1,000/-| |Medical expenses|Rs.2,00,000/<br>-|Rs.48,167/-| |Compensation for<br>loss of permanent<br>disability|Rs.3,50,000/<br>-|Rs.3,12,000/-| |Total||Rs.4,24,967/-| 3. In view of the fact that the third respondent insurer had not pleaded or proved breach of policy conditions, the policy being admitted, the tribunal directed the third respondent insurer to satisfy the award. The claimant has, dissatisfied with the quantum of compensation awarded by the tribunal, filed this appeal. We heard Sri Domson J.Vattakkuzhy, learned counsel ## **M.A.C.A.No.916 of 2014** ## **-:4:-** appearing for the appellant and Sri.Jacob Murickan, learned counsel appearing for the third respondent. We have also gone through the pleadings and the materials on record. The claimant was a rubber tapper at the time of the accident. He was aged 46 years. Though he had claimed that he was earning a monthly income of Rs.9,000/-, in the absence of any evidence in that regard, the tribunal awarded compensation for loss of dependency taking his monthly income as Rs.2,500/-. The accident took place on 21.4.2007. Having regard to the wage structure during the relevant time, we are of the opinion that on a modest estimate Rs.4,000/- can be taken as his monthly income. In the light of the decision of the Apex Court in **Syed** **Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd. [2014 ACJ 627]** future prospects also will have to be taken into account for the purpose of computing the compensation payable under the head loss of dependency. Since the claimant was aged 46 years, 30% of his monthly income, namely, 30% of Rs.4,000/- can be taken into account for that purpose. As the claimant was aged 46 years, the multiplier to be ## **M.A.C.A.No.916 of 2014** ## **-:5:-** applied is 13. It is not in dispute that the claimant has suffered 80% disability. Ext.C1 disability certificate issued by the medical board constituted by the Superintendent, Medical College Hospital, Kottayam discloses the said fact. Computed on that basis, the compensation payable to the appellant claimant under the head permanent disability/loss of earning capacity will be Rs.4,000 x 130% = Rs.5,200x12x13x80/100= Rs.6,48,960/-. The tribunal has awarded only Rs.3,12,000/-. We accordingly award to the appellant an additional compensation of Rs.3,36,960/- under the head permanent disability/loss of earning capacity. The tribunal has awarded to the claimant who has suffered 80% disability only Rs.15,000/- as compensation under the head loss of amenities. Having regard to the nature of the injury and the disability, we are of the opinion that 25% of the sum of Rs.6,48,960/- awarded by us as compensation under the head loss of disability, namely, Rs.1,62,240/- should be awarded under the head loss of amenities as compensation. Deducting the sum of Rs.15,000/- awarded by the tribunal, we award to the appellant an additional compensation of ## **M.A.C.A.No.916 of 2014** ## **-:6:-** Rs.1,47,240/- under the head loss of amenities. Though the claimant had in the claim petition claimed Rs.50,000/- as compensation under the head expenses for future treatment, no evidence is forthcoming in that regard. There is also no pleading to the said effect. Such being the situation, we are not persuaded to hold that the claimant has made out a case for award of any amount as compensation under that head. The compensation awarded under other heads does not in our opinion call for any enhancement. 4. We accordingly allow the appeal in part and award to the appellant-claimant an additional sum of Rs.4,84,200/- [i.e., Rs.3,36,960 + Rs.1,47,240/-] as compensation over and above the compensation awarded by the tribunal. The third respondent-insurer shall deposit the said amount together with interest at 9% per annum from the date of petition till the date of deposit, within three months from today. Upon such deposit being made, the sum of Rs.1,00,000/- shall be disbursed to the claimant and the balance amount shall be kept fixed deposit in his name in a nationalised bank for a period of five years. It will ## **M.A.C.A.No.916 of 2014** ## **-:7:-** be open to the appellant to withdraw the interest accruing on the said deposit every quarter. No costs. Sd/- **P.N.RAVINDRAN, JUDGE** **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** **ms**