M. Radhakrishnan v. Allimuthu and The Oriental Insurance Company Limited

**MACA NO. 1251 OF 2011** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943 MACA NO. 1251 OF 2011** **AGAINST THE UDGMENT IN OPMV 291/1998 OF ADDITIONAL MOTOR** **ACCIDENTS CLAIMS TRIBUNAL ,PALAKKAD** ## **APPELLANT/PETITIONER:** M.RADHAKRISHNAN, S/O.LATE VENUKUTTY NAIR, AGED 63 YEARS, SANGEETH, CHEMMANAMKADU, KANJIKODE, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA ## **RESPONDENTS/RESPONDENTS:** 1 ALLIMUTHU,S/O.P.A KUNJAPPAN, AGED 53 YEARS, RESIDING AT MANNATHU HOUSE, K.N.PUTHUR, KANJIKODE, PALAKKAD TALUK,, PALAKKAD DISTRICT. 2 THE ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, P.B.NO.20, SOBHA TSM COMPLEX, V.H.ROAD,, PALAKKAD TOWN, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.K.ANAND SRI.GEORGE CHERIAN THIRUVALLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1251 OF 2011** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.291/1998 on the file of the Additional Motor Accidents Claims Tribunal, Palakkad. 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 21.6.1997. 3. The facts in brief, relevant for the determination of the appeal, are: on 21.6.1997 while the appellant was travelling on his scooter bearing Reg. No.KL9C-2769 from Pudussery through PalakkadCoimbator National Highway, when the appellant carefully entered the sub road to go to the industrial area, the 1[st] respondent who was riding his motorcycle bearing Reg.No.KL9D-9324 (motorcycle) in a rash and **MACA NO. 1251 OF 2011** **3** negligent manner, hit the scooter of the appellant. The appellant was thrown on the road and sustained grievous injuries, including a fracture on the femur left side, multiple injuries - compound depressed fracture and fronto naso ethmodial with CSF rhinorrhea. He was treated as an inpatient at the Kovayoor Medical Centre and Hospitals Limited from 21.6.1997 to 7.8.1997. The motorcycle was owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant was an Office Assistant (Finance) in Pre-cot (A) Mills Pudussery, Palakkad and drawing a monthly salary of Rs.5,975/-. The appellant claimed a total compensation of Rs.10,00,000/- from the respondents. 4. The 1[st] respondent filed a written statement contending that the accident occurred due to the negligence of the appellant. He also filed O.P (MV) No.1460/1997 before the same Tribunal seeking compensation from the appellant and the 2[nd] respondent. **MACA NO. 1251 OF 2011** **4** 5. The 2[nd] respondent filed written statements in both the claim petitions contending that the appellant and the 1[st] respondent were charge-sheeted by the Police for contributory negligence. It was also contended that the amount of compensation sought for is excessive and exorbitant. 6. The Tribunal consolidated and jointly tried the original petitions. 7. The 1[st] respondent, the appellant and the employer of the appellant were examined as PW1 to PW3 and Exts.A1 to A14 were marked in evidence. The 2[nd] respondent produced Ext.B1 charge-sheet and marked it in evidence. Ext.X1 medical report was marked as a third party exhibit. 8. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition filed by the appellant, in part, but found that the appellant was guilty for contributory negligence **MACA NO. 1251 OF 2011** **5** to the extent of 50%, and allowed a compensation of Rs.7,20,163/-, but deducted 50% of the compensation amount and held that the appellant is entitled to only an amount of Rs.3,60,082/- with interest at the rate of 7.5% per annum from the date of petition till the date of payment. The 2[nd] respondent was directed to pay the compensation amount. 9. Dissatisfied with the quantum of compensation , the petitioner is in appeal. 10. Heard; Sri.Binoy Vasudevan, the learned counsel appearing for the appellant/petitioner and Sri.George Cherian, the learned counsel appearing for the 2[nd] respondent -insurer. ## **Negligence and liability** 11. Ext.B1 charge-sheet filed by the Walayar Police in Crime No.120/1997 clearly proves that the accident occurred due to the negligence of the appellant as well as the 1[st] respondent. **MACA NO. 1251 OF 2011** **6** 12. In fact, the 1[st] respondent had challenged the impugned award before this Court in MACA No.1635/2012, wherein the appellant was the 1[st] respondent. 13. This Court by judgment dated 13.2.2019, upheld the finding of the Tribunal that both the appellant and the 1[st] respondent were guilty for contributory negligence in the ratio of 50:50. In the light of the judgment of this Court confirming the finding of the Tribunal, that both the appellant and the 1[st] respondent were guilty for contributory negligence, the said finding operates as resjudicata against the appellant as it is an inter-party judgment between the parties in MACA 1635/2012. Thus, I confirm the finding of the Tribunal with regard to the contributory negligence on the part of the petitioner to the extent of 50%. ## **Notional income** 14. The appellant had claimed that he was employed **7** ## **MACA NO. 1251 OF 2011** as an Office Assistant (Fin) in Pre-cot (A) Mills, Pudussery, Palakkad. He had produced Exts.A13 and A14 salary certificates, which were proved through PW3, to substantiate that the appellant was drawing a monthly salary of Rs.7,648/- in the month of June, 2007. 15. Nevertheless, the Tribunal, for want of any material as regards the appellant's salary in the year 1997, fixed the notional income of the appellant at Rs.4,500/-. 16. Going by the uncontroverted oral testimony of PW3 and Exts.A13 and A14, salary certificates, I find that an amount of Rs.5,000/- can safely be fixed as the notional income of the appellant in the year 1997. Accordingly, I re-fix the notional income of the appellant at Rs.5,000/per month. ## **Disability** 17. The disability of the appellant was assessed by a four Member Medical Board attached to the Medical **MACA NO. 1251 OF 2011** **8** College Hospital, Thrissur. The Medical Board, after examining the appellant, fixed his whole body disability at 59.3%. The said finding of the Medical Board in Ext.X1 was accepted by the Tribunal and the appellant's disability was fixed at 59.3%. 18. In **Pappu Deo Yadav v Naresh Kumar and others** [AIR 2020 SC 4424 **]** and **Anthony @ Anthonyswamy v. Managing Director, Karnataka State Road Transport Corporation** [2020 SCC ONLINE 493], the Hon'ble Supreme Court has held that in cases where the claimants sustain serious injuries, they are also entitled for future prospects. 19. Following the ratio in the aforecited decisions and taking into account the fact that the appellant sustained serious disability to the extent of 59.3% and he was aged 49 years on the date of accident and the relevant multiplier being '13', I hold that the appellant is entitled for future prospects at 25% on the compensation **MACA NO. 1251 OF 2011** **9** for loss due to disability’. ## **Loss due to disability** 20 **.** Taking into account the abovementioned factors, namely, the monthly income of the appellant at Rs.5,000/-, disability at 59.3%, the multiplier at 13 and the future prospects at 25%, I hold that the appellant is entitled for compensation under the head 'loss due to disability' at Rs.5,78,175/-. ## **P ain and suffering** 21. The appellant had claimed an amount of Rs.25,000/- under the head 'pain and suffering'. However, the Tribunal only awarded an amount of Rs.15,000/ under the said head. 22. Taking into account the serious injuries sustained by the appellant and that he was incapacitated for a period of 10 months and has sustained 59.3% permanent disability as per Ext.X1, I am of the firm **MACA NO. 1251 OF 2011** **10** opinion that the appellant is entitled for compensation under the head 'pain and suffering', as claimed for in the claim petition, at Rs.25,000/-. ## **Loss of amenities** 23. The appellant had claimed an amount of Rs.4,00,000/- under the head ‘ loss of earning power’ due to the disability suffered by him. Taking into account the serious injuries that the appellant sustained as held under the head 'pain and suffering', especially the fact that he has sustained a permanent disability of 59.3%, I award an amount of Rs.50,000/- towards 'loss of amenities'. ## **Loss of earnings** 24. In view of the re-fixation of the notional income of the appellant at Rs.5,000/- per month, I hold that the appellant is entitled for loss of earnings at Rs.50,000/-. **MACA NO. 1251 OF 2011** **11** ## **Other heads of claim** 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [452 x 212] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>No rupees) recalculated<br>by this Court<br>1 Loss of earning 45,000 50,000<br>2. Bystander expenses 3,700 3,700<br>3. Clothing 250 250<br>4. Extra-nourishment 3700 3,700<br>**----- End of picture text -----**<br> **MACA NO. 1251 OF 2011** **12** **==> picture [452 x 241] intentionally omitted <==** **----- Start of picture text -----**<br> 5. Medical expenses 2,36,227 2,36,227<br>6. Pain and suffering 15,000 25,000<br> 7. Loss of amenities --- 50,000<br> 8. Loss due to disability 4,16,286 5,78,175<br>Total 7,20,163-50%= 9,47,052-50%<br>3,60,082 =4,73,526<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.1,13,444/- with interest at the rate of 7.5% per annum on the enhanced compensation from the date of petition till the date of deposit, after deducting the interest for a period of 331 days, i.e, the period of delay in preferring the appeal and as ordered by this Court on 06.06.2019 in C.M.Appli. No.1899 of 2011, and a cost of Rs.3000/-. The 2[nd] respondent is ordered to deposit the enhanced compensation awarded in the appeal before the Tribunal **13** ## **MACA NO. 1251 OF 2011** with interest and costs within a period of two months from the date of receipt of a certified copy of the judgment. The compensation shall be disbursed by the Tribunal to the appellant/petitioner in accordance with law. ma Sd/- **C.S.DIAS, JUDGE** **/True copy/**