MACA 2351 OF 2013

1 MACA 2351 OF 2013 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** ## **MACA.No.2351 OF 2013** **AGAINST THE AWARD IN OPMV 307/2006 DATED 11-09-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** **K.BABU S/O.KOCHUMMAN, CHARUVILA PUTHEN VEEDU, MEEYYANNOOR, POOYAPPALLY, KOLLAM DIST** ## **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT/S:** |**1**|**ACHAN KUNJU**| |---|---| ||**VEKACHALIL PUTHEN VEEDU, NEDUTHERI, THALAVOOR P O,**| ||**KOLLAM DIST- 691 514**| |**2**|**GEORGE THANKACHAN**| ||**VATTAVILA VEEDU, POOYAPPALLY PO , KOLLAM DIST- 691**| ||**537**| |**3**|**THE UNITED INDIA INSURANCE COMPANY LIMITED KOLLAM-**| ||**691001**| **R3 BY ADV. SRI.N.S.MOHAMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 2351 OF 2013 ## **C.S.DIAS, J.** ## **====================== MACA No.2351 of 2013 ====================== Dated this the 16[th] day of September, 2020.** ## **JUDGMENT** The appellant is the claimant in OP (MV) No.307/2006 on the file of the Motor Accident Claims Tribunal, Kollam. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of a motor accident that took place on 8.1.2006. The parties are, for the sake of convenience, referred to as per their litigate status in the appeal. 2. It is the case of the appellant that while he was travelling in an auto rickshaw bearing registration No. KL-2/G-3221, the second respondent, the driver of the auto rickshaw, drove the vehicle in a rash and negligent manner and suddenly turned the vehicle to the right side and 3 MACA 2351 OF 2013 the auto rickshaw turned a turtle and capsized. The appellant sustained serious injuries. The first respondent is the owner of the auto rickshaw and the third respondent is the insurer of the vehicle. 3. Accordingly, the appellant filed the claim petition before the Tribunal, claiming a total compensation of Rs.2,50,000/- under various heads. 4. The respondents 1 and 2 were set ex parte. The third respondent filed a written statement, inter alia, contending that the claim petition was not maintainable, and that the accident did not occur due to the negligence of the second respondent, and the second respondent did not have a valid driving licence to drive the auto rickshaw. There were four passengers in the auto rickshaw. Hence, there were violations of the policy conditions. The amounts claimed by the appellant under the various heads were excessive and exorbitant. 5. The appellant's wife, who was a copassenger in the auto rickshaw, also sustained 4 MACA 2351 OF 2013 injuries in the same accident. She also preferred OP(MV) 294/2006 before the Tribunal. The Tribunal consolidated and jointly tried both the claim petitions. 6. Neither party adduced any oral evidence. The appellant and the petitioner in OP(MV) No.294/2006 produced Exts.A1 to A14. The 3[rd] respondent produced Exts.B1 letter. 7. After considering the pleadings and materials on record, the Tribunal by the impugned common award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.79,500/- as compensation from the respondents, jointly and severally, with interest at the rate of 7.5% from the date of petition till the date of realisation. The appellant was also permitted to withdraw a cost of Rs 1,000/-. The third respondent was permitted to pay the amount and recover it from the first respondent. 5 MACA 2351 OF 2013 8. The comparative table of compensation that was claimed by the appellant and that was awarded by the Tribunal is as follows:- |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Loss of earning (Total)|25,000/-|| |2|Medical and miscellaneous<br>expenses|50,000/-|44,000/-| |3|Bystander expenses|Nil|1,100/-| |4|Transportation expenses|5,000/-|1,000/-| |5|Extra nourishment|5,000/-|1,000/-| |6|Damage to cloth and<br>article|5,000/-|Nil| |7|Compensation for pain and<br>suffering|Nil|20,000/-| |8|Loss of amenities and<br>convenience etc.|Nil|12,000/-| |9|Any other heads (9-11)|1,60,000/-|| ||Total|2,50,000/-|79,100/- rounded as Rs<br>79,500/- (Rupees<br>Seventynine Thousand<br>and Five Hundred only)| 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, under the various heads mentioned above, the appellant has preferred this appeal. 10. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the third respondent. 6 MACA 2351 OF 2013 11. The sole question that emerges for consideration in this appeal is whether the appellant is entitled for enhancement of compensation. 12. 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. 13. When the appeal was taken up for consideration, the learned counsel appearing for the appellant contended that the appellant was principally aggrieved by the disallowing of the claim under the head - loss of earning. 14. The Tribunal in paragraph 19 of the 7 MACA 2351 OF 2013 common award found that the appellant had not produced any material to establish that the appellant suffered any loss of earning. Therefore, the said claim was disallowed. 15. The appellant had produced Annexure A2 document along with I.A No.1/2020 in the appeal. The application was allowed and Annexure A2 document was accepted in evidence and marked as Ext A15. 16. In Ext A15 certificate, issued by the Headmistress, Government Higher Secondary School, Pallimon, it is certified that the appellant had availed commuted leave for a period of 51 days from 9.1.2006 to 28.2.2006 and half pay leave for 31 days from 1.3.2006 to 31.3.2006 on medical grounds. Therefore, the appellant suffered a monitory loss of Rs 22,427/-. 17. Admittedly, the accident occurred on 8.1.2006. The appellant availed leave, as mentioned above, from 9.1.2006 to 31.3.2006. In view of Ext A15 issued by the Headmistress of the 8 MACA 2351 OF 2013 Government School, where the appellant was working, I am of the considered opinion that the appellant is entitled for loss of earning during the aforesaid period for the amount quantified in Ext A15 because he availed leave only because of the accident. 18. On an overall re-appreciation of the pleadings and evidence on record I am of the definite opinion that the compensation awarded by the Tribunal under the other heads of claim are just and reasonable. I do not find any ground or circumstance to enhance the amounts claimed under the other heads of claim. 19. In the result, the appeal is allowed, in part, by enhancing the compensation awarded by the Tribunal by a further amount of Rs.22,427/(Rupees Twenty Two Thousand Four Hundred and Twentyseven) under the head - loss of earning. The 3[rd] respondent shall deposit the additional compensation before the Tribunal within a period of two months from the date of receipt of a certified 9 MACA 2351 OF 2013 copy of the judgment with proportionate costs, after deducting the liability, if any, of the appellant towards balance court fee and legal benefit fund, failing which the third respondent shall be liable to pay interest on the aforesaid amount at the rate of 9% per annum from the date of this judgment till the date of deposit of the amount. On such deposit, the Tribunal shall disburse the compensation in deposit and the additional compensation, in accordance with law. **Sd/-** **C.S.DIAS** > SKS/16.9.2020 **JUDGE**