MACA No. 1763 of 2010 & Cross Objection No. 32 of 2017

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** **MACA NO. 1763 OF 2010** **AGAINST THE AWARD IN OP(MV)NO. 1079/2007 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL PALA, KOTTAYAM** ## **APPELLANT/3RD RESPONDENT IN THE OP:** **THE ORIENTAL INSURANCE CO.LTD THODUPUZHA, REP. BY THE AUTHORIZED SIGNATORY,, THE ORIENTAL INSURANCE CO. LTD.,, REGIONAL OFFICE, METRO PALACE,, ERNAKULAM NORTH, KOCHI-18. BY ADV SRI.A.R.GEORGE** ## **RESPONDENTS/CLAIMANT & RESPONDENTS 1 AND 2 IN THE OP:** **1 P.K.PRAKASH S/O.KESAVAN, PULIMOOTTIL HOUSE,, MURIKKALLUMPURAM, MUNDAKAYAM P.O.,, KOTTAYAM DISTRICT.-686513** **2 NAJEEBKHAN AYSHA MANSIL MURIKKALLUMPURAM, MUNDAKAYAM P.O.,, KOTTAYAM DISTRICT.-686513** **3 P.S.BINU PAZHOOR HOUSE, PALAMPRA P.O.,, KANJIRAPPALLY, KOTTAYAM DISTRICT.-686518** **BY ADVS. SMT.MINI ELIZABETH GEORGE SMT.V.S.SIMI** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2021, ALONG WITH CO.32/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _2_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** **CO NO. 32 OF 2017** **AGAINST THE AWARD IN OP(MV)NO. 1079/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA, KOTTAYAM** **APPELLANT/RESPONDENT NO.1:** **PRAKASH P.K. S/O KESAVAN, PULIMOOTTIL HOUSE, MURIKALLUMPURAM, MUNDAKAYAM PO, KOTTAYAM DISTRICT.** **BY ADV SMT.MINI ELIZABETH GEORGE** ## **RESPONDENTS/RESPONDENTS 2 AND 3 & APPELLANT:** - **1 NAJEEBKHAN ASIYA MANSIL, MURIKALLUMPURAM, MUNDAKAYAM PO, KOTTAYAM DISTRICT.686513.** **2 P.S. BINU PAZHOOR HOUSE, PALAMPRA PO, KANJIRAPPALLY, KOTTAYAM DISTRICT.686506.** **3 THE MANAGER THE ORIENTAL INSURANCE COMPANY LTD, THODUPZUAHA, 685684, POLICY NO. 441701/04/8562.** **BY ADV SRI.A.R.GEORGE** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2021, ALONG WITH MACA.1763/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of July, 2021 ## **JUDGMENT** The appellant was the 3[rd] respondent in OP(MV)No.1079 of 2007 on the file of the Motor Accidents Claims Tribunal, Pala. The respondents in the appeal were the petitioner and respondents 1 and 2 before the Tribunal. 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 Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the accident that occurred on 06.07.2004. The petitioner had averred in the claim petition that, on 06.07.2004 MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _4_ while he was driving an autorickshaw bearing registration No.KL 5 N/6044 from Koottickal to Mundakkayam, a Bus bearing registration No.KL 5 L/5412 (Bus) coming from the opposite side and while attempting to overtake another vehicle, hit the autorickshaw of the petitioner. The Bus was driven by the 1[st] respondent in a rash and negligent manner. The petitioner sustained serious injuries and was taken to Taluk Headquarters Hospital, Kanjirappally and was, thereafter, referred to the Medical College Hospital, Kottayam for further treatment. He was finally discharged on 15.07.2004. The petitioner is a driver by profession and earning a monthly income of Rs.6,000/-. He was disabled from carrying on his work for six months. The accident occurred solely due to the negligence of the 1[st] respondent. The Bus was owned by the 2[nd] respondent and insured with the 3[rd] MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _5_ respondent. Hence, the respondents were jointly and severally pay him compensation, which he quantified at Rs.1,80,000/-. 3. A fellow passenger in the autorickshaw also filed OP(MV)No.1087 of 2007 before the same Tribunal claiming compensation on the account of injuries sustained in the accident. 4. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 5. The 3[rd] respondent filed a written statement contending that the Bus had a valid insurance coverage, but the accident was caused due to the negligence of the petitioner, who drove the autorickshaw in a rash and manner. negligent Therefore, the 3[rd] respondent was not liable to pay any amount as compensation. Similarly, the 3[rd] respondent disputed the age, occupation and income MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _6_ of the petitioner. It is also contended that there was a collision between the petitioner and the respondents. 6. The Tribunal consolidated and jointly tried the original petitions. 7. Both the petitioners were examined as PWs 1 and 2. Three other witnesses were examined as PWs 3 to 5 and Exts.A1 to A9 were marked in evidence. 8. The 3[rd] respondent examined RWs 1 to 5 and marked Exts.B1 to B7 in evidence. The case sheet was marked as Ext.X1. 9. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition filed by the petitioner, by permitting him to realise an amount of Rs.42,650/- from the 3[rd] respondent, 10. Aggrieved by the impugned award passed by the Tribunal, the 3[rd] respondent/insurance company has filed the appeal, and dissatisfied with the MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _7_ quantum of compensation awarded by the Tribunal, the petitioner has filed the Cross Objection. 11. Heard Sri.A.R.George, the learned Counsel appearing for the appellant/3[rd] respondent-insurance company and Smt.Mini Elizabeth George, the learned Counsel appearing for the 1[st] respondent/cross objector/petitioner. 12. The questions that arise for consideration in this appeal are (i) whether the findings of the Tribunal that it was the 1[st] respondent who was negligent in causing the accident is correct or not and (ii) whether petitioner is entitled for enhancement of compensation? 13. It was the specific case of the petitioner in the claim petition that, while he was driving his autorickshaw, the Bus driven by the 1[st] respondent in a rash and negligent manner hit against the MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _8_ autorickshaw, which resulted in the accident and consequential injuries were caused to him. 14. Ext.B1 F.I.Statement and Ext.B2 FIR registered by the Mundakkayam police in Crime No.181 of 2004 and Ext.B5 final report filed by the police after investigation states that it was the petitioner who was negligent in driving the autorickshaw and who had caused the accident. Nevertheless, the petitioner had filed Ext.A1 private complaint before the jurisdictional Magistrate, pursuant which C.C.No.503 of 2006 was registered by the Judicial First Class Magistrate Court–1, Kajirappally, against the 1[st] respondent for offences punishable under Sections 279, 337 and 338 of the IPC. 15. Surprisingly, the 1[st] respondent pleaded guilty to the charges framed against him and he was MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _9_ convicted by the learned Magistrate for the above offences and sentenced to a total fine of pay Rs.2,400/-. 16. Pursuant to Ext.B4 final report filed by the police before the very same court, the petitioner withstood the trial. After examination of the informant and eye witnesses to the incident, the learned Magistrate acquitted the petitioner under Section 225(1) Cr.P.C. Therefore, on the passing of Ext.A2 and Ext.A3 judgments by the learned Magistrate, the petitioner was acquitted of the charges levelled against him, but the 1[st] respondent was convicted for the offences charged against him. 17. In addition to the above materials, the petitioner had examined PWs 3 and 4, who were eye witnesses to the incident. The said witnesses emphathetically stated that they had seen the Bus MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _10_ driven by the 1[st] respondent in a rash and negligent manner, and while attempting to overtake another vehicle, it hit the autorickshaw driven by the petitioner. On the other hand, the 3[rd] respondent examined the police officers who registered Ext.B2 FIR, Ext.B4 final report and the charge-sheet as RWs 1 to 3, respectively, which have become redundant in the light of Ext.A2 and A3 judgments. 18. The Tribunal after evaluating the testimonies of PWs 3 and 4 and that of RWs 1 to 3 and perusing the exhibits marked in evidence, particularly, Ext.A2 and Ext.A3 judgments passed by the learned Magistrate arrived at a conclusion that the accident was caused solely due to the negligence of the 1[st] respondent. 19. On a re-appreciation of the oral testimonies of PWs 3 and 4 and RWs 1 to 3 and also the exhibits MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 **==> picture [14 x 8] intentionally omitted <==** on record, I find that only PWs 3 and 4 were eye witnesses to the incident who have specifically stated that the accident occurred on account of the negligence of the 1[st] respondent who while overtaking another vehicle hit the vehicle driven by the petitioner, which resulted in the accident. This finding is fortified by Ext.A2 judgment of the jurisdictional Magistrate, wherein, the 1[st] respondent pleaded guilty to the charges that were framed against him. Likewise, by Ext.A3 judgment, the petitioner was acquitted of the charges levelled against him. 20. On a comprehensive re-appreciation of the materials on record particularly, the oral testimonies of the above mentioned witnesses, I am of the considered opinion that the findings of the Tribunal that it was the 1[st] respondent who was negligent in causing the accident is correct and justified. I do not MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _12_ find any error or illegality in the fact finding exercise carried out by the Tribunal. Hence, I answer question No.1 in favour of the petitioner and hold that the Tribunal has rightly arrived at the conclusion, which I confirm. 21. Now, coming to the second question whether the petitioner is entitled for enhancement of compensation . 22. The petitioner had claimed that he was a Driver by profession and earning a monthly income of Rs.6,000/-. The Tribunal, for want of materials, fixed the notional income of the petitioner at Rs.2,500/-. 23. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company** Limited_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _13_ ## **Notional income** 24. Following the ratio in the afore-cited decision and considering that the accident occurred in the year 2004, I am of the considered opinion that the petitioner’s notional income can safely be fixed at Rs.4,500/- per month. Hence, I re-fix the petitioner's notional income at Rs.5,500/- per month. ## **Disability** 25. Pursuant to the order of this Court dated 15.01.2019, the petitioner was referred to the Medical Board of the Medical College Hospital, Kottayam. The Medical Board after examining the petitioner by Standing Disability Assessment Board Certificate dated 27.02.2019 has assessed the permanent disability of the petitioner at 8%. I accept the said certificate on record and mark the same as Ext.X2. MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _14_ ## **Loss due to disability** 26. The petitioner was 28 years at the time of accident. In the light of the law laid down in **Sarala Varma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)] and **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** the relevant multiplier is '17'. Therefore, following the above parameters, I re-fix the compensation for ‘loss due to disability’ at Rs.73,440/-. ## **Loss of earnings** 27. The Tribunal found that the petitioner was incapacitated for a period of four months and awarded an amount of Rs.10,000/- as compensation for 'loss of earnings'. In view of the re-fixation of the notional income of the appellant at Rs.4,500/- per month, I re-fix the compensation at Rs.18,000/-, i.e, an enhancement of Rs.8,000/-. MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _15_ 28. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 29. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the cross objector/petitioner is entitled for enhancement of as compensation modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by the<br>Tribunal (in rupees)|Amounts modified<br>and recalculated by<br>this Court| |---|---|---|---| |1|Transport to hospital|1,500/-|1,500/-| |2|Loss of earnings|10,000/-|18,000/-| |3|Damage to clothing|250/-|250/-| |4|Extra nourishment|500/-|500/-| |5|Medical expenses|2,400/-|2,400/-| |6|Bye-stander expenses|3,000/-|3,000/-| |7|Pain and sufferings|15,000/-|15,000/-| |8|Loss due to amenities|10,000/-|10,000/-| |9|Loss due to disability|nil|73,440/-| |||42,650/-|1,24,090/-| In the result, the appeal is dismissed and the Cross Objection is allowed, in part, by answering MACA No. 1763 of 2010 & Cross Objection No.32 of 2017 _16_ question No.2 in favour of the petitioner and enhancing the compensation by a further amount of Rs.81,440/- with interest at the rate of 7.5% per annum from the date the petition till the date of deposit, after deducting 2325 days, i.e., the period of delay in filing the Cross Objection, and as ordered by this Court on 31.08.2018 in C.M.Appl.653 of 2017, and proportionate costs. The appellant in MACA No.1763 of 2010/3[rd] respondent insurance company shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the cross objector/petitioner in accordance with law. Sd/- **C.S.DIAS,JUDGE** dlk 26.07.2021