MACA No. 1930 of 2010 & MACA No. 2406 of 2010

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 MACA NO. 1930 OF 2010 ``` ``` AGAINST THE AWARD DATED 14.05.2010 IN OP(MV) 938/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ``` ## **`APPELLANT/PETITIONER:`** ``` THUTHI SURENDRAN S/O.THUTHI KANNAN, AGED 40 YEARS,THUTHI HOUSE, ANCHAMPEEDIKA, P.O.ANCHAMPEEDIKA, (VIA) MOTTAMMAL, KANNUR DISTRICT. ``` ``` BY ADV SRI.M.V.AMARESAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1C.K.SUNIL S/O DAMODARAN VAIDYAR ANITHA BHAVAN, CHELERI P.O., KANNADIPARAMBA, KANNUR DISTRICT, PIN 670001. 2P.MOHANAN S/O.RAMAN PUTHUKKIYIL HOUSE PERUMTHATTA, P.O.PORAKKUNNU, PAYYANNUR VIA, KANNUR DISTRICT, PIN 670001. 3UNITED INDIA INSURANCE CO.LTD. SOUTH BAZAR, PAYYANNUR, PIN 670307. 4P.V.ASHOKAN AGED 42 YEARS S/O.KUNHAPPAN, PARIYARAM HOUSE, P.O.EDAT, PAYYANNUR VIA, KANNUR DISTRICT, PIN 670307. 5M.C.DHANARAJ S/O.M.ACHUTHAN ACHUTHA VIHAR, P.O.AZHIKKAL, KANNUR DISTRICT, PIN 670308. ``` ``` 6UNITED INDIA INSURANCE CO.LTD. KANNUR, PIN 670001. ``` ``` 2 ``` ``` MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010 ``` ``` BY ADVS. O.D.SIVADAS P.K.MANOJ KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2023, ALONG WITH MACA.2406/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, ``` ## **`1945`** ## **`MACA NO. 2406 OF 2010`** ``` AGAINST THE AWARD DATED 14.05.2010 IN OP(MV) 938/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ``` ## **`APPELLANT/4TH RESPONDENT:`** ## `P.V.ASHOKAN` ``` AGED 42 YEARS, S/O.KUNHAPPAN, PARIYARAM HOUSE, P.O.EDAT, PAYYANNUR VIA, KANNUR DISTRICT. ``` ``` BY ADV VISHAK JOHNSON K ``` ## **`RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 3 AND SUPPLEMENTARY RESPONDENTS 5 AND 6:`** ``` 1THUTHI SURENDRAN AGED 40 YEARS, S/O.THUTHI KANNAN, THUTHI HOUSE, ANCHAMPEEDIKA, P.O.ANCHAMPEEDIKA, (VIA) MOTTAMMAL, KANNUR DISTRICT, PIN 670310. ``` - `2 C.K.SUNIL` ``` S/O.DAMODARAN VAIDYAR, ANITHA BHAVAN, CHELERI P.O., KANNADIPARAMBA, KANNUR DISTRICT, PIN 670312. ``` - `3 P.MOHANAN` ``` S/O.RAMAN, PUTHUKKIYIL HOUSE, PERUMTHATTA, P.O.PORAKKUNNU, PAYYANNUR VIA, KANNUR DISTRICT, PIN 670307. ``` ``` 4UNITED INDIA INSURANCE CO.LTD. SOUTH BAZAR, PAYYANNUR, PIN 670307. ``` ``` MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010 ``` ``` 4 ``` ``` 5M.C.DHANARAJ S/O.M.ACHUTHAN, ACHUTHA VIHAR, P.O.AZHIKKAL, KANNUR DISTRICT, PIN 670308. 6UNITED INDIA INSURANCE CO.LTD. KANNUR, PIN 670001. BY ADVS. P.K.MANOJKUMAR SRI.P.S.PRADEEP THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2023, ALONG WITH MACA.1930/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010 ``` ``` 5 ``` ## **`JUDGMENT`** ## **`[MACA Nos.1930/2010, 2406/2010]`** These appeals are arising from O.P.(M.V.) No.938/2003 on the files of the Motor Accident Claims Tribunal, Thalassery. M.A.C.A. No.1930/2010 was filed by the claimant in the said claim petition, whereas M.A.C.A. No.2406/2010 was filed by the 4[th] respondent, the owner of the motorcycle on which the claimant was pillion riding. For the sake of convenience, the parties herein are referred to as per their respective ranks in the claim petition. 2. The said claim petition was submitted by the petitioner seeking compensation for the injuries sustained to him in a motor accident that occurred on 10.11.2002. According to him, the accident occurred when he was travelling on a motorcycle bearing Registration No.KRN 2881, owned and ridden by the 4th respondent in the claim petition, the same was hit by a bus bearing Registration No.KL 13A 3787, driven by the 2[nd] respondent. The said bus was owned by the 1[st] respondent and was insured with the 3[rd] respondent Insurance Company. The motorcycle was insured with the 6[th] respondent as well. In the claim petition, the petitioner contended ``` MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010 ``` ``` 6 ``` that he was working as a mason at the relevant time, with an income of Rs.100/- per day. Due to the injuries, he sustained physical disability, which was certified as 13%. He was aged 36 years at the time of accident. The claim petition was submitted in such circumstances seeking compensation of Rs.2,00,000/-. 3. The 3[rd] respondent, as well as the 6th respondent, accepted the coverage of the insurance policy over the respective vehicles. They, however, disputed the negligence and the quantum of the compensation. The aforesaid claim petition was tried along with O.P.(M.V.) No.771/2003, filed by the 4[th] respondent herein, seeking compensation for the injuries sustained to him in the very same accident. 4. The evidence in this case consists of oral testimony of PW1, the petitioner herein, and Exts.A1 to A17. The disability certificates were marked as Exts.X1 and X2, and from the side of the respondents, Ext.B1 was marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the bus and also the 4[th] respondent herein, ``` 7 ``` ## **`MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010`** the rider of the motorcycle. Therefore, the liability was apportioned among them equally. However, as it was found that, at the relevant time, the motorcycle was covered with an “Act only” policy, which would not cover the risk of a pillion rider, the 6[th] respondent insurance company was exonerated from the liability. The quantum of compensation was fixed as Rs.1,14,000/- and the 3[rd] respondent was directed to deposit 50% of the award, including the interest and cost, and the balance of 50% of the amount was directed to be paid by the 4[th] and 5[th] respondents together in equal proportions with interest @ 7.5% per annum from the date of petition till realisation. M.A.C.A. No.1930/2010 was filed by the claimant seeking enhancement of compensation, whereas M.A.C.A. No.2406/2010 was filed by the 4[th] respondent, challenging the composite negligence in the accident imposed upon him. 5. Heard Sri.M.V. Amaresan, learned counsel appearing for the claimant, the appellant in M.A.C.A. No.1930/2010, ``` MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010 ``` ``` 8 ``` Sri.Vishak K Johnson, learned counsel appearing for the 4[th] respondent and Sri.P.K. Manoj Kumar, learned counsel appearing for the 3[rd] and 6[th] respondent Insurance Companies. 6. The first question to be decided is the question of negligence. The learned counsel appearing for the appellant in M.A.C.A. No.2406/2010, the 4[th] respondent in the claim petition, pointed out that, the issue regarding the negligence is already decided by this Court in M.A.C.A. No.1851/2010, arose from the award passed in O.P.(M.V.) No.771/2003 filed by the rider of the motorcycle. On perusal of the said judgment, which is dated 03.10.2018, it can be seen that, this Court has specifically considered the question and found that the 4[th] respondent cannot be held negligent in respect of the accident and a categorical finding was entered into to the effect that, the accident occurred due to the sole negligence on the part of the driver of the bus, the 2[nd] respondent in the claim petition. Since the aforesaid question was already decided by this Court in M.A.C.A. ``` 9 ``` ## **`MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010`** No.1851/2010, M.A.C.A. No.2406/2010 is to be allowed, and it is ordered accordingly. 7. Now the question remains is regarding the quantum of compensation, which is under challenge in M.A.C.A. No.1930/2010. The learned counsel for the petitioner would point out that the amounts awarded by the Tribunal under various heads are grossly inadequate. The learned counsel firmly points out that the Tribunal has taken a monthly income of Rs.2,500/- which was on the lower side. It is pointed out that, he was working at the relevant time as a mason and under no circumstances, the monthly income of Rs.2,500/- can be treated as reasonable. Even though the learned counsel for the insurance company would oppose the said contention, I find some force in the same. It is to be noted in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], the Hon’ble Supreme Court has taken the monthly income of an ordinary employee even in the absence of any evidence as Rs.4,500/- in respect of an accident in the year 2004. Therefore, since the accident in this case ``` 10 ``` ## **`MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010`** occurred in the year 2002, I am of the view that an amount of Rs.3,500/- would be a reasonable amount to be fixed as monthly income, and it is ordered accordingly. 8. Another aspect to be noticed is the percentage of disability accepted by the Tribunal. It is discernible from the Ext.X2 disability certificate that the percentage of disability was certified as 13%. However, the Tribunal has accepted only 10%. However, it is evident from the records that the said certificate was issued by a Medical Board and considering the fact that it was issued by a panel of expert Doctors, the scaling down of a percentage of disability certified therein by the Tribunal was not proper. Considering the nature of injuries sustained by the petitioner also, the percentage of disability as certified in Ext.X2 appears to be reasonable. Therefore, I deem it appropriate to accept the said disability certificate and the percentage of disability is taken as 13%. However, it was pointed out by the learned counsel for the Insurance Company that the Tribunal has taken the multiplier as 16 for the computation of compensation, whereas it ought to have been 15, considering the ``` 11 ``` ## **`MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010`** fact that the appellant was aged 36 years at the time of the accident. The said contention is to be accepted. Thus, while reassessing the compensation with the above revised criteria, the compensation for disability would come to Rs.81,900/- (3500 x 12 x 15 x 13/100). The amount awarded by the Tribunal is Rs.48,000/-; therefore, the additional amount would come to Rs.33,900/-. 9. Consequent to the revision of monthly income, the petitioner would also be entitled to some enhancement under the head of loss of earnings. Here, the learned counsel for the petitioner would submit that the Tribunal has granted compensation only for two months, which was on the lower side. Considering the nature of the injuries sustained and the nature of the employment of the petitioner, I am of the view that, at least, he would have been prevented from pursuing his avocation for a period of three months. Therefore, the compensation has to be granted for three months. While reassessing the compensation with the revised monthly income of Rs.3,500/- for a period of three months, the additional compensation receivable by the petitioner under this head would be ``` 12 ``` ## **`MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010`** Rs.5,500/- (3,500 x 3 -5000). 10. The amount awarded by the Tribunal for pain and suffering is Rs.18,000/- which appears to be on the lower side. It is evident from the records that the petitioner had sustained serious injuries, and it resulted in physical disability, which was certified as 13%. Therefore, a further sum of Rs.12,000/- is to be granted under that head, and it is ordered accordingly. No amount is seen awarded towards the loss of amenities and convenience. This is a case in which the petitioner suffered 13% disability, and he was pursuing employment as a mason, which requires physical exertion. Therefore, the same would undoubtedly cause difficulties for him in pursuing the same. Thus, an amount of Rs.25,000/- is granted under the said head. Accordingly, the total additional compensation in this case is fixed as Rs.76,400/- (33,900 +5,500+12,000+25,000). 11. In the light of the above observations and findings, both these appeals are disposed of with the following directions: i. Award dated 14.05.2010, in O.P.(M.V.) No.938/2003 passed by the Motor Accident Claims Tribunal, Thalassery shall ``` 13 ``` ## **`MACA NO. 1930 OF 2010 & MACA NO. 2406 OF 2010`** stand set aside to the extent it held that, the 4[th] respondent was also responsible for the accident. It is held that, the accident occurred due to the sole negligence of the 2[nd] respondent, the driver of the bus, and therefore, the entire liability to pay compensation shall be upon the 3[rd] respondent in the claim petition, the insurer of the bus. ii. The amount awarded by the Tribunal is modified by granting an additional compensation of Rs.76,400/- (Rupees seventy six thousand and four hundred only). Thus, the total compensation is fixed at Rs.1,90,400/- (Rupees one lakh ninety thousand and four hundred only) [76400 + 114000] and the entire amount shall be deposited by the 3[rd] respondent Insurance Company in the claim petition along with interest @ 7.5% per annum from the date of petition till realisation and proportionate costs, after adjusting the amounts already deposited by them with proportionate cost. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs