MACA No. 279 of 2020; MACA No. 1840 of 2019, High Court of Kerala at Ernakulam

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 ``` ## `MACA NO. 279 OF 2020` ``` AGAINST THE AWARD IN OPMV 852/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM ``` ## `APPELLANT/IST RESPONDENT:` ``` VINEESH S/O.THANKAPPAN, KUTTIPARICHATHIL HOUSE, MEMURI.P.O, MANJOOR BY ADVS. JACOB E SIMON SHRI.JOJI ALEX ``` ## `RESPONDENT/3RD RESPONDENT:` ``` NEW INDIA ASSURANCE CO.LTD 2ND FLOOR, POLACHIRACKAL, CHAMBERS, OPPOSITE COLLECTORATE, KOTTAYAM-KUMILY RD, KOTTAYAM, KERALA-686002 REPRESENTED BY THE BRANCH MANAGER BY ADV SRI.A.C.DEVY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2023, ALONG WITH MACA.1840/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` [MACA Nos.279/2020, 1840/2019] ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 ``` ``` MACA NO. 1840 OF 2019 ``` ``` AGAINST THE AWARD IN OPMV 852/2016 OF MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL ,KOTTAYAM ``` ## `APPELLANT/1ST PETITIONER:` ``` UNNI PATHUMMA.K., AGED 47 YEARS W/O. RADHEED, NAZIA MANZIL, KARAPUZHAKARA, KOTTAYAM VILLAGE. BY ADV P.M.JOSHI ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1VINEESH, S/O. THANKAPPAN, KUTTIPARICHATHIL HOUSE, MEMURI P.O., MANJOOR, PIN - 686 611 2SHINU P.JOHN S/O. JOHN, PARNGATHU HOUSE, PUNNATHURA, KOTTAYAM, PIN - 686 583 3THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD, KOTTAYAM - 1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2023, ALONG WITH MACA.279/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [MACA Nos.279/2020, 1840/2019] ``` ``` 3 ``` ## `JUDGMENT` ``` These two appeals are being disposed of today ``` ``` with the consent of both sides. ``` ``` 2.Amongtheappealsafore,MACA No.1840/2019 has been filed by the claimant in OP(MV)No.852/2016 on the file of the Motor ``` ``` Accidents Claims Tribunal, Kottayam (“Tribunal” for short) and she asserts that the compensation awarded for the injuries sustained by her in a ``` ``` road accident on 24.02.2016 - when she was ``` ``` knocked down by the open door of the offending vehicle driven in a rash and negligent manner – is inadequate; and thus seeks that it be enhanced substantially. ``` ``` 3.The learned Tribunal, while awarding the aforementioned OP(MV), found that the owner and the conductor of the offending bus was ``` ``` [MACA Nos.279/2020, 1840/2019] ``` ``` 4 ``` ``` responsible for the accident and granted the Insurance Company, the right to recover the compensation from them, on the ground that said vehicle did not have a valid permit at the time of the accident. The conductor filed MACA No.279/2020, assailing the Award, on the ground that the vehicle did have valid permit, but conceding that it could not be produced or marked, since he was set exparte before the ``` ``` learned Tribunal, though producing the relevant certificate before this Court, along with ``` ``` I.A.No.1/2020. ``` ``` 4.I have heard Sri.P.M.Joshy – learned ``` ``` counsel for the appellant in MACA No.1840/2019; Sri.Jacob E. Simon – learned counsel for the appellant in MACA No.279/2020 and Sri.A.C.Devy – learned Standing Counsel for the Insurance Company. ``` ``` [MACA Nos.279/2020, 1840/2019] ``` ``` 5 ``` ``` 5.I will first deal with the case of the ``` ``` claimant for enhancement of compensation. ``` ``` 6.The accident is not disputed nor are the injuries sustained by the appellant. The medical evidence on record would show that she suffered head injury and injuries to her face. The ``` ``` C.T.Scan report confirms “Right posterior thin scalp hematoma”, but it is conceded that the doctors did not find any permanent disability. The Tribunal thus adopted her notional income to be Rs.8,000/- per month, though the appellant had ``` ``` asserted that she was drawing salary of Rs.14,000/- per month. But since there was no evidence to prove this, her notional income was adopted as afore and this is now impugned by her. ``` ``` 7.On this issue, I cannot find fault with the Tribunal, in having adopted her notional ``` ``` [MACA Nos.279/2020, 1840/2019] ``` ``` 6 ``` ``` income because, even though the appellant claimed ``` ``` that she was a teacher in a private school with monthly income of Rs.14,000/-, no evidence has been produced in its substantiation. Obviously, her testimony to such effect as PW1 would also remain uncorroborated. The learned Tribunal, therefore, should have adopted the notional income. However, taking note of the fact, the accident happened in the year 2016, the learned Tribunal ought to have gone by the postulations inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited. [(2011) 13 SCC 236],whichauthorises a minimum figure of Rs.10,500/-, even in the case of a person with unascertainable income in that year. I see no reason why the learned Tribunal did not adopt this figure. ``` ``` 8.Coming to the question of compensation ``` ``` [MACA Nos.279/2020, 1840/2019] ``` ``` 7 ``` ``` for “Pain and Suffering” and “Loss of Amenities”, ``` ``` I notice that the Tribunal has awarded Rs.25,000/- each under these heads. Adverting to the injuries suffered by the appellant, ``` ``` particularly on her head, I am of the view that ``` ``` the compensation for “Pain and Suffering” is deserving of being doubled, though I do not ``` ``` propose to intervene with the sum awarded by the learned Tribunal for “Loss of Earnings”. ``` ``` 9.Coming to MACA No.279/2020, as I have ``` ``` said above, the Conductor of the offending bus ``` ``` has approached this Court asserting that said ``` ``` vehicle had a valid permit at the time of the ``` ``` accident. He tries to prove it through the ``` ``` certificate produced before this Court along with ``` ``` I.A No.1/2020. However, the learned Standing Counsel for the Insurance Company - Sri.A.C.Devy, submitted that his client cannot admit this ``` ## `[MACA Nos.279/2020, 1840/2019]` ``` 8 ``` ``` document, without it being proved through proper ``` ``` evidence; and added that if this Court is so inclined, he will not stand in the way of a remand of the original petition to the learned Tribunal to such extent. ``` ``` 10.I have examined the certificate which has been produced by appellant as Annexure A before ``` ``` this Court. No doubt, it is one issued by the Regional Transport Office, but as rightly argued by Sri.A.C.Devy, this is a matter which will ``` ``` require to be established and proved properly. I am certain, therefore, that, on this issue, the ``` ``` original petition requires to be remanded. ``` ``` Resultantly, these appeals are disposed of in ``` ``` the following manner: ``` ``` MACA No.1840 of 2019 ``` ``` a)The compensation under the head “Loss of ``` ``` 9 ``` ## `[MACA Nos.279/2020, 1840/2019]` ``` Earnings” is revised to Rs.21,000/-, instead of ``` ``` Rs.16,000/-, now awarded by the Tribunal. ``` ``` b)The compensation under the head “Pain and ``` ``` Suffering” is revised to Rs.50,000/-, from Rs.25,000/-, now awarded by the Tribunal. ``` ``` (c)In all other heads, the compensation awarded by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled to recover the compensation, as enhanced by this ``` ``` Court, from the respondent – Insurance Company, along with interest at the rate of 8% (modifying the rate of interest of 9% granted by the ``` ``` Tribunal, in view of the escalation granted by this Court) from the date of filing of the claim ``` ``` until it is realised. ``` ``` The appellant will also be entitled to ``` ``` [MACA Nos.279/2020, 1840/2019] ``` **==> picture [16 x 9] intentionally omitted <==** ``` proportionate costs on the enhanced amounts as ``` ``` ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of ``` ``` this judgment. ``` ``` MACA No.279 of 2020 ``` ``` This appeal is allowed and the original ``` ``` petition is remanded to the learned Tribunal ``` ``` solely to reconsider whether the Insurance ``` ``` Company can be allowed to recover the ``` ``` compensation paid by them to the claimant from the appellant and the owner of the vehicle. ``` ``` The learned Tribunal shall afford necessary ``` ``` opportunities to both sides, except the claimant, to produce and mark additional documents and ``` ``` [MACA Nos.279/2020, 1840/2019] ``` ``` 11 ``` ``` evidence and of further hearing; thus culminating ``` ``` in a final order on this issue, as expeditiously as is possible, but not later than eight months from the date of receipt of a copy of this judgment. ``` ``` For this purpose, the parties, except the claimant, will appear before the learned Tribunal at 11 A.M on 30.03.2023. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` SAS