MACA NO. 52 OF 2010

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 30[TH]DAY OF JANUARY 2023 / 10TH MAGHA,1944 ``` ## **`MACA NO. 52 OF 2010`** ``` OP(MV) 547/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`APPELLANT/APPLICANT:`** ``` SURENDRAN, S/O. SADASIVAN, ERE PERODE PUTHEN VEEDU, BACK SIDE OF MANU THEATRE, VENGANOOR, VIZHINJAM P.O., THIRUVANANTHAPURAM. ``` ``` BY ADV SRI.G.SUDHEER ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 VIJAYAN K., S/O.KUTTAN ACHARI, THUNDU VILAKATHU MELE PUTHEN VEEDU, NEAR VELLAMCODE JUNCTION, OOKKODU, KALLIYOOR, THIRUVANANTHAPURAM.`** - **`2 MURALI V., S/O.VELAPPAN, PULLOORKONATHU MELE VEEDU, BACK SIDE OF SREE NEELAKANDA THEATRE, KOVALAM P.O., VIZHINJAM, THIRUVANANTHAPURAM.`** - **`3 THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., THIRUVANANTHAPURAM.`** - **`4 DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., THIRUVANANTHAPURAM.`** - **`BY ADVS. R4 BY SRI.GEORGE CHERIAN THIRUVALLA R3 BY SRI.M.JACOB MURICKAN R2 BY SRI.LIJI.J.VADAKEDOM`** - **`SRI.K.P.SREEKUMAR KADAYANICKADU`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON 20.01.2023, THE COURT ON 30.01.2023 DELIVERED THE FOLLOWING: ``` MACA 52 of 2010 2 ## **J U D G M E N T** This appeal has been preferred by the claimant in OP(MV) No.547 of 2003 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, impugning the award dated 17.07.2009 on the ground of inadequacy of compensation. 2. The appellant on 28.05.2001, at 3.30 p.m., while pillion - riding KL-01/U-1681 through Venganoor Punnammoodu public road, that motorcycle hit against KL-01/L-2794 motorcycle, which came from the opposite direction and as a result, he was thrown down on the road, and he sustained injuries. The appellant suffered serious injuries including fracture of both bones of right leg. He was treated in various hospitals due to further complications of the injuries suffered, and he even suffered disability due to that accident. He approached the Tribunal claiming compensation of Rs.3,50,000/-. But the Tribunal awarded only Rs.64,720/-, against which, the appellant has preferred this appeal. 3. The 1[st] Respondent was the owner-cum-rider of the motorcycle, which hit the motorcycle, in which the appellant was travelling and according to the appellant, it was insured with the 3[rd] respondent-Insurance Company. The 2[nd] respondent was the MACA 52 of 2010 3 owner-cum-rider of KL-01/U-1681 motorcycle, in which the appellant was travelling and according to him, the 4[th] respondent was the insurer of that motorcycle. But, the 3[rd] respondent filed written statement denying the Policy of KL-01-L-2794 motorcycle and according to them, no Policy was issued with respect to that motorcycle during the relevant time. The 4[th] respondent-Insurance Company filed written statement contending that the Policy issued in respect of KL-01/U-1681, at the material time, was not covering a pillion rider and no additional premium had been paid for pillion rider. So, in effect, the motorcycle, in which the appellant was travelling, had no insurance coverage for a pillion rider and the other motorcycle was not having a policy at all, as on the date of accident. So, learned Tribunal, while passing the award, fixed the liability on respondents 1 and 2 jointly and severally, and respondents 3 and 4 were exonerated. 4. Before the Tribunal, no oral evidence was adduced from either side. Exts.A1 to A12 and B1 were marked. 5. Now let us re-analyse the facts and evidence to find out whether there is any illegality or impropriety in the impugned award warranting interference by this Court. 6. Heard learned counsel Sri.G.Sudheer appearing for the appellant, Sri.Liji J. Vadakedom, learned counsel appearing for the 2[nd] MACA 52 of 2010 4 respondent, Sri.M.Jacob Murickan, learned standing counsel for the 3[rd] respondent and Sri.George Cherian, learned standing counsel for the 4[th] respondent. 7. The appellant, a 35 year old casual labourer, met with the accident while pillion riding KL-01/U-1681 motorcycle ridden by the 2[nd] respondent. He sustained serious injuries as seen from Exts. A3 to A10 documents. He had suffered Type II compound fracture of both bones of right leg and he was treated at various hospitals, due to various complications, in connection with ununited fracture and infection. He suffered permanent disability also, as borne out from Ext.A11 Disability Certificate. 8. According to the appellant, he was a casual labourer, earning monthly income of Rs.3,750/-. But the Tribunal fixed his notional income @ Rs.1,500/- only. It is true that as a casual labourer, he may not have any documentary evidence to prove his income. But as a man of 35, in the year 2001, definitely he might have been earning monthly income more than that. Going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , he was eligible to get his notional income fixed at Rs.3,000/- in the year 2001. The learned Tribunal assessed his loss of earning for a period of three MACA 52 of 2010 5 months only. Exts. A3 to A10 documents will clearly show that from the date of accident till 2003, he was admitted in various hospitals and was undergoing various surgical procedures for the complications which arose out of the injuries he had suffered. So it is only just and reasonable to assess his loss of earning at least for a period of one year at the rate of Rs.3,000/- per month. So he is eligible to get Rs.36,000/- towards loss of earning for one year. Since he was already paid Rs.4,500/- under that head, he is eligible to get the balance Rs.31,500/- under the head ‘loss of earning’. 9. Towards extra nourishment, he was given only Rs.1,000/-. He was hospitalised for 74 days and on various occasions, he had undergone various surgical procedures also. So Rs.1,500/- more is awarded towards extra nourishment. 10. Towards bystander expenses, he was awarded only Rs.5,000/by the Tribunal. Considering the fact that he was hospitalised for 74 days, Rs.5,000/- more is to be awarded as it will be just and proper. 11. Towards pain and suffering, he was awarded only Rs.12,000/-. He was in hospital for 74 days as he had suffered fracture of both bones of right leg, and later there was non-union of bones and infection. Considering the prolonged inpatient treatment and the MACA 52 of 2010 6 surgical procedures undergone, Rs.13,000/- more towards pain and suffering seems to be just and proper. 12. The appellant suffered permanent disability also due to the injury he had suffered in the accident. Ext.A11 Disability Certificate shows his permanent disability as 12%. There was shortening of 15cm of his right leg due to chronic infection from the fracture, apart from stiffness and partial ankylosis noted by the Doctor. Since it was not a Disability Certificate issued by the Medical Board, the learned Tribunal rightly fixed the disability of the appellant as 8%, taking his monthly income as Rs.1,500/-. We have fixed the monthly income of the appellant @ Rs.3,000/-. So we have to work out the compensation for disability taking his monthly income @ Rs.3,000/-. The multiplier applicable is 16 as he was aged only 35. So the compensation for permanent disability will be Rs. 46,080/- (3000X12X16X8%). Since he was already paid Rs.23,040/- by the Tribunal, he is eligible to get the balance Rs.23,040/-. 13. Toward loss of amenities, he was awarded only Rs.7,680/- by the Tribunal. Ext.A11 Disability Certificate shows the various difficulties the appellant was suffering from the injuries he had suffered in the accident. There was shortening of 15cm of right leg, chronic pain over knee and right thigh joint, due to reactive arthritis etc. etc. which will MACA 52 of 2010 7 definitely affect his comfort in life in future also. Considering that fact, an additional amount of Rs.20,000/- can be awarded towards loss of amenities. 14. The compensation awarded under all other heads seems to be quite reasonable. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of<br>earning|Rs.4,500/-|Rs.36,000/-|Rs.31,500 /-| |Extra<br>nourishment|Rs.1,000/-|Rs.2,500/-|Rs.1,500/-| |Bystander<br>expenses|Rs.5,000/-|Rs.10,000/-|Rs.5,000/-| |Pain and<br>suffering|Rs.12,000/-|Rs.25,000/-|Rs.13,000/-| |Permanent<br>disability|Rs.23,040/-|Rs.46,080/-|Rs.23,040/-| |Loss of<br>amenities|Rs.7,680/-|Rs.27,680/-|Rs.20,000/-| |Total|||Rs.**94,040**/-| MACA 52 of 2010 8 15. In the result, the appellant is entitled to get enhanced compensation of Rs.94,040/- (31500 + 1500 + 5000+ 13000+23040+ 20000). 16. Ext.A2 copy of Final Report shows that the incident was accidental and no charge-sheet was laid against any of the riders of the motorcycle. So Ext.A2 was submitted as a refer-charge. But the learned Tribunal found that if the riders of the motorcycles were careful, the accident could have been averted. The very fact that the two motorcycles collided with each other, tempted the Tribunal to find that both of them were rash and negligent, and that appears to be correct, in the absence of evidence to prove it otherwise. 17. As already found, KL-01/U-1681 motorcycle, in which appellant was pillion riding, was not having Policy, covering the pillion rider. The other motorcycle KL-01/L-2794 was not having a valid Insurance Policy at the time of accident. So the Tribunal rightly exonerated respondents 3 and 4 and fixed the liability on respondents 1 and 2 jointly and severally, to compensate the appellant. Before the Tribunal, respondents 1 and 2 were ex parte. But before the Appellate Court, both of them entered appearance. But no attempt was made from their part, to show that either of them were not rash or negligent, so as to exonerate from their liability to compensate the MACA 52 of 2010 9 appellant. So this Court finds no reason to disturb the finding of the Tribunal that respondents 1 and 2 are liable to compensate the appellant jointly and severally. 18. In the results, respondents 1 and 2 are directed to deposit the enhanced compensation of Rs.94,040/(Rupees Ninety Four Thousand and Forty only) in the bank account of the appellant with interest @7.5% per annum from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475 /2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/25.01.2023.