MACA Nos. 2026 & 1600 of 2013, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** ## **MACA.No.1600 OF 2013** **AGAINST THE AWARD IN OPMV 566/2011 DATED 08-05-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT:** **NEW INDIA ASSURANCE CO. LTD. KOTTAYAM REP. BY THE DY. MANAGER, REGIONAL OFFICE KOCHI. BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENTS:** **1 RAMESH W.P.DIVISION LAYAM (H), KARADIKUZHY, PEERUMEDU, NOW RESIDING AT GREENS BUILDING, T.B.ROAD, KOTTAYAM PIN.688520. 2 STEPHAN PARAKKAL, KARADIKUZHY POST, PEERUMEDU, PIN.688520** **R1 BY ADV. SRI.K.A.HASHIM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2021, ALONG WITH MACA.2026/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` M.A.C.A. Nos. 2026 & 1600 of 2013 ``` ``` 2 ``` ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** **MACA.No.2026 OF 2013** **AGAINST THE AWARD IN OPMV 566/2011 DATED 08-05-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT:** **RAMESH** **S/O.KANNAN,W.P.DIVISION LAYAM** **HOUSE,KARADIKUZHY,PEERUMEDU NOW RESIDING AT GREENS BUILDING,T.B.ROAD,KOTTAYAM,REPRESENTED BY HIS FATHER AND NEXT FRIEND KANNAN,S/O.NARAYANAN,AGED 53 YEARS,W.P.DIVISION LAYAM** **HOUSE,KARADIKUZHY,PEERUMEDU NOW RESIDING AT GREENS BUILDING,T.B.ROAD,KOTTAYAM.** **BY ADVS. SRI.K.A.HASHIM SRI.M.I.ISMAIL** ## **RESPONDENTS:** **1 STEPHAN PARAKAL,KARADIKUZHY.P.O, PEERUMEDU,PIN-685531.** **2 THE NEW INDIA ASSURANCE CO.LTD DIVISIONAL OFFICE, KOTTAYAM,PIN-686001.** **R1-2 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2021, ALONG WITH MACA.1600/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` M.A.C.A. Nos. 2026 & 1600 of 2013 ``` ``` 3 ``` ## **`P.V.KUNHIKRISHNAN, J. ======================= M.A.C.A. Nos. 2026 & 1600 of 2013 ======================= Dated this the 31[st] day of March 2021`** ## **`J U D G M E N T`** ``` These two appeals are connected and therefore, I am disposing these two appeals by a common judgment. M.A.C.A No. 1600/2013 is filed by the 2[nd] respondent- insurance company in O.P.(M.V) No. 566/2011 on the file of the Motor Accidents Claims Tribunal, Kottayam. M.A.C.A No. 2026/2013 is filed by the petitioner in the above claim petitions (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2. The short facts are like this: - ``` ``` On 11.08.2010 at about 4.30 p.m., the injured Ramesh was travelling in an autorickshaw bearing Registration No. KL 37/4912 driven by the 1[st] respondent ``` ``` 4 ``` ## `M.A.C.A. Nos. 2026 & 1600 of 2013` ``` along the Kumaly-Kottayam, KK Road from Pattumala to Pambanar bhagam. The 1[st] respondent was driving the autorickshaw in a rash and negligent manner at excessive speed and when the autorickshaw reached at the south of Pattumalpalli, the autorickshaw overturned towards the left side of the road and the petitioner got thrown out of the autorickshaw and sustained grievous injuries. The injured was taken immediately to the Taluk Headquarters Hospital, Peerumedu and from there referred to the Medical College Hospital, Kottayam. According to the petitioner, the accident occurred due to the rash and negligent driving of the auto rickshaw by the 1[st] respondent. The 1[st] respondent is the registered owner cum driver of the autorickshaw. The autorickshaw was insured with the New India Assurance Company Limited. The 2[nd] respondent is the insurer. According to the petitioner, respondents are jointly and severally liable to pay compensation to the petitioner. ``` ``` 3. To substantiate the case, Exhibits A1 to A16 ``` ``` 5 ``` ## `M.A.C.A. Nos. 2026 & 1600 of 2013` ``` were marked on the side of the petitioner. Exhibits X1 is the disability certificate. Ext. B1 is the policy certificate. One witness was also examined as PW1 on the side of the petitioner. After going through the evidence and documents, the tribunal found that, the petitioner is entitled an amount of Rs. 17,23,760/- with interest at the rate of 9% from the date of application till realization. The claim of the petitioner was Rs.24,60,000/- Aggrieved by the quantum of the compensation, the petitioner filed MACA No. 2026/2013. The New India Assurance Company Ltd filed MACA No. 1600/2013 contenting that the compensation awarded is excessive. ``` ``` 4. Heard the learned counsel for the appellant and the respondents in both the appeals. ``` ``` 5.The learned counsel for the insurance company submitted that, the tribunal granted an amount of Rs. 60,000/- towards the loss of earning after giving compensation for permanent disability. According to the learned counsel, the tribunal concluded that, there is ``` ``` 6 ``` ## `M.A.C.A. Nos. 2026 & 1600 of 2013` ``` 100% disability. In such situation the tribunal erred in allowing an amount of Rs.60,000/- towards the loss of earning again. The learned counsel submitted that, granting such an amount by the tribunal is illegal. The learned counsel also submitted that, the amount awarded by the tribunal on the other heads are also excessive. ``` ``` 6.The tribunal found that, there is 100% permanent disability to the petitioner and thereafter, assessed the compensation for permanent disability. In such circumstances, according to me, the compensation awarded for loss of earning is illegal. I think, the amount of Rs. 60,000/- awarded towards the loss of earning in this case is to be interfered. ``` ``` 7.The learned counsel for the petitioner contended that, the petitioner was an autorickshaw driver and he was getting Rs.7,500/- as monthly income. The tribunal without considering the realities fixed the notional income as Rs. 4,500/-. The learned counsel submitted that, the monthly income claimed by the ``` ``` M.A.C.A. Nos. 2026 & 1600 of 2013 ``` ``` 7 ``` ``` petitioner may be accepted. I think, there is some force in the argument of the petitioner. In Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236], the Apex Court fixed an amount of Rs.4,500/- as monthly income to a coolie in the year 2004. The accident in this case happened in 2010. If that is taken as a basis, this Court is justified in fixing the monthly income of the petitioner as Rs.7,500/- which is claimed by the petitioner. Then the compensation allowed by the tribunal for the permanent disability is to be reassessed in the following manner:- ``` ``` Rs.7500 X 12 X 18 = Rs.16,20,000/- ``` ``` 8.An amount of Rs. 9,72,000/- is already given by the tribunal and that is to be deducted from the above amount. The balance amount will be Rs.6,48,000/-. ( Rs.16,20,000-Rs.9,72,000 = Rs.6,48,000/-). ``` ``` 9.Therefore, the enhanced compensation entitled by the petitioner towards the permanent disability is Rs.6,48,000/-. ``` ``` 8 ``` ## `M.A.C.A. Nos. 2026 & 1600 of 2013` ``` 10. The learned counsel for the petitioner submitted that, even though the claim of the petitioner is only Rs.24,60,000/-, this Court may kindly enhance the compensation further, taking into consideration the pathetic situation of the petitioner. The learned counsel submitted that, the petitioner is fully bed ridden and he is not in a position to do any work. Of course, the submission made by the learned counsel for the petitioner about the condition of the petitioner may be correct. But, I perused the compensation awarded by the tribunal on different heads. I think, in almost all heads the tribunal awarded sufficient amount and that also in some heads more than the claim. While fixing the compensation, this Court has to decide a just compensation. If the enhanced compensation is also added to the amount already awarded by the tribunal, it will be almost around the total claim of the petitioner. In such circumstances, according to me, no further enhancement is necessary in the facts and circumstances ``` ``` 9 ``` ## `M.A.C.A. Nos. 2026 & 1600 of 2013` ``` of the case. ``` ``` Therefore, these two appeals are disposed in the following manner; ``` ``` 1.MACA No. 1600/2013 is allowed in part. The compensation awarded for loss of earning (Rs.60,000/-) is set aside. ``` ``` 2.MACA No. 2026/2013 is allowed in part. The impugned award is modified to the effect that the appellant is entitled an enhanced compensation of Rs.6,48,000/- with interest @ 9% p.a from the date of application till realisation. The respondent No.2 is directed to pay the enhanced amount with interest to the petitioner. ``` ## `(Sd/-)` ## **`P.V.KUNHIKRISHNAN JUDGE`** ``` LU ```