Muraleedharan Pillai v. Preetha w/o GOPAKUMAR and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 MACA NO. 1598 OF 2014 ``` ``` AGAINST THE AWARD DATED 04.10.2013 IN OP(MV) NO.1692 OF 2011 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## **`APPELLANT/PETITIONER:`** ``` MURALEEDHARAN PILLAI AGED 62 YEARS, S/O.SANKU PILLAI, KOTHAMANGALATHU VEEDU, NADUVILAKKARA MURI, THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM. ``` ``` BY ADV SRI.C.RAJENDRAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 PREETHA W/O.GOPAKUMAR, KOPPARA PADEETTATHIL, CHANGANKULANGARA, OCHIRA, KOLLAM 690526.`** - **`2 GOPAKUMAR S/O.RAGHAVAN, KOPPARA PADEETTATHIL, CHANGANKULANGARA, OCHIRA, KOLLAM - 690 526.`** - **`3 THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED, KAYAMKULAM BRANCH, KAYAMKULAM - 690 502.`** ``` BY ADVS. SRI.GEORGE A.CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1598 OF 2014 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P(M.V) No.1692/2011 on the files of the Motor Accidents Claims Tribunal, Kollam. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 18.05.2011. 2. According to the appellant, the accident occurred when the motorcycle ridden by him was hit by a car driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner of the car and it was insured with the 3[rd] respondent. The appellant was aged 60 years at the time of the accident and he was a retired employee of M/s KMML, Chavara. According to him, he was conducting a business and was earning an amount of Rs.7,000/- per month. He sustained serious injuries in the accident. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein, they admitted the coverage of policy. However, they denied the negligence on the part of the 2[nd] ``` MACA NO. 1598 OF 2014 ``` ``` 3 ``` respondent and it was contended that the accident occurred due to the negligence of the appellant himself. It was also contended that the 2[nd] respondent was not having a valid driving license to drive the said vehicle. The quantum of compensation was also disputed by them. 4. The said claim petition was tried along with O.P.(M.V.) No.1642/2011. The evidence adduced by the claimants in the claim petitions consists of oral testimony of PW1 and Exts.A1 to A14. No evidence was adduced by the respondents. After considering the materials placed on record the Tribunal arrived at the finding that the accident occurred due to the negligence on the part of the 2[nd] respondent in driving the car and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,64,118/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 5. Heard Sri.C.Rajendran, learned counsel appearing for ``` MACA NO. 1598 OF 2014 ``` ``` 4 ``` the appellant and Sri.George A. Cherian, learned counsel appearing for the 3[rd] respondent. 6. The only question that arises for consideration is whether any enhancement of compensation is to be awarded or not. It is to be noted that, in the accident, the appellant suffered the following injuries: Swelling and deformity right leg. Crush injury right foot with degloving of 4[th] and 5[th] toes. Fracture both bones right leg with segmental fracture tibia. Fracture P1 3[rd] and 4[th] toe. Considering the serious nature of injuries, even though no disability certificate was produced, the Tribunal assessed 8% functional disability and calculated the compensation for disability, by taking the monthly income of Rs.3,000/-. As far as the monthly income of Rs.3,000/- is concerned, the same appears to be on the lower side considering the fact that the accident occurred in the year 2011. Ofcourse it is true that, there is no proper evidence to assess the monthly income. However, it is to be noted that, the Honourable Supreme Court in **Ramachandrappa v. Manager,** ``` MACA NO. 1598 OF 2014 ``` ``` 5 ``` **Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] was pleased to take the monthly income of an ordinary employee, without any evidence, as Rs.4,500/- for the year 2004. Similarly in **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] the Honourable Supreme Court was pleased to fix the monthly income of a vegetable vendor as Rs.6,500/- in respect of an accident that occurred in the year 2007. In such circumstances, I am of the view that the monthly income of Rs.7,000/- claimed by him, cannot be treated as unreasonable for the year 2011 and hence the same is accepted. While reassessing the compensation with the revised monthly income and keeping the other parameters adopted by the Tribunal intact, the amount would come to Rs.47,040/-(7000 x 12 x 7 x 8/100). The amount already awarded by the Tribunal under this head is Rs.20,160/- and thus the additional amount comes to Rs.26,880/-. 7. Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings. The Tribunal awarded compensation ``` MACA NO. 1598 OF 2014 ``` ``` 6 ``` under this head for a period of four months and the said period appears to be reasonable. Consequent to the revision of monthly income as Rs.7,000/-, a further sum of Rs.16,000/- is awarded under this head. 8. The amount awarded by the Tribunal towards pain and suffering is Rs.25,000/- which appears to be on the lower side. It is evident from the records that the appellant sustained a crush injury right foot degloving of 4[th] and 5[th] toes. Besides the same, he also suffered fracture both bones right leg with segmental fracture tibia. He suffered fracture of P1 3[rd] and 4[th] toe as well. Consequent to the injuries he had undergone inpatient treatment for a period of 33 days as well. The records would clearly indicate that even after the discharge he was undergoing treatment as an outpatient for a considerable time. When considering all the aforesaid aspects, I deem it appropriate to grant a further sum of Rs.15,000/- towards pain and suffering. 9. It is seen that no amount was awarded by the Tribunal towards loss of amenities. The injuries sustained by the appellant are very serious in nature. The Tribunal assessed the percentage ``` MACA NO. 1598 OF 2014 ``` ``` 7 ``` of functional disability as 8% as well. The said injuries would certainly affect the quality of his life and therefore, he should be reasonably compensated for the same. In the facts and circumstances of the case, I deem it appropriate to grant an amount of Rs.30,000/- under this head. Thus, the total additional compensation is determined as Rs.87,880/- (26,880 + 16,000 + 15,000 + 30,000). In the result, this appeal is allowed. The award dated 04.10.2013 passed by the Motor Accident Claims Tribunal, Kollam in O.P.(M.V.) No.1692/2011 is hereby modified by granting an additional compensation of Rs.87,880/- (Rupees eighty seven thousand eight hundred and eighty only) and the said amount shall be deposited by the 3[rd] respondent with interest @ 8% per annum from the date of petition till realisation, within a period of three months from the date of receipt of a copy of this judgment. It is clarified that as the delay of 107 days in filing the appeal was condoned by this Court, subject to the condition that the appellant shall not be entitled to interest, pertaining to the said period for the additional amount, the 3[rd] respondent shall be at liberty to exclude ``` MACA NO. 1598 OF 2014 ``` ``` 8 ``` the said period while computing the interest on the additional compensation. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs