P. J. Joseph v. Moideen Koya, Aneesh Babu and Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 M.A.C.A No. 2402 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT IN O.P(MV) No. 1083/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,MANJERI ``` ## **`APPELLANT/APPLICANT:`** ``` P.J.JOSEPH AGED 60 YEARS S/O.JOSEPH, MANALI, CHUNGATHARA P.O., MALAPPURAM DISTRICT. ``` ``` BY ADVS. SRI.T.K.AJITH KUMAR SRI.K.S.ARUNDAS SRI.P.VINODKUMAR ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 MOIDEEN KOYA S/O.KUNHALAVI, AMBALANCHERI HOUSE, COURT ROAD, GUDALLUR P.O., NILGIRIS (DT), TAMILNADU, PIN:634 212 (DRIVER)` - `2 ANEESH BABU S/O.SHOWKATH, KOZHISSERY HOUSE, KARULAI P.O., MALAPPURAM DT., PIN-679 344 (OWNER)` - `3 THE ORIENTAL INSURANCE CO.LTD. "PRANAVAM", MELE PATTAMBI PO., PALAKKAD DT., PIN679303 (INSURER) BY ADVS. SRI.TITUS MANI SRI.TITUS MANI` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 2402 of 2012 2 ## **JUDGMENT** This appeal is preferred by the claimant in O.P. (MV) No. 1083 of 2007 on the files of the Motor Accidents Claims Tribunal, Manjeri. The status of the parties is referred to as it appears in the claim petition. 2. Heard Sri. T.K. Ajithkumar, the learned counsel for the petitioner and Sri. Titus Mani, the learned counsel for the respondent Insurance Company. 3. According to the petitioner, while he was travelling on the pillion of a motor cycle ridden by his son, a lorry owned by the 2[nd] respondent, driven by the 1[st] respondent and insured with the 3[rd] respondent, hit against the motor cycle and the petitioner sustained serious injuries. The petitioner M.A.C.A No. 2402 of 2012 3 claimed an amount of Rs. 2,00,000/- as compensation for the injuries sustained in the accident. 4. The Tribunal found that the petitioner’s son, the rider of the motorcycle was not having driving license at that time and his inexperience also contributed to the accident. Though the Tribunal awarded an amount of Rs. 87,647/- as compensation, the liability of the insurer was limited to 50%, attributing contributory negligence on the part of the rider of the motor cycle. Challenging the award of the Tribunal, the petitioner has preferred this appeal. 5. According to the petitioner, the finding of the Tribunal regarding the contributory negligence cannot be sustained. It is contended that the rider of the motorcycle was not a party to the claim petition and that he was not examined. It is also contended that M.A.C.A No. 2402 of 2012 4 the amount of compensation awarded is totally inadequate. 6. The Tribunal attributed contributory negligence on the part of the rider of the motorcycle. The Tribunal found that there is an equal possibility that it was the rider’s inexperience and incompetence that led to the accident. He was not having a valid driving license. That itself cannot lead to a conclusion that he was negligent or that he had contributed to the accident. Accordingly, the finding of the Tribunal that the rider of the motor cycle had contributed to the accident cannot be sustained. 7. The Tribunal has taken the monthly income of the petitioner as Rs. 3,000/-. The petitioner was a pastor. Going by the decision of the Apex Court in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited [ (2011) 13** M.A.C.A No. 2402 of 2012 5 **SCC 236]** , the notional income of the petitioner can be taken as Rs. 6,000/- per month. The Tribunal has taken the multiplier as 11 and the functional disability of the petitioner as 15%. On the basis of the aforesaid factors, the compensation payable to the petitioner for loss of earnings is re-fixed as Rs. 18,000/(Rs.6,000 × 3 months). Since the petitioner has already been awarded an amount of Rs. 9,000/-, he is entitled to an additional amount of Rs. 9,000/- under the said head. 8. The Tribunal has awarded an amount of Rs. 29,700/- under the head loss of earning power. Since I have refixed the notional monthly income, the compensation under the said head has to be recalculated. Accordingly, compensation for loss of earning power is reworked as Rs.1,18,800/(6,000×12×11×15/100). Therefore, the petitioner will M.A.C.A No. 2402 of 2012 6 be entitled for an additional amount of Rs. 89,100/(1,18,800 – 29,700) towards loss of earning power. 9. The Tribunal has awarded an amount of Rs. 4,500/- towards partial loss of earnings. Since the petitioner is awarded compensation under the heads loss of earning and loss of earning power, no separate amount is payable to the petitioner under the said head. Accordingly, the amount of Rs. 4,500/- paid under the head partial loss of earnings has to be deducted from the total compensation. 10. Towards compensation for loss of amenities and convenience, only an amount of Rs. 10,000/- has been awarded. Taking note of the injuries sustained by the petitioner and the disability certified by the doctor, I find that the petitioner is entitled for an M.A.C.A No. 2402 of 2012 7 additional amount of Rs. 10,000/- under the head loss of amenities. 11. I find that the compensation awarded under other heads is just and reasonable. 12. Accordingly, the petitioner will be entitled for an enhanced compensation of Rs. 1,03,600/- (9,000 + 10,000 +89,100 – 4,500). The Tribunal has deducted 50% of the award amount,ie, Rs. 43,824/- towards contributory negligence. Since I have already set aside the finding of the Tribunal as regards the contributory negligence, the petitioner will be entitled for total enhanced amount of Rs. 1,47,424/- (1,03,600 + 43,824). 13. In the result, the petitioner is entitled for an additional amount of Rs. 1,47,424/- (One Lakh Forty Seven Thousand Four Hundred and Twenty Four Only). M.A.C.A No. 2402 of 2012 8 The 3[rd] respondent Insurance Company shall deposit the said amount before the Tribunal with 9% interest per annum from the date of petition till date of deposit and proportionate cost within a period of two months from the date of receipt of a certified copy of this judgment. While calculating the interest, the petitioner will not be entitled for interest for the delay of 48 days in filing the appeal as per order dated 03.02.2022 in C.M. Application No. 1/2012. The appeal is disposed of as above. bnu **Sd/MURALI PURUSHOTHAMAN JUDGE**