P. R. Radhakrishnan v. Merlin Davis (Minor) through father & guardian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937 RP.No. 348 of 2015 () IN MACA.981/2011 ---------------------------------------- AGAINST THE ORDER/JUDGMENT IN MACA 981/2011 of HIGH COURT OF KERALA DATED 27-11-2013 REVIEW PETITIONER(S)/RESPONDENT: -------------------------------------------------------------- P.R.RADHAKRISHNAN S/O.RAMAKRISHNAN, AMBADY, TM NAGAR P.O.NALLEPPILLY PALAKKAD. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENT(S)/APPELLANT: ------------------------------------------------ MERLIN DAVIS (MINOR) REP.BY FATHER & GUARDIAN, DAVIS VALAPPIL HOUSE IRAVIMANGALAM P.O, THRISSUR DISTRICT. R BY SRI.P.V.BABY THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 19-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## R.P.NO.348/2015 IN MACA NO.981/2011 APPENDIX ANNEXURE A1-COPY OF THE JUDGMENT IN CC 987/2007 OF JFCM, CHALAKUDY. ANNEXURE A2-AFFIDVIT, PETITION AND HEARING NOTICE IN EXECUTION PETITION IA 2049/2011 BEFORE MACT, IRINJALAKUDA. // TRUE COPY // P.S.TO JUDGE KAV/ ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= R.P.No.348 of 2015** ## **in M.A.C.A.No.981 of 2011 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 19[th] day of February, 2016** ## **ORDER** ## _**P.N.Ravindran, J.**_ The prayer in this review petition is to review and recall the judgment delivered by a Division Bench of this court of which one of us (K.Ramakrishnan, J.) was a member on 27.11.2013 in M.A.C.A.No.981 of 2011. The brief facts of the case are as follows: 2. The respondent in this review petition was sustained injuries in a motor accident that took place on 25.3.2007. She thereupon filed O.P.(M.V.)No.449 of 2007 in the Motor Accidents Claims Tribunal, Irinjalakkuda under section 166 of the Motor Vehicles Act, 1988, claiming a total sum of Rs.3,43,000/- as compensation. She had in the claim petition which was filed through her next friend and father averred that at about 12 noon on 25.3.2007 while she was walking along the western side of the National Highway (Ankamaly-Chalakkudy Road), a motor car bearing registration No.KL-07/T-388 owned and driven by the petitioner herein in a rash and negligent manner and without observing the traffic rules, hit her from behind and in that ## **R.P.No.348 of 2015 in M.A.C.A.No.981 of 2011** ## **-:2:-** accident she sustained serious injuries. Though the petitioner herein who was joined as the sole respondent in the claim petition received notice he did not enter appearance or file a written statement, with the result, he was set exparte. 3. The Motor Accidents Claims Tribunal, after considering the uncontroverted pleadings and the uncontested evidence adduced on the side of the claimant, held that the accident took place on account of the rash and negligent driving of the sole respondent therein namely the petitioner in the instant review petition. In coming to the said conclusion, the Motor Accidents Claims Tribunal relied on Ext.A1 F.I.R. and Ext.A2 charge sheet. The Tribunal thereafter awarded the sum of Rs.71,529/- as compensation and allowed the claimant to realise the said sum with interest at 7% per annum from the date of petition till realisation as also proportionate costs from the sole respondent in the claim petition (the petitioner herein). 4. The award of the Motor Accidents Claims Tribunal was passed on 31.1.2011. The learned counsel appearing for the claimant applied for a certified copy of the said award on 31.1.2011. The copy was made ready on 9.3.2011 and it was delivered over to the claimant's counsel on 11.3.2011. The claimant thereafter filed M.A.C.A.No.981 of 2011 in this court on 7.6.2011, seeking enhancement of the compensation awarded by the Tribunal. The said ## **R.P.No.348 of 2015 in M.A.C.A.No.981 of 2011** ## **-:3:-** appeal was admitted and notice ordered to the sole respondent therein (the petitioner herein) on 22.7.2011. The counsel appearing for the appellant did not however take timely steps to serve notice on the respondent. Notice on the appeal was sent from this court to the respondent in the appeal (the petitioner herein) only on 3.4.2013 with the hearing date fixed as 20.5.2013. The notice was served on the respondent and he entered appearance through counsel on 30.5.2013. 5. M.A.C.A.No.981 of 2011 was heard and disposed of by a Division Bench of this court by judgment delivered on 27.11.2013. By that judgment, the Division Bench awarded an enhanced compensation of Rs.81,600/- and directed the respondent in the appeal (the petitioner herein) to deposit the said amount within two months together with interest at 9% per annum from the date of the claim petition till the date of payment. The relief sought in the instant review petition is to review and recall the said judgment. 6. The review petitioner has raised three main contentions. The first is that he was acquitted by the Court of the Judicial Magistrate of First Class, Chalakkudy in C.C.No.987 of 2007 by Annexure A1 judgment delivered on 18.5.2010 after entering a finding that the prosecution has failed to adduce any evidence to implicate him and therefore, the finding entered by the Tribunal that ## **R.P.No.348 of 2015 in M.A.C.A.No.981 of 2011** ## **-:4:-** the accident took place on account of his negligence cannot be sustained. The second contention raised is that the claimant had filed I.A.No.2049 of 2011 in O.P.(M.V.)No.449 of 2007 under section 174 of the Motor Vehicles Act, 1988 for an order directing the District Collector, Thrissur to initiate revenue recovery proceedings to realise the amount awarded by the Tribunal with interest and costs, that pursuant thereto, he deposited the sum of Rs.1,07,769/towards full and final satisfaction of the award passed by the Tribunal, that the said amount was withdrawn and therefore, the claimant could not have prosecuted the appeal. The third ground raised is that even applying the principles laid down by the Apex Court in **Master Mallikarjun v. Divisional Manager, The National Insurance Co. Ltd & Anr.** [2013 (3) KLJ 815] this court should have, while computing the enhanced compensation payable in terms of the said judgment, deducted the sum of Rs.13,000/awarded by the Tribunal as compensation under the head pain and suffering. 7. We heard Sri.P.Vijayakumar, learned counsel appearing for the petitioner and Sri.A.N.Santhosh, learned counsel appearing for the respondent/claimant. During the course of the hearing, Sri.P. Vijayakumar, learned counsel appearing for the petitioner submitted that the petitioner is not pursuing the first two among the three ## **R.P.No.348 of 2015 in M.A.C.A.No.981 of 2011** ## **-:5:-** grounds mentioned above and that he is only pursuing the third ground namely that the sum of Rs.13,000/- awarded by the Tribunal under the head pain and suffering should have been reduced from the enhanced compensation awarded by this court, even applying the principles laid down by the Apex Court in **Master Mallikarjun** 's case (supra). 8. Sri.A.N.Santhosh, learned counsel appearing for the respondent/claimant submitted that going by the decision of the Apex Court in **Master Mallikarjun** 's case (supra) the claimant was entitled to be compensated under the head loss of earnings of the mother for 47 days for the reason that the claimant had undergone treatment as an inpatient for 47 days in a hospital and therefore, there is no reason why the sum of Rs.13,000/- should be deducted from the compensation awarded by this court. Learned counsel also submitted that the claimant has suffered 15% disability but only 4% disability has taken into account by the Tribunal and therefore, for that reason also no interference is called for. 9. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. Though M.A.C.A. No.981 of 2011 was filed on 7.6.2011 and it was admitted and notice ordered to the respondent on 22.7.2011, the claimant's ## **R.P.No.348 of 2015 in M.A.C.A.No.981 of 2011** ## **-:6:-** counsel took steps to serve notice on the respondent only belatedly. Therefore notice was sent only on 3.4.2013 with the hearing date fixed as 20.5.2013. Even assuming that the respondent in the appeal alone has to be blamed for not entering appearance before the Tribunal and for the consequences that followed, the respondent in the appeal could not have been blamed for not entering appearance in this court prior to May 2013. It was in the interregnum that he deposited the amount payable under the award passed by the Tribunal and it was withdrawn by the claimant. However in view of the fact that the learned counsel appearing for the petitioner is not pursuing his arguments in that regard, we do not propose to go further into that aspect of the matter. It is evident from the impugned judgment that it was applying the principles laid down by the Apex Court in **Master Mallikarjun** 's case (supra) that this court held that the claimant is entitled to be awarded a consolidated sum of Rs.1,00,000/- as compensation under the head pain and suffering already undergone and to be suffered in future, mental and physical shock, hardships, inconvenience, discomfort and loss of amenities in life. The Apex Court has in the aforesaid decision held that if the disability is only upto 10%, the total compensation payable under the aforesaid heads should be only Rs.1,00,000/- unless there are exceptional circumstances to adopt a different yardstick. From the ## **R.P.No.348 of 2015 in M.A.C.A.No.981 of 2011** ## **-:7:-** said amount of Rs.1,00,000/-, this court deducted only the sum of Rs.18,400/- comprised of the sum of Rs.14,400/- awarded under the head disability and Rs.4,000/- under the head loss of amenities and held that the claimant would be entitled to receive the sum of Rs.81,600/-. This court did not deduct the amount awarded as compensation under the head pain and suffering while fixing the enhanced compensation applying the principles laid down by the Apex Court in **Master Mallikarjun** 's case (supra). We are therefore of the considered opinion that there is an error apparent on the face of the record in the matter of computation of the compensation payable in the instant case, applying the principles laid down by the Apex Court in **Master Mallikarjun** 's case (supra). We are satisfied on an examination of the materials on record that the sum of Rs.13,000/- awarded by the Tribunal under the head pain and suffering should also have been reduced from the sum of Rs.1,00,000/- payable as compensation in terms of the decision of the Apex Court in **Master Mallikarjun** 's case (supra). The result would be that liability of the petitioner in the review petition to pay compensation would stand reduced from Rs.81,600/- to Rs.68,600/-. Though the learned counsel appearing for the claimant submitted that the claimant is entitled to something more even applying **Master Mallikarjun** 's case (supra) as the claimant has not filed a ## **R.P.No.348 of 2015 in M.A.C.A.No.981 of 2011** ## **-:8:-** review petition and did not advance any arguments in that regard at the point of time the appeal was disposed of, we are not persuaded to examine the said contention. For the reasons stated above, we allow the review petition to the extent mentioned above and redetermine the enhanced compensation payable by the respondent in M.A.C.A.No.981 of 2011 to the appellant therein as Rs.68,600/-. The review petitioner shall deposit the said amount together with interest at 9% per annum from the date of petition till the date of deposit within three months from today. Needless to say, the amount already deposited by him pursuant to the interim order passed by this court on 30.3.2015 in W.P.(C)No.10346 of 2015 shall be given credit to. No costs. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- **K.RAMAKRISHNAN JUDGE** ## **vpv**