Pradeepkumar K.G. Komasserryil v. Sabu and Others

1 MACA.No.184 OF 2013 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **MACA.No.184 OF 2013** **AGAINST THE AWARD IN OPMV 439/2009 DATED 24-02-2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/S:** **PRADEEPKUKMAR.K.G. KOMASSERRIYIL HOUSE, MALAM P.O., MANARCADU, KOTTAYAM.** **BY ADV. SRI.P.M.NATESAN** ## **RESPONDENT/S:** |**1**|**SABU,VETTIKKADU HOUSE, NEENDOOR P.O., KOTTAYAM,**| |---|---| ||**PIN-686601.**| |**2**|**KOCHUMON @ THOMAS SKARIAH**| ||**PALATHRA HOUSE, THIRUVANCHOOR P.O., PIN-686037.**| |**3**|**THE NEW INDIA ASSURANCE CO. LTD.**| ||**KOTTAYAM, PIN-686001.**| |**4**|**THOMAS L.**| ||**THARATHATTEL HOUSE, THIRUVANCHOOR, KOTTAYAM, PIN-**| ||**686037 ( DELETED AS PER ORDER DATED 25.2.2021 IN IA**| ||**1/2021 IN MJC 293/2019 IN MACA 184/2013)**| |**5**|**SUNIL KURIAKOSE**| ||**KOTTATHIL HOUSE, CHAPPATHU, AMAYANNOOR P.O.,**| ||**AYARKUNNAM, PIN 686025.**| **BY ADV. SRI.GEORGE CHERIAN THIRUVALLA BY ADV. SRI.A.K.HARIDAS BY ADV. SRI.K.S.MURALIKRISHNAN NAIR BY ADV. SMT.PINKU H.THALIATH BY ADV. SRI.T.M.RAMAN KARTHA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-03-2021, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:** 2 MACA.No.184 OF 2013 ## **C.S.DIAS, J. ====================== MACA No.184 of 2013** ## **====================== Dated this the 24[th] day of March, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 439/2009 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by him in an accident on 11.09.2008. 3. The case of the petitioner, in brief, was that while he was travelling in an auto rickshaw bearing registration No.KL 5/H 1124 driven by the second respondent along the Malam – Thiruvanchoor road, while the auto risckshaw reached near 3 MACA.No.184 OF 2013 Kizhakkedathupady, a car bearing registration No.KL 5/A 511, driven by the fifth respondent at excessive speed, hit on the auto rickshaw and the petitioner sustained injuries. He was taken to the Matha Hospital, Thellakam and, thereafter, to the Medical Trust Hospital, Ernakulam. The second respondent was the driver of the auto rickshaw and the fifth respondent was the driver of the car. The accident occurred due to the negligence on the part of the second and fifth respondents. The first respondent is the registered owner of the auto rickshaw and the same was insured with the third respondent. The fourth respondent is the registered owner of the car. The petitioner was employed abroad and was getting a monthly income of Rs.35,000/-. Hence, the respondents 1 to 5 are liable to compensate the petitioner, which he quantified at Rs.5,33,500/-. 4. The respondents 1,2,4 and 5 did not contest the proceedings and were set ex parte. 5. The third respondent – the Insurance Company - filed a written statement, inter alia, contending that 4 MACA.No.184 OF 2013 the accident did not occur due to the negligence on the part of the second respondent – the driver of the auto rickshaw. The accident occurred only due to the negligence on the part of the fifth respondent – the driver of the car. The second respondent was not holding a valid driving licence as on the date of accident. Moreover, the second respondent was under the influence of alcohol. Even though the auto rickshaw had a valid insurance policy, as there was a violation of the policy conditions, the third respondent was not liable to pay any amount as compensation. Hence, the claim petition as against the third respondent be dismissed. 6. The petitioner marked Exts A1 to A8 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the third respondent to pay an amount of 1,59,435/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisaton with proportionate costs and then realise 5 MACA.No.184 OF 2013 the amount from the first respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard Sri.P.M.Natesan, the learned counsel appearing for the appellant/petitioner, Smt.Latha Susan Cherian, the learned counsel appearing for the third respondent/third respondent and Smt.Pinku H. Thaliath, the learned counsel appearing for the fifth respondent/fifth respondent. 10. The question that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. Ext A3 charge-sheet filed by the Manarcadu Police, after the investigation in crime No.187/2008, substantiates that the accident occurred due to the negligence on the part of the second respondent, who drove the auto rickshaw in a rash and negligent manner. Ext A5 wound certificate and Ext A6 discharge summary establishes that the petitioner was hospitalized in the Medical Trust Hospital for a period of 18 days. 6 MACA.No.184 OF 2013 Ext A7 series medical bills also prove the amount that was spent by the petitioner for his medical treatment. 12. The principal dispute in the appeal is with regard to the notional income of the petitioner fixed by the Tribunal and also the quantum of compensation awarded by the Tribunal under the head 'loss due to permanent disability'. 13. The petitioner had alleged that he was employed abroad and was drawing a monthly salary of Rs.35,000/-. The petitioner had not produced any material to substantiate the said assertion. In the said circumstances, the Tribunal fixed the notional monthly income of the petitioner at Rs.4,000/-. 14. The petitioner has only passed his matriculation examination. 15. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** 7 MACA.No.184 OF 2013 has fixed the notional monthly income of a coolie worker for an accident in the year 2004 @ Rs.4,500/- and that the vegetable vendor for an accident that occurred in the year 2008 @ Rs.6,500/-. Similarly, the Hon'ble Supreme Court in **Pushkar Mehra vs. Brij Mohan Kushwala and others (2015) 12 SCC 688]** has fixed the notional monthly income of a skilled labourer/technical supervisor for an accident that occurred in the year 2010 @ Rs.7,000/-. ## **Notional Income** 16. Following the above parameters laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the opinion that the petitioner's notional income can safely be fixed at Rs.7,500/- per month. ## **Permanent Disability** 17. Coming to the alleged permanent disability of the petitioner, it is undisputed fact that the petitioner did not subject to himself for any medical examination, to assess his alleged disability. Nevertheless, the Tribunal after seeing the petitioner, assessed his 8 MACA.No.184 OF 2013 functional disability at 2%. In view of the fact that there is no other further material that was produced before the Tribunal, I find that the assessment made by the Tribunal, which is the fact finding Forum, is justifiable and reasonable and not to be interfered by this Court at this distance of time. ## **Loss of earnings and loss due to disability** 18. In view of the refixation of the notional income of the petitioner, the compensation under the head 'loss of earnings' has to be enhanced to Rs.22,500/- instead of Rs.12,000/- fixed by the Tribunal. Similarly, the compensation under the head 'permanent disability' has to be enhanced to Rs.25,400/- instead of Rs.13,440/fixed by the Tribunal. ## **Pain and sufferings** 19. Coming to the compensation under the head 'pain and sufferings', even though the petitioner had claimed an amount of Rs.50,000/-, the Tribunal had only awarded an amount of Rs.19,000/-. It is on record that the petitioner had dislocated his hip and sustained two 9 MACA.No.184 OF 2013 fractures. He was admitted in the hospital as inpatient for a period of 18 days. In such circumstances, I am of the considered opinion that the petitioner is entitled for compensation under the head ' pain and sufferings' at Rs.40,000/- instead of Rs.19,000/- awarded by the Tribunal. ## **Other heads of claim** 20. With respect to other heads of claim, namely, transportation, extra nourishment, damage to clothing, bystander expenses, medical expenses and loss of amenities, I find that the Tribunal has awarded reasonable and just compensation. 21. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of the compensation as modified and re-calculated above, and given in the table below for easy reference. 10 MACA.No.184 OF 2013 |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation|2,650/-|2,650/-| |2|Extra nourishment|1,000/-|1,000/-| |3|Damage to clothing|500/-|500/-| |4|Bystander expenses|3,600/-|3,600/-| |5|Medical expenses|92,245/-|92,245/-| |6|Loss of earning|12,000/-|22,500/-| |7|Pain and sufferings|19,000/-|40,000/-| |8|Loss of amenities|15,000/-|15,000/-| |9|Permanent disability|13,440/-|25,400/-| ||Total|1,59,435/-|2,02,895/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.43,460/- (Rupees Forty Three Thousand Four Hundred and Sixty only) with interest at the rate of 7.5% per annum from the date of petition till the date of realisation on the enhanced compensation excluding the period of 225 days as ordered by this Court in CM Appln 212/2013 and proportionate costs. The third respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the 11 MACA.No.184 OF 2013 judgment. The disbursement of the enhanced compensation to the appellant/petitioner shall be done, in accordance with law. Needless to mention that after the third respondent deposits the enhanced compensation, it would be at liberty to recover the said amount as found in the impugned award from the first respondent. **Sd/-** **C.S.DIAS** SKS/27.3.2021 **JUDGE**