Prasad v. Suneethi Sree Renjan and NeeraJan and United India Insurance Co. Ltd. (MACA No. 2409 of 2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 8[TH] DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943** ## **MACA NO. 2409 OF 2013** **AGAINST AWARD IN OP(MV)NO.996/2007 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, ATTINGAL** ## **APPELLANT/APPLICANT :** **PRASAD, AGED 38 YEARS, S/O.VASUDEVAN ASSARI, ALAMATTU VEEDU, AROOR, PONGANADU P.O., KILIMANOOR, THIRUVANANTHAPURAM DISTRICT.** **BY ADV SRI.M.DINESH** ## **RESPONDENTS/RESPONDENTS :** - **1 SUNEETHI SREE RENJAN, S.S.R.HOUSE, PONGANADU P.O., KILIMANOOR, THIRUVANANTHAPURAM - 695 103.** - **2 NEERAJAN, S/O.NEELAMBARAN, AMBIKA BHAVAN, THEKKUMPURAM, ADAYAMON P.O., PAZHAYAKUNNUMMEL, THIRUVANANTHAPURAM DISTRICT-695 103.** - **3 UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, ASH-HAR COMPLEX, PALACE ROAD, ATTINGAL-695 106.** **BY ADV.SRI.P.K.MANOJKUMAR, STANDING COUNSEL** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **==> picture [318 x 56] intentionally omitted <==** **“C.R”** ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.2409 of 2013_ ================================ _Dated this the 8[th] day of November, 2021_ ## _**J U D G M E N T**_ The petitioner, who sustained injuries in an accident alleged to have been occurred on 19.01.2007 while riding as pillion in a motorcycle bearing Registration No.KL-16/A-6527 ridden by one Sinu, approached the Tribunal and claimed compensation to the tune of Rs.1,50,000/-. According to the petitioner, the accident was the contribution of the 2nd respondent, who had driven a private stage carriage bearing Registration No. KL-16/C-2178 at the time of the accident in a rash and negligent manner. 2. The insurance company filed written statement and disputed the accident as well as the quantum of compensation. Specific plea raised to the effect that the accident was the outcome of collision between 2 vehicles and therefore the petition is bad for non-joinder of parties. M.A.C.A.No.2409/2013 3 3. The Tribunal without adducing any oral evidence marked Exts.A1 to A9 series on the side of the petitioner. No evidence adduced on the side of the contesting respondents. Finally the Tribunal found that the rider of the motorcycle (petitioner claimant) and the 2nd respondent were negligent. After holding so, the Tribunal found 50% negligence on the part of the petitioner and 50% on the part of the 2nd respondent. Thereafter, the Tribunal granted Rs.18,000/- as compensation without specifying the heads under which the same was granted. Finally Rs.9,000/- was awarded. Since the award impugned is less than Rs.10,000/-, maintainability of this appeal is the first question to be decided. Similarly, the Tribunal assessed Rs.18,000/- as the total compensation and granted Rs.9,000/- without discussing the amount entitled under each heads. 4. Now 2 specific questions require to be answered: (i) Whether an appeal would lie when the award amount is only Rs.9,000/-, in view of the specific bar under Section 173(2) of the Motor Vehicles Act, 1988? (ii) Whether the Tribunal is justified in fixing Rs.18,000/- M.A.C.A.No.2409/2013 4 as compensation without showing the heads under which the said amount was granted? **==> picture [36 x 56] intentionally omitted <==** 5. Point No.(i) In order to answer this question, reference to Section 173(2) of the Motor Vehicles Act is necessary. The same is extracted hereunder: “ _173. Appeals:-(1) xxxx xxxx xxxx_ (2) _No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.”_ It is noted that as per amendment dated 1.09.2019 `ten thousand' was deleted and `one lakh' substituted. However, the case on hand is governed by the unamended provision. 6. In an earlier decision reported in [2006 KHC 1567], _**Ajesh Alex v. John & Ors.**_ , a learned Single Judge of this Court held that appeal is not maintainable if the amount in dispute is less than Rs.10,000/-. However, in a subsequent Division Bench ruling reported in [2019 (1) KLT 769 : 2019 KHC 2809], _**Varghese Devassia v. Jossy Varghese**_ , a Division Bench of this Court considered the question as to whether restriction contained M.A.C.A.No.2409/2013 5 ## in sub section 2 of Section 173 of the Act can have any application in the case of claimants, it was held as under: _“It is thus well settled that the Motor Accidents Claims Tribunals constituted under Act as also this court exercising appellate jurisdiction have a duty to award just and fair compensation having regard to the well settled principles regarding assessment of damages, if necessary by ignoring the claim made in the application for compensation, if that be so, by necessary implication it will have to be held that the operation of sub-s.(2) of S.173 of the Act can have no application to appeals filed by claimants seeking enhancement of the compensation awarded by the Tribunal. In other words, the restriction contained in sub-s.(2) of S.173 of the Act can have application only where the award passed by the Motor Accidents Claims Tribunals is under challenge by the person held liable by the Tribunal to pay the amount awarded as compensation.”_ No doubt, following the ratio in _**Varghese Devassia**_ 's case ( _supra_ ) it has to be held that the appeal at the instance of the petitioner challenging award passed for Rs.9,000/- is maintainable before this Court. Point No.(i) answered accordingly. 7. Point No.(ii) Before answering issue No.(ii), question of negligence required to be addressed. It is submitted by the learned counsel for the appellant that ignoring the police charge marked as Ext.A4, the Tribunal fixed 50% contributory negligence on the part of the petitioner, who was pillion rider in the above vehicle. In this context it is interesting to note that the petitioner met with M.A.C.A.No.2409/2013 6 an accident after colliding with a bus. However, the owner, rider or insurer of the motorbike were not impleaded in this case. Though they were not parties to the proceedings, the Tribunal found 50% contributory negligence on the part of the petitioner, who was the pillion rider. In fact, the said finding is unsustainable. If at all such a decision to be taken, then also the principles of natural justice as well as the fair principle of trial would mandate that the other tortfeasors also must be in the party array with opportunity of hearing. 8. Coming to the facts of this case, based on the available materials, as per Ext.A1 FIR registered on 04.02.2007, crime alleging commission of offences under Sections 279, 337 and 338 of IPC was registered against the 2nd respondent, the driver of the bus, bearing Reg.No.KL16/C-2178. Ext.A4 charge also later laid before the Magistrate Court alleging commission of the above offences, in tune with the FIR. Other records also would justify negligence on the part of the 2nd respondent. It is settled in [2011 (3) KLT 648], _**New India Assurance Co. Ltd. v. Pazhaniammal**_ and [2015 (2) KLT 266, _**Fazal Mahmood v. Rasheed**_ and [2021 (4) M.A.C.A.No.2409/2013 7 KHC 380] _**Balan.R v. Abhiraj.R & Ors.**_ to the effect that police charge can be given emphasis to find negligence unless and until contra evidence to disbelieve the same is adduced. For the above reasons, finding of the Tribunal fastening 50% contributory negligence on the part of the petitioner, who was the pillion in the motorcycle, is illegal and the same is liable to be set aside. Thus the said finding is set aside and it is held that the accident was the contribution of negligence on the part of the 2nd respondent alone. 9. On the second question, grant of just compensation is the principle settled by law. But that does not mean that a Tribunal could grant a consolidated sum as compensation without considering the injuries, period of treatment, medical expenses incurred, loss of earning occasioned, disability sustained, etc. and without narrating the compensation arrived at on each heads in tune with the parameters for summary trial. So, it has to be held that granting a fixed sum to the fancy of the Tribunal as compensation is incorrect. Here, the Tribunal assessed Rs.18,000/- a consolidated sum as the total amount of compensation and after reducing 50% towards his contribution, M.A.C.A.No.2409/2013 8 Rs.9,000/- was awarded. It appears that the procedure adopted by the Tribunal is patently irregular. Therefore, the award amount requires recalculation under each head. 10. It is submitted by the learned counsel for the appellant that the appellant was doing the work of a Coolie and was earning Rs.7,500/- per month. However, no documents produced to substantiate the said contention, even the petitioner not mounted the witness box to give oral evidence in this regard. In [2011 (13) SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Aliance Insurance Company Ltd.**_ , the Honourable Supreme Court fixed the monthly income of a coolie in 2004 as Rs.4,500/and following the same ratio, Rs.6,000/- can fairly be fixed as the monthly income in this case dealing with an accident of the year 2007. 11. According to the learned counsel for the petitioner, the petitioner sustained serious injuries including fracture. Therefore, the petitioner is entitled to get loss of earnings for a period of 6 months. However, he conceded that the loss of earnings for a period of 3 months alone was claimed. M.A.C.A.No.2409/2013 9 12. Whereas the learned counsel for the insurance company would submit that no serious injuries sustained and therefore loss of earnings for a period of 6 months cannot be granted. 13. To allay the dispute, I have perused the discharge summary issued from Sree Gokulam Medical College and Research Foundation. The following injuries were diagonised: **==> picture [36 x 129] intentionally omitted <==** (i) minimally displaced fracture medial epicondyle (ii) Multiple abrasion over thigh and knee swelling, (iii) tense effusion and (iv) movements of knee painful and restricted. 14. Hospitalisation was for a period of 3 days from 19.01.2007 to 21.01.2007. The only serious injury is minimal displaced fracture medial epicondylar. At the time of discharge, he was advised to keep limb elevated and non weight bearing. But the period of such restriction not revealed in the discharge summary. Ext.A6 is the review underwent by the petitioner. There were reviews on 27.01.2007, 21.02.2007 and 21.03.2007. Having considered the reviews upto 21.03.2007, I am inclined to M.A.C.A.No.2409/2013 10 grant **loss of earnings** @Rs.6,000/- for a period of 3 months, which would come to **Rs.18,000/** -. 15. For **inpatient treatment** @ Rs.200/- per day for 6 days is granted (3 days for IP and 3 reviews), which would come to **Rs.1,200/-** . Under the head ` **pain and suffering** ', **Rs.15,000/-** can be granted considering the nature of the fracture. Under the head ` **transport to hospital** ' **Rs.1,000/** - can be granted. **Medical** bills for a sum of **Rs.4,079/-** produced as Ext.A9 series and therefore the same also is granted under the head ` **medical** '. ` **Loss of amenities expenses** ' also can be granted to the tune of **Rs.10,000** /-. **Rs.1,000** /- also can be granted towards **Extra nourishment** . Thus the compensation can be refixed as Rs.48,279/- rounded to Rs.48,300/- with interest @ 7% per annum from the date of petition till realisation or deposit, out of which Rs.9,000/- was granted by the Tribunal. In the result, the appeal is allowed in part. It is held that the appellants are entitled to get Rs.39,300/(Rupees Thirty nine thousand three hundred only) as enhanced compensation and the award impugned is modified as above with 7% interest from the M.A.C.A.No.2409/2013 11 date of petition till the date of deposit or realisation, excluding the period of 37 days in filing this appeal as ordered in the order dated 28.09.2021 in C.M.Appl.No.1 of 2013. The insurance company is directed to deposit the same in the name of the appellant within two months from today and the appellant is at liberty to release the same, on deposit. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_