Pravidas v. Shijan and M.N. Suresh and The New India Assurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 ``` ## `MACA NO. 2091 OF 2017` ``` (AGAINST THE AWARD IN OP(MV)NO.1154/2010 DATED 16.2.2017 ON THE ``` ``` FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR) ``` ## `APPELLANT/PETITIONER:` ``` PRAVIDAS, AGED 28 YEARS, S/O. NARAYANAN, PADINJATTAYIL HOUSE, KANJIRASSERY, IRINILAMKODU P.O, THRISSUR DT. ``` ``` BY ADV SRI.SHEJI P.ABRAHAM ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SHIJAN, S/O.JOSEPH, ANANDAVILAYIL HOUSE, MANGATTU, THRISSUR DT. - 680 001. 2M.N. SURESH, S/O. NARAYANAN, MELUTHIL HOUSE, ATTATHRA VILLAGE DESOM, WADAKKANCHERY, THRISSUR – 680001. 3THE NEW INDIA ASSURANCE CO.LTD, BR OFFICE, WADAKKANCHERRY ROAD, KUNNAMKULAM – 680 523. ``` ``` BY ADVS. SRI.K.S.ARUNDAS SRI.SAIGI JACOB PALATTY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` |`MACA NO. 2091 OF 2017`| |---| |`-2-`| |`JUDGMENT`| |`T`<br>`he victim of a road accident, which`| |`happened in the year 2006, is the appellant in`| |`this Appeal.`| |`2.`<br>`According to the appellant, while he was`| |`riding a motor cycle on 01.09.2006, he was hit`| |`by another one ridden by the 1`<br>`st`<br>`respondent in a`| |`rash and negligent manner and thus sustained`| |`severe injuries. He says that he, therefore,`| |`preferred OP(MV) No.1154/2010 before the Motor`| |`Accidents Claims Tribunal, Thrissur (hereinafter`| |`referred to as ‘the Tribunal’ for short),`| |`seeking a compensation of Rs.2,32,000/- limited`| |`to Rs.1,50,000/-; but that he has been awarded`| |`only Rs.59,100/-, and that too after finding`| |`that he had equally contributed for the`| |`accident.`| ``` MACA NO. 2091 OF 2017 ``` ``` -3- ``` ``` 3.Sri.Sheji P. Abrham – learned counsel for the appellant, though vehemently impelled ``` ``` his client’s case, conceded – to a pointed ``` ``` question from this Court – that the finding of contributory negligence by the Tribunal was based on the Police Charge Sheet, which found ``` ``` him equally responsible for the accident. He ``` ``` added that, notwithstanding this, the quantum granted by the Tribunal is exiguous, ``` ``` particularly under the heads ‘Loss of Earning’, ``` ``` ‘Pain and Suffering’ and ‘Loss of Amenities’. He thus prayed that the compensation awarded by the ``` ``` Tribunal be enhanced to a just figure. ``` ``` 4.Sri.Saigi Jacob Palatty – learned ``` ``` rd counsel appearing for the 3 respondent – ``` ``` Insurance Company, conceded that the policy is admitted and that there is no ‘pay and recovery’ order against respondents 1 and 2. He added that ``` ``` the findings of the Tribunal are without error ``` ``` MACA NO. 2091 OF 2017 ``` ``` -4- ``` ``` and that the compensation awarded is also fair, ``` ``` going by the injuries sustained by the appellant. ``` ``` 5.I notice from the files that, even ``` ``` though summons has been issued to the 1st ``` ``` respondent, it has not returned; but am of the ``` ``` view that this Court will not be impeded from ``` ``` disposing of this Appeal, since the directions I propose herein will not prejudice him; and ``` ``` particularly because the Insurance Company admits the policy and there is no order of recovery by the Tribunal against him. ``` ``` 6.When I consider and evaluate the afore ``` ``` submissions on the basis of the evidence on ``` ``` record – copies of which have been handed over across the Bar by the learned counsel for the with the express consent that it can be acted upon by this Court without dispute – it is ``` ``` rendered evident that the appellant has suffered ``` ``` MACA NO. 2091 OF 2017 ``` ``` -5- ``` ``` compound fracture of 5th metacarpal, along with tendon injury of 5th phalanx, on account of the accident. 7.That said, Ext.A5-Final Report of the Police and Ext.A2-copy of the Scene Mahazar, clearly establish that both the vehicles were equally negligent. To add to this, Exts.B1 and B2 demonstrate that a charge was framed against the appellant herein also, under Sections 279, 337 and 338 of the Indian Penal Code. Since no contra-evidence was led by the appellant to impeach the worth of these documents, certainly, the Tribunal cannot be found to be in error in having concluded that the appellant is also 50% contributorily negligent for the accident. ``` ``` 8.In such perspective, this Court has to now verify whether the compensation granted by the Tribunal is exiguous or otherwise. ``` ``` MACA NO. 2091 OF 2017 ``` ``` -6- ``` ``` 9.I notice that the Tribunal has adopted Rs.4,000/- per month as the notional income of the appellant; and am of the view that this is incorrect because, going byRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the notional income to be adopted even in the case of a person with an unascertainable sum in the year ``` ``` 2006 – when the accident occurred – is ``` ``` Rs.5,500/- per month. Though the appellant ``` ``` claims to be a carpenter, there is no evidence for this and hence, no enhancement of this can be granted, even as perRajani v. Oriental ``` ``` Insurance Company Limited [2022 (5) KLT OnLine 1012 (SC)]. ``` ``` 10.Resultantly, the compensation under the ``` ``` head “Loss of earning” will certainly have to be revised to Rs.6,000/-; but I do not think that the claim of the appellant for enhancement under ``` ``` MACA NO. 2091 OF 2017 ``` ``` -7- ``` ``` the heads “Pain and Suffering” and “Loss of Amenities” require to be acceded to, especially adverting to the injuries suffered by him, which is not very serious. ``` ``` In the afore circumstances, I allow this Appeal to the limited extent of enhancing the compensation under the head “Loss of Earning” as Rs.6,000/-; but confirming every other finding, including that of contributory negligence, against the appellant, as entered into by the Tribunal. ``` ``` As a result, the appellant will be entitled ``` ``` to recover the compensation, as enhanced by this ``` ``` Court, and in the proportion ordered by the Tribunal, from the 3[rd] respondent – Insurance ``` ``` Company, along with interest at the rate of 9% per annum as fixed by the Tribunal, from the date of claim until it is recovered. The ``` ``` MACA NO. 2091 OF 2017 ``` **==> picture [22 x 9] intentionally omitted <==** ``` appellant will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```