Punnyaseelan @ Pushpalal v. The Superintendent of Police, Alappuzha; Kerala State Insurance Alappuzha Branch

1 MACA No.2203 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943** ## **MACA NO. 2203 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 305/2006 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA APPELLANT/S:** PUNNYASEELAN @ PUSHPALAL VIMAL BHAVAN, ST.JOSEPH'S STREET, VAZHICHERRY WARD, ALAPPUZHA. BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ## **RESPONDENT/S:** 1 THE SUPERINTENDENT OF POLICE ALAPPUZHA-688001. 2 T.R.BIJU S/O.THOMAS, VARIKONAM PUTHEN VEEDU, NEAR MAHAVISHNU TEMPLE, KATTAKKADA, THIRUVANANTHAPURAM-695572. 3 KERALA STATE INSURANCE ALAPPUZHA-688 001 BRANCH. BY ADV.K.G.SAROJINI, GOVERNMENT PLEADER R1 & R3 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2203 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.2203 of 2011 ====================== Dated this the 15[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.305/2006 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 19.2.2005. It was his case that, on the above said day, while he was riding the motor cycle bearing registration No.KL-J 7902, when he reached the Vazhicherry bridge, a jeep bearing registration No.KL-4/E6236 driven by the second respondent, hit the motor cycle. The appellant and the pillion on the motor cycle 3 MACA No.2203 of 2011 sustained serious injuries. The appellant had sustained a fracture on his right femur. He was treated as an inpatient for a period from 19.2.2005 to 27.3.2005 and from 10.7.2006 to 15.7.2006. The appellant was working as a Salesman in a Jewellery shop at Alappuzha and was earning a monthly income of Rs.4,500/-. The jeep was owned by the first respondent and insured with the third respondent. The appellant claimed a compensation of Rs.5,00,000/- from the respondents. 3. The pillion rider on the motor cycle also filed OP(MV) 191/2006 against the respondents claiming compensation on account of the injuries sustained to him in the accident. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent had filed written statements refuting the allegations in the claim petitions. The third respondent contended that the accident 4 MACA No.2203 of 2011 occurred due to the negligence of the appellant. The third respondent also disputed the age, income and occupation of the appellant and the other petitioner. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions marked Exts A1 to A18 in evidence. The respondents did not let in any evidence. 8. The Tribunal, by its common award, allowed the captioned claim petition, by permitting the appellant to realise from the third respondent an amount of Rs.47,918/- with interest and costs. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 10. Heard; Sri.M.V Thamban, the learned counsel appearing for the appellant/petitioner and the learned Government Pleader appearing for the respondents 1 and 3. 5 MACA No.2203 of 2011 11. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Ext A1 final report and FI statement prove that the accident happened due to the negligence of the second respondent. Admittedly, the first respondent was the owner and third respondent was the insurer of the jeep. The third respondent has not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 13. The appellant had claimed that he was a Salesman in a jewellery shop and was earning a monthly income of Rs.4,500/-. The Tribunal, without fixing the notional income of the appellant has awarded a consolidated amount of Rs.10,000/- towards loss of 6 MACA No.2203 of 2011 earnings. The course adopted by the Tribunal, according to me, is wrong and unsustainable in law. The Tribunal ought to have fixed the notional monthly income of the appellant before quantifying the loss of earnings. 14. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 15. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2005, I fix the notional monthly income of the appellant at Rs.4,500/- as claimed in the claim petition. ## **Loss of earnings** 16. It is on record, as evidenced by Exts A6 and A7 discharge cards, that the appellant was admitted and treated as an inpatient in two spells for the period from 19.2.2005 to 27.3.2005 and from 10.7.2006 to 15.7.2006. 7 MACA No.2203 of 2011 Therefore, it is proved that the appellant was indisposed for a period of six months. 17. On a consideration of the notional income of the appellant at Rs.4,500/- and holding him to be indisposed for a period of six months, I refix the compensation for loss of earnings at Rs.27,000/- instead of Rs.10,000/awarded by the Tribunal, i.e., an enhancement of **Rs.17,000/-.** ## **Loss due to disability** 18. The appellant had produced Ext A8 disability certificate issued by the Lecturer/ the Assistant Surgeon, Orthopedics of the Medical College Hospital, Alapuzha. Even though the accident occurred on 19.2.2005, the appellant got his disability assessed only on 21.2.2011. It is established as per Ext A4 wound certificate that the appellant had only sustained a fracture on his femur. The Doctor who issued Ext A8 had certified that the appellant has instability of his knee, decrease in the flexion and 8 MACA No.2203 of 2011 stiffness of his right knee. The Doctor has certified that the appellant has a permanent disability of 10%. 19. The Tribunal for the reason that the appellant had not examined the Doctor who issued Ext A8, has declined to award any compensation for loss due to disability. 20. On a re-appreciation of Ext A8 disability certificate and A4 wound certificate and also taking note of the fact that the appellant was aged only 28 years at the time of the accident and further that Ext A8 was issued six years after the accident, I am not inclined to accept Ext A8 and hold that the appellant has any functional disability. I confirm the finding and hold that the Tribunal has rightly declined to accept Ext A8, especially for the reason that the appellant declined to examine the Doctor who issued Ext A8. Therefore, I hold that the appellant does not have any functional disability. 9 MACA No.2203 of 2011 ## **Bystander expenses** 21. It is on record as per Exts A6 and A7, that the appellant was treated as an inpatient for a period of 41 days. However, the Tribunal has awarded only an amount of Rs.1,500/- towards bystander expenses, which according to me is on the lower side. Therefore, I award an amount of Rs.250/- per day for a period of 41 days towards bystander expenses, which amounts to Rs.10,250/-, i.e., an enhancement of **Rs.8750** /-. ## **Loss of amenities** 22. Even though the appellant had claimed compensation for loss of amenities, the Tribunal has not awarded any amount under the said head. 23. Taking into account the fact that the appellant had sustained a fracture on his right femur, he was treated as an inpatient for a period of 41 days in two spells and that he was indisposed for a period of six months, I hold that the appellant is entitled for 10 MACA No.2203 of 2011 compensation for loss of amenities at **Rs.15,000/-.** ## **Other heads of compensation** 24. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of **Rs.40,750/-** (Rupees Forty Thousand Seven Hundred and Fifty only) (Rs.17,000/- under the head 'loss of earnings', Rs.8,750/- under the head 'bystander expenses' and Rs.15,000/- under the head 'loss of amenities') with interest on the said amount at the rate of 7.5% per annum from the date of claim petition till the date of realisation and a cost of Rs.5,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately 11 MACA No.2203 of 2011 on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant, in accordance with law. SD/- sks/15.11.2021 **C.S.DIAS, JUDGE**