Unnikrishnan v. Kunjiraman and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943** ## **MACA NO. 1819 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 94/2008 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **UNNIKRISHNAN,** **AGED 44 YEARS, S/O.CHAMI, POOLAKKAL VEEDU, CHERUMUNDASSERY, AMBALAPARA, OTTAPALAM TALUK.** **BY ADVS.T.D.RAJALAKSHMI R.SREEHARI** ## **RESPONDENTS/RESPONDENTS:** **1 KUNJIRAMAN, S/O.ACHUTHAN, CHULLIKKOTTIL VEEDU, CHERUMUNDASSERY, AMBALAPARA, OTTAPALAM TALUK, PIN-679 512. 2 UNNIKRISHNAN, S/O.BALAKRISHNAN, KULANSARA, CHERPLASSERY, OTTAPALAM TALUK, PIN-679 503. 3 THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, JRJ COMPLEX, OTTAPALAM-679 101. 4 KUNHIKANNAN, S/O.ACHUTHAN, CHULLIKKATTIL VEEDU, CHERUMUNDASSERY, AMBALAPARA, OTTAPALAM TALUK, CHERUMUNDASSERY POST-679 512.** **BY ADVS.P.MURALEEDHARAN** **K.RAJESH SUKUMARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1819 OF 2012** -2- ## **C.S. DIAS, J. ----------------------------------------------------MACA No.1819 of 2012 ----------------------------------------------------Dated this the 24[th] day of January, 2022** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.94 of 2008 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 24.03.2007. It was his case that, on the aforesaid date, while he was travelling in an autorickshaw bearing registration No.KL-9/L-9329, due to the negligence of the first respondent, the autorickshaw capsized. The appellant sustained serious injuries and was treated as an inpatient at the Al-shifa Hospital, Perithalmanna, for **MACA NO. 1819 OF 2012** -3- a period of 7 days. The appellant was a coolie worker by profession and was earning a monthly income of Rs.3,500/-. The autorickshaw was owned by the second respondent and insured with the third respondent. The appellant subsequently impleaded the supplemental fourth respondent who is none other than the first respondent and known by another name. Hence, the appellant claimed a compensation of Rs.2,50,000/- from the respondents. 3. The second respondent did not contest the proceeding. 4. The third respondent had filed a written statement, refuting the allegations in the claim petition. It was contended that there was no negligence on the part of the driver of the autorickshaw. However, the third respondent admitted that the autorickshaw had a valid insurance coverage. Subsequently, the third respondent filed a **MACA NO. 1819 OF 2012** -4- written statement contending that, as per the First Information Report, it was the additional fourth respondent who was the driver of the autorickshaw. There was also a contention that the second respondent had violated the insurance policy conditions and the third respondent prayed for exoneration. 5. The fourth respondent had filed a written statement stating that the driver of the autorickshaw had a valid driving licence. It was stated that as the autorickshaw had a valid insurance policy, the third respondent is to indemnify the liability. 6. The appellant had produced and marked Exts.A1 to A15 in evidence. The respondents produced and marked Exts.B1 to B4 in evidence. 7. The Tribunal,after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the ## **MACA NO. 1819 OF 2012** -5- third respondent an amount of Rs.63,250/- with interest and cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. R. Sreehari, the learned counsel appearing for the appellant/petitioner and Sri. P. Muraleedharan, the learned counsel appearing for the third respondent insurer. 10. The point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext.A4 charge sheet filed by the Sreekrishnapuram police in Crime No.83 of 2007 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third **MACA NO. 1819 OF 2012** -6- respondent was the insurer of the autorickshaw. The respondents have not let in any evidence to discredit Ext.A4 charge sheet. The third respondent has also not proved that the second/fourth respondents had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second/fourth respondents arising out of the accident. ## **Income** 12. The appellant had claimed that he was a coolie worker by profession and earning a monthly income at Rs.3,500/-. The Tribunal fixed the notional monthly income at Rs.3,000/-. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** , the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. **MACA NO. 1819 OF 2012** -7- 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2007, I re-fix the notional monthly income of the appellant at Rs.3,500/-, as claimed in the claim petition. ## **Loss of earnings** 15. It is proved and established that the appellant had sustained a fracture posterior wall of the left maxilliary sinus, fracture of the frontal Zygomatic bone, fracture of the lateral wall, superior wall and roof left orbit, fracture of the anterior wall of the left frontal sinus and fracture of the facial bones. The Tribunal held that the appellant was indisposed for a period of three months. Taking into account the serious fractures suffered by the appellant on his face, I hold that he was indisposed for a period of six months. 16. In view of the re-fixation of the notional **MACA NO. 1819 OF 2012** -8- monthly income of the appellant at Rs.3,500/-, I award him a further amount of Rs.12,000/- under the head 'loss of earnings'. ## **Pain and suffering and loss of amenities** 17. The appellant had claimed an amount of Rs.25,000/- under the head 'pain and suffering' and Rs.30,000/- under the head 'loss of amenities'. The Tribunal awarded him an amount of Rs.12,000/- and Rs.5,000/- , respectively, under the above two heads. 18. On a consideration of the fact that the appellant had sustained severe injuries on his face, that he was indisposed for a period of six months and that he was treated as an inpatient for a period of five months, I award him a further amount of Rs.13,000/under the head 'pain and suffering' and Rs.15,000/under the head 'loss of amenities'. 19. With respect to the other heads of compensation awarded by the Tribunal, I find the **MACA NO. 1819 OF 2012** -9- same to be reasonable and just. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.40,000/- (i.e, a further amount of Rs.12,000/under the head 'loss of earning', a further amount of Rs.13,000/- under the head 'pain and suffering' and a further amount of Rs.15,000/- under the head 'loss of amenities') with interest on the enhanced compensation and at the rate of 7% per annum from the date of petition till the date of date of deposit, after deducting the interest for a period of 38 days, i.e, the period of delay in filing the appeal and as ordered by this Court on 26.10.2021 in C.M. Application No.1 of 2012, and a cost of Rs.7,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost as ordered above within a period of sixty days from the date of receipt of a certified copy of this judgment. **MACA NO. 1819 OF 2012** **==> picture [21 x 9] intentionally omitted <==** Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S. DIAS JUDGE** bpr