Vapputty @ Bapputty v. Ramadas and Salih and The United India Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944 ``` ``` MACA NO. 2298 OF 2013 ``` ``` AGAINST THE AWARD PASSED IN OP(MV) NO.977/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## `- APPELLANT/PETITIONER :` ``` VAPPUTTY @ BAPPUTTY AGED 53 YEARS S/O. MUHAMMED AMBALKUNNATH HOUSE, PANAMANNA P.O., OTTAPALAM TALUK. ``` ``` BY ADV SRI.K.RAVI (PARIYARATH) ``` ## `- RESPONDENTS/RESPONDENTS :` ``` 1RAMADAS AGED 34 YEARS S/O. KUTTAN NAIR, KUTTIKKATTIL HOUSE, PARAL, AALIPARAMBU, PIN – 678 001 (DRIVER OF BUS NO.KL-10/T 325). 2SALIH AGE NOT KNOWN TO THE APPELLANT, S/O. HAMSA, ERASSERYPALLIYALIL HOUSE, PARAL P.O., THOOTHA, PIN – 678 001. (OWNER OF THE BUS NO.KL-10/T 325). 3THE UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, PERINTHALMANNA. PIN – 673 001. (POLICY NO.101003/31/09/01/00002239) BY ADV SMT.P.A.REZIYA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.2298 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 25[th] day of October, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Ottapalam (for short ‘the Tribunal’) on 25.07.2013 in O.P.(MV) No.977 of 2009. 2. The appellant is the petitioner who has approached the Tribunal seeking for a sum of Rs.6,68,000/- as compensation for the injuries sustained by him in a motor accident occurred at 10.20 am on 03.08.2009 at Paral, Aaliprambu. The parties to the appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the original petition. 3. It was alleged that on the fateful day, the petitioner was riding his motor cycle bearing registration No.KL 9K 8303 through Cherupalachery-Perinthalmanna public road towards Perinthalmanna side and a bus bearing registration No.KL 10T 325 knocked him down at a place called Paral, due to the rash and negligent driving by its driver. He was rushed to Moulana Hosptial, ``` MACA No.2298 of 2013 ``` ``` 3 ``` Perinthalmanna and was shifted to various other hospitals for better management. The driver, owner and insurer of the offending bus were arrayed as respondents 1 to 3 in the original petition. Alleging that the accident was occurred due to the rash and negligent driving of the bus by the first respondent and claiming the aforesaid sum as compensation from respondents 1 to 3 jointly and severally, the original petition was filed. 4. The first and second respondents did not turn up to contest the original petition and therefore, were declared ex-parte. The third respondent had filed written statement admitting insurance coverage of the bus involved in the accident at the relevant time and contended that the accident was occurred due to the negligent and careless driving of the motor cycle by the petitioner himself. The age, income, occupation and the compensation claimed are disputed. 5. The petitioner himself mounted the box and deposed as PW1 and marked Exts.A1 to A18 and X1. Respondents did not adduce any evidence. On appreciation of the evidence the Tribunal ``` MACA No.2298 of 2013 ``` ``` 4 ``` found the first respondent who was driving the bus at the relevant time, rash and negligent and caused the accident. The Tribunal has also found entitlement for the petitioner to get compensation for the injuries sustained by him in the motor accident. The Tribunal also arrived at a sum of Rs.4,32,800/- as the compensation payable. The third respondent being established as the insurer of the offending vehicle was directed to deposit the compensation alongwith interest at the rate of 9% per annum from the date of the Original Petition till the date of realization. 6. The aggrieved petitioner has approached this Court in the appeal on hand challenging the quantum stands awarded by the Tribunal as compensation. According to Sri.Ravi K (Pariyarath), the learned counsel for the appellant, the Tribunal failed to fix a reasonable sum as monthly income of the petitioner to compute the compensation payable. According to him, evidence being totally lacking to establish the monthly income of the petitioner, it was fixed notionally as Rs.4,000/-. He canvassed for taking a sum proportionate to the one taken in _**Ramachandrappa v. Royal**_ ``` MACA No.2298 of 2013 ``` ``` 5 ``` ## _**Sundaram Alliance Insurance Co.Ltd**_ [(2011) 13 SCC 236], in the case on hand. According to him, if monthly income is modified in that manner, the petitioner will get just and reasonable compensation under the heads loss of earnings as well as permanent disability. 7. The learned counsel has also pointed out that under the head damages to clothing and pain and suffering also the Tribunal failed to award just and reasonable sums as compensation. According to him, the petitioner has sustained serious injuries but the Tribunal failed to award a satisfactory sum as compensation under the heads loss of amenities and enjoyments in life. Thus modification of compensation awarded by the Tribunal is sought. 8. The learned counsel for the third respondent has contended on the contrary that based on the oral evidence adduced by the petitioner as PW1, that his daily wage was fixed as Rs.300/and monthly income correspondingly as Rs.4,000/-. According to the learned counsel, in the above context the monthly income fixed is not required to be modified. According to him, reasonable sums ``` MACA No.2298 of 2013 ``` ``` 6 ``` having been awarded by the Tribunal under various other heads interference with the impugned award is totally uncalled for. 9. The monthly income was fixed by the Tribunal notionally as Rs.4,000/- and compensation was arrived at on it’s basis. In _**Ramachandrappa**_ supra, compensation having been arrived at on the basis of the monthly income of a coolie worker in the year 2004 fixed as Rs.4,500/-, a proportionate sum can be taken as monthly income in the case on hand. The accident being occurred in the year 2010, Rs.7,000/- appears just and reasonable to be fixed notionally as the monthly income and that is taken. 10. It is noticed from Ext.A6 wound certificate, Exts.A7 to A10 discharge summaries, Exts.A11 to A14 reference cards and Exts.A15 and A16 treatment certificates that the petitioner had sustained type IIIA compound bimalleolar fracture of left ankle and compound fracture of right tibia. He had undergone an operation for fixation of nails and was treated as inpatient for 110 days. Treatment as outpatient was continued till 2011. ``` MACA No.2298 of 2013 ``` ``` 7 ``` 11. In the above circumstances, six months’ period considered by the Tribunal for assessment of compensation for loss of earnings is too low. This Court is inclined to take 10 months’ period for the purpose of assessment of compensation for loss of earnings. When compensation is re-assessed for loss of earnings on the basis of the modified period and sum, the petitioner will get Rs.70,000/-. Rs.24,000/- having been awarded by the Tribunal, the petitioner will get Rs.46,000/- as additional compensation. Under the head damages to clothing, the Tribunal has awarded only Rs.500/- and this Court is inclined to make it to Rs.1,000/-, so that the petitioner will get an additonal sum of Rs.500/-. Under the head pain and suffering, the Tribunal has awarded only Rs.25,000/against the claim made for Rs.40,000/-. This Court is inclined to make it to Rs.40,000/-, so that the petitioner will get Rs.15,000/additionally. Under the head loss of amenities and enjoyments in life, the Tribunal failed to award any sum as compensation. In consideration of the injuries and the treatment availed by the petitioner, this Court finds it just and reasonable to award ``` MACA No.2298 of 2013 ``` ``` 8 ``` Rs.30,000/-. Compensation for disability when re-assessed on the basis of Rs.7,000/- fixed as monthly income and other factors taken by the Tribunal maintained, the total sum payable as compensation would be Rs.65,520/- (Rs.7,000 x 12 x 13 x 6%). Rs.37,440/-, being the sum stands awarded by the Tribunal, the petitioner will get Rs.28,080/- as compensation additionally. 12. Thus the total compensation payable additionally is Rs.1,19,580/- (Rupees One lakh nineteen thousand five hundred and eighty only). The said amount would carry interest at the rate of 7.5% per annum from the date of the original petition till the date of realization. The third respondent being the insurer shall deposit the said sum with interest as well as the sum already awarded by the Tribunal with interest (if not paid) within a period of two months from the date on which a copy of this judgment is received by it. MACA stands allowed accordingly. Sd/- **MARY JOSEPH SMA JUDGE**