Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE6H DAY OF JUNE, 2014/16TH JYAISHTA, 1936 MACA.No. 420 of 2014 ------------------------ AGAINST THE AWARD IN OP(MV) 302/2006 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. APPELLANT/PETITIONER : REJI AGED42YEARS S/O.EKORAN, RESIDING AT KADAVIL HOUSE, KURICHIKKARA PONGANAMKADU, THRISSUR DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.A.R.NIMOD RESPONDENTS/RESPONDENTS :
1. RAJU S/O. DEVASY, RESIDING AT ALAKKUPARAMBIL HOUSE ERAVIMANGALAM, NADATHARA, THRISSUR-680 751.
2. THE NATIONAL INSURANCE COMPANY LTD. KOLLANNUR DEVASSY SMARAKA BUILDING, ROUND NORTH THRISSUR-680 001. R2 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON0606-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BABU MATHEW P. JOSEPH, J.
= = = == = = = = = = = = = = = = = = M.A.C.A No. 420 of 2014 = = = = = = = = = = = = = = = = = = = Dated this the 6th day of June, 2014 JUDGMENT
The appellant has sustained injuries in a motor accident involving an autorickshaw bearing Reg. No.KL8/A7530driven and owned by the first respondent and insured with the second respondent. He has filed a petition claiming `35,000/- as compensation for the injuries sustained in the motor accident, before the Motor Accidents Claims Tribunal, Thrissur. The learned Tribunal, after considering the matter, found that the accident had occurred due to the rash and negligent driving of the autorickshaw by the first respondent and awarded a total compensation of `20,000/- (`19,200/- is rounded off to `20,000/-) under various heads MACA4202014 2 as follows: Loss of earnings ` 6,000/- Transport to hospital ` 500 Extra nourishment ` 500/- Damages to clothing ` 500/- Medical expenses ` 1,700/- Pain and suffering ` 5,000/- Disability and discomfort ` 5,000/- Dissatisfied with the quantum of compensation awarded, the appellant has preferred this appeal.
2. Heard the learned counsel appearing for the appellant and the learned Standing Counsel appearing for the second respondent Insurance Company.
3. Learned counsel for the appellant submits that the amounts awarded by the Tribunal under various heads are insufficient. The appellant has sustained a serious fracture in the accident. He was a headldoad worker at the time of accident. The accident has caused disability to him and it MACA4202014 3 affects his earning power. He has undergone much pain and suffering as a result of the injuries suffered in the accident. Therefore, the appellant is entitled to more amounts under various heads as compensation.
4. Learned Standing Counsel for the second respondent submits that the appellant was amply compensated by the Tribunal under various heads. The claims now raised by the learned counsel for the appellant are without supported by any evidence. The appellant has not sustained any disability affecting his earning power. Therefore, he prays for dismissing this appeal.
5. The appellant has sustained comminuted fracture of the base of the 5th metatarsal of his right foot and a lacerated wound, 4x2 cm, on that foot. He was treated at the Medical College Hospital, Thrissur, after the accident. He was treated by applying Plaster of Paris Cast for the comminuted fracture. The appellant was a headload worker MACA4202014 4 at the time of accident. But, in the absence of any income certificate, the learned Tribunal fixed his monthly income notionally at ` 3,000/-. On considering the matter, the notional income thus fixed by the Tribunal does not require any interference. The amounts awarded under the heads of loss of earnings, transport to hospital, extra nourishment and damages to clothing also do not require any interference. The appellant has produced bills worth `1,670/- showing the medical expenses. On considering the nature of injuries suffered by the appellant and the medical bills produced, ` 2,500/- is awarded in the place of ` 1,700/- awarded by the Tribunal under the head of medical expenses. The Tribunal awarded ` 5,000/- as compensation for pain and suffering. This is palpably low. The appellant has sustained comminuted fracture of the base of the 5th metatarsal of his right foot. The nature of fracture so suffered itself indicates that the appellant would have MACA4202014 5 undergone excruciating pain after the accident. Therefore, ` 5,000/- awarded under this head is enhanced to ` 10,000/-. The Tribunal has awarded `5,000/- towards compensation for disability and discomfort. On considering the nature of the fracture suffered by the appellant, it is probable that he would have sustained some disability affecting his efficiency and amenities of life justifying more compensation. Therefore, `5,000/- more is allowed under this head. Thus, the appellant is entitled to `10,800/- (Rupees ten thousand eight hundred only) as compensation over and above the compensation already awarded by the learned Tribunal. The said amount of `10,800/- shall carry interest at the rate of 9% per annum from the date of filing of the petition till realisation. The second respondent Insurance Company is directed to deposit the amount within two months from today. MACA4202014 6 6. Learned counsel for the second respondent submitted that the Tribunal found in the award that the first respondent was not holding a valid driving licence for driving the autorickshaw. Therefore, the second respondent was directed to pay the compensation to the appellant and permitted the second respondent to recover that amount from the first respondent. Therefore, such a permission may be granted to the second respondent for recovering the amount awarded by this Court in this appeal from the first respondent. This cannot be permitted. The Tribunal has not entered a finding that the absence of driving licence for the driver has contributed to the cause of accident. Moreover, the second respondent has not even made an attempt to prove that the absence of a driving licence for the driver, in fact, has contributed to the cause of accident. Therefore, in this case, in the light of the ruling of the Honourable Supreme Court in National Insurance Company Ltd. v. MACA4202014 7 Swaran Singh [2004 (1) KLT781(SC)], the second respondent Insurance Company cannot be permitted to recover the amount allowed in this appeal and paid by the second respondent from the first respondent. They are liable to indemnify the first respondent. This appeal is allowed in part as above. Sd/- Sd/-- BABU MATHEW P. JOSEPH JUDGE ks & kns/- T//TRUE COPY// P.A. TO JUDGE True copy P.S.To Judge MACA4202014 8 BABU MATHEW P. JOSEPH JUDGE ks.