Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 2ND DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 AGAINST THE ORDER/JUDGMENT DATED 03.10.2018 IN OPMV NO.166 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA APPELLANT/PETITIONER: GOPI AGED 51 YEARS S/O. SANKARAN, THEKKUMURI MARASSERY HOUSE, THEKKE THORAVU DESOM, THORAVU VILLAGE, PUDUKKAD P. O., THRISSUR DISTRICT - 680 301 BY ADV V.BINOY RAM RESPONDENTS/RESPONDENTS:
1 JAMES JOSEPH S/O. JOSEPH, NALAMPURACKAL HOUSE, THURAVOOR, CHERTHALA, ALAPUZHA DISTRICT, PIN - 688 532 2 AFSAL HUSSAIN S/O. ABDUL RAHIMAN @ ABDUL RAHIM, AMALAPPA HOUSE, PUTHUPPALLY STREET, NOORANI P. O., YAKKARA VILLAGE, PALAKKAD DISTRICT, PIN - 678 004 3 THE MANAGER NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, GROUND FLOOR, SOUMYA COMPLEX, BUILDING NO.20/363 (A), VELLAIKINAR JUNCTION, CIVIL LINE ROAD, ALAPPUZHA, PIN - 688 001 BY ADVS. SRI.V.KRISHNA MENON SRI.LAL K.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.S.SUDHA, J.
--------------------------------------------------- M.A.C.A. No.397 of 2019 ---------------------------------------------------- Dated this the 2nd day of April, 2024
JUDGMENT
This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P.(MV) No.166/2016 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 03/10/2018. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition.
2. According to the petitioner, on 08/01/2016 at 5 p.m.,
while he was walking through the zebra line at Pudukkad junction, a car bearing registration number KL-04/P-7488 driven by the second respondent in a rash and negligent manner hit the petitioner as a result of which he was thrown to the road due to which he sustained serious injuries. The first respondent owner, the second respondent driver and the third respondent insurer of the offending vehicle are jointly and severally liable to compensate the petitioner. Hence the petitioner claimed an amount of ₹8 lakhs as compensation under various heads.
3. Respondents 1 and 2 remained ex parte. The third
respondent filed written statement admitting the insurance policy of the vehicle but denied the age, occupation and monthly income of the petitioner. The negligence attributed to the second respondent and the amounts claimed by the petitioner under various heads were also denied.
4. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A13 were marked on the side of the petitioner. Ext.X1, the report of the Medical Board was also marked.
5. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part
of the second respondent resulting in the incident and hence awarded an amount of ₹5,12,700/- with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved, the petitioner has come up in appeal.
6. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.
7. Heard both sides.
8. The learned counsel for the appellant challenges the Award of the Tribunal under the following heads- Notional income It is submitted that the petitioner, a Peon at Pudukkad Service
Co-operative Bank, was getting ₹30,000/- per month as his income. However, the Tribunal ignoring the same has wrongly fixed income at ₹7,500/-. Ext.A12 is the certificate produced by the petitioner to substantiate the claim regarding his monthly income. Despite the fact that the Secretary, Pudukkad Service Co-operative Bank who is
seen to have issued the certificate had not been examined to prove the same, the Tribunal accepted the same, apparently because it was not objected to by the respondents. Going by Ext.A12, the petitioner, a daily wage worker, was getting wages at the rate of ₹300/- per day. If that be so, the daily wages of the petitioner for 26 working days in a month would come to ₹7,800/- and not ₹7,500/- granted by the Tribunal. The Tribunal has granted 10% of the monthly income towards loss of future prospects. In the absence of any challenge to the same, 10% of ₹7,800/- which is ₹780/- is added to the monthly income of ₹7,800/-. Thus, the monthly income of the petitioner would be ₹8,580/-. There is no dispute regarding the multiplier of 13 that has been adopted by the Tribunal. Hence, the petitioner would be entitled to an amount of ₹2,67,696/- [8,580x12x13x20/100] as compensation towards disability.
9. Loss of earnings- It is further submitted that, on account of the injuries sustained by the petitioner, he was bed ridden for at
least an year and therefore, appropriate compensation towards the said head ought to have been granted. But the Tribunal has only awarded an amount of ₹75,000/- against ₹1,80,000/- claimed by the petitioner. 9.1. As per Ext.A3 wound certificate, the injury sustained by the petitioner are- “Fracture left Neck of Femur. Pain left hip region.”
The Tribunal has awarded an amount of ₹75,000/- taking into account the fact that he would have been bed ridden for at least 10 months. The period of 10 months taken by the Tribunal is appropriate in the light of the injuries sustained by the petitioner. As the notional income has been fixed at ₹8,580/-, the compensation awarded under this head needs to be modified to the said extent, that is, ₹8,580x10, which is equal to ₹85,800/-.
10. Transportation expenses- It is further pointed out, the petitioner had been hospitalized for a period of 31 days and
thereafter he required several visits to the hospital and hence an amount of ₹20,000/- had been claimed by the petitioner. However, only ₹5,000/- has been granted by the Tribunal, which according to the learned counsel for the petitioner, is grossly inadequate. There is no material on record to substantiate the claim of the petitioner on this head and therefore, I find that an amount of ₹5,000/- granted by the Tribunal towards this head is reasonable.
11. Extra nourishment- It is further pointed out that
the petitioner had to be hospitalized for 31 days pursuant to the accident and therefore the extra nourishment of ₹1,000/- awarded is too meagre. In the light of the fact that the petitioner had been hospitalized for 31 days and in the light of the serious injuries sustained by him, I find that an amount of ₹5,000/- towards extra nourishment would be appropriate of which ₹1,000/- has been granted by the Tribunal.
12. Attendant expenses- The attendant expenses that has been granted by the Tribunal is also challenged. However, I find
that the amount of ₹9,300/- granted at the rate of ₹300/- per day for 31 days is quite an appropriate sum and therefore, the said finding does not call for any interference.
13. Pain and suffering- It is further pointed out that a
person who has undergone hospitalization for 31 days needs to be granted an amount of at least ₹2,00,000/- towards pain and suffering. The Tribunal has granted an amount of ₹70,000/- which in the light of the injuries sustained by the petitioner to which I have already adverted to seems just and reasonable.
14. Loss of amenities- An amount of ₹1 lakh was claimed.
The Tribunal granted an amount of ₹35,000/- which is also stated to be grossly inadequate. According to the petitioner, he was a Peon engaged on daily basis in a Co-operative Society. In the light of the nature of the job of the petitioner, the amount awarded seems quite appropriate.
15. Future medical expenses- It is further pointed out that though an amount of ₹50,000/- was sought towards future medical
expenses, the Tribunal wrongly did not grant any amount towards the same. However, it is seen that there is absolutely no evidence to show that the petitioner required any further treatment. In such circumstances, the Tribunal was justified in refusing to grant any amount towards the said head.
16. The impugned Award is partly modified thus - Sl. Head of Amount Amount Modified in appeal No. claim claimed awarded by Tribunal
1. Loss of ₹1,80,000/- ₹75,000/- ₹85,800/- earning (7500x10 [8580 x 10 months] months) (75,000+10,800)
2. Transportatio ₹20,000/- ₹5,000/- ₹5,000/- n expenses (No modification)
3. Extra ₹20,000/- ₹1,000/- ₹5,000/- nourishment (1,000+4,000)
4. Damage to ₹10,000/- ₹1,000/- ₹1,000/- clothings (No modification)
5. Attendant ₹40,000/- ₹9,300/- ₹9,300/- expenses (300x31 days) (No modification)
6. Medical ₹2,00,000/- ₹59,000/- ₹59,000/- expenses (No modification)
7. Pain and ₹2,00,000/- ₹70,000/- ₹70,000/- suffering (No modification)
8. Permanent ₹3,00,000/- ₹2,57,400/- ₹2,67,696/- disability (8250x12x13 [8580x12x13 x20%) x20%] (2,57,400+10,296) Sl. Head of Amount Amount Modified in appeal No. claim claimed awarded by Tribunal
9. Loss of ₹1,00,000/- ₹35,000/- ₹35,000/- amenities (No modification)
10. Anticipated ₹50,000/- Nil (No modification)
medical expense Total ₹11,20,000/- ₹5,12,700/- ₹5,37,796/- (Limited to (Rs.5,12,700/- 8,00,000/-) along with 8% interest p.a. from 15.02.2016 till realization) In the result, the appeal is allowed in part by enhancing the
compensation by a further amount of ₹25,096/- (total compensation ₹5,37,796/-, that is, ₹5,12,700/- granted by the Tribunal + ₹25,096/-granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the
Tribunal shall disburse the amount to the petitioner/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. Sd/- C.S. SUDHA JUDGE NP