Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 MACA NO. 739 OF 2009 OPMV 41/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA APPELLANT/PETITIONER: AJITH KUMAR K.S. SREERANGATHU, ARUNOOTTIMANGALAM MURI, VETTIYAR VILLAGE, MAVELIKARA. BY ADVS. SRI.S.MOHANAN SRI.R.REJI SRI.M.V.THAMBAN RESPONDENTS/RESPONDENTS: 1 GANESH, KILIELETHU HOUSE (DELETED) K.P.ROAD, KAYAMKULAM P.O., KAYAMKULAM. *THE FIRST RESPONDENT IS DELETED FROM THE ARRAY OF RESPONDENTS AT THE RISK OF THE APPELLANT, AS PER
ORDER DATED 14/6/2023 IN IA 1/23 IN MACA 739/09*
2 JOSEPH THOMAS S/O.THOMAS, KUNNEL PADEETTATHIL, CHENNITHALA-, THRUPPERUMTHURA VILLAGE, MAVELIKARA TALUK. 3 NEW INDIA ASSURANCE CO. LTD., KAYAMKULAM, VETTIYAR VILLAGE, MAVELIKARA. BY ADVS. K.B.GANGESH N.S.MOHAMMED USMAN SMITHA CHATHANARAMBATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :2 :
JUDGMENT
The appellant was the petitioner in O.P. (M.V.) No. 41/1998 on the files of the Motor Accidents Claims Tribunal, Mavelikara. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 20.06.1997.
2. According to the appellant, when he was travelling as a
pillion rider on a motorcycle bearing registration No.KL-4/C 5080 driven by the 2nd respondent, due to the rash and negligent riding of the 2nd respondent, the motorcycle lost control and hit the parapet
of a culvert on the side of the road. The appellant sustained serious injuries and was taken to NSS Hospital at Pandalam, from where he was referred to Pushpagiri Hospital, Thiruvalla, where he underwent treatment. According to the appellant, he was a tuition teacher with a monthly income of Rs.5,000/-. The claim petition was submitted in such circumstances seeking a compensation of Rs.3,21,000/-.
3. The 1st and 2nd respondents, the owner and the rider of the motorcycle, were set exparte. The 3 rd respondent, the insurer of :3 :
the motorcycle, filed a written statement contending that, even though they issued a valid policy to the motorcycle, the same was only an 'Act only' policy, which does not cover the risk of the pillion rider. Therefore, they sought for exoneration from the liability. It was also contended that the 2 nd respondent did not possess a valid driving licence to ride the motorcycle as well. They also disputed negligence and the quantum of compensation.
4. The evidence in this case consists of oral testimony of
PW1 and Exts.A1 to A16 from the side of the appellant. A copy of the insurance certificate was produced and marked as Ext.B1 from the side of the respondent. After the trial, the Tribunal came to the
conclusion that the accident occurred due to negligence on the part
of the 2nd respondent, who was riding the motorcycle. However, it was found that the vehicle was issued with an 'act only' policy and hence the coverage will not extend to the risk of the pillion rider. Accordingly, the 3rd respondent was exonerated from the liability. The 2nd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,27,051/- and the said amount was permitted to be recovered from the 2 nd respondent with interest at the rate of 7.5% per annum from the date of petition till
:4 : realisation with proportionate cost. This appeal is submitted in such circumstances seeking enhancement of compensation.
5. Heard Sri. R. Reji, the learned counsel appearing for the
appellant, Sri. K.B. Gangesh, the learned counsel appearing for the 2nd respondent and Sri. N.S. Mohammad Usman, the learned counsel appearing for the 3rd respondent.
6. The only question that arises for consideration is
whether the amount awarded by the tribunal is reasonable or not. The learned counsel for the appellant would point out that the tribunal awarded a very meagre amount under various heads and, therefore, requires reconsideration. It was pointed out that even though a monthly income of Rs.5,000/- was claimed, which he was receiving from his avocation as a tuition teacher, the tribunal took the monthly income as Rs.2000/- only. Moreover, he also contends that the percentage of disability taken by the tribunal was only 5% even though Ext.A9 disability certificate was produced showing the percentage of disability as 10%.
7. On perusing the records, I find force in the said contention. Regarding the monthly income, apart from the claim that he was drawing an amount of Rs.5,000/-, no evidence was :5 :
adduced. Of course, it is true that, while being examined as PW1, the appellant asserted that he was getting an amount of Rs.5,000/-. However, in the absence of any other evidence supporting the interested version of PW1, I am of the view that the amount mentioned by him as such cannot be accepted. However, the monthly income of Rs.2,000/- appears to be on the lower side. In such circumstances, considering the fact that the accident occurred in the year 1997, the monthly income is fixed as Rs.3,000/-.
8. As regards the percentage of disability, the tribunal took
note of the fact that the disability was certified as 10% merely because of the reason that he lost his sense of smell permanently. As rightly observed by the tribunal, the said disability may not affect his earning capacity and hence, the entire percentage of disability certified therein need not be taken. In such circumstances, 5% disability accepted by the tribunal appears to be reasonable. As the appellant was 23 years old at the time of the accident, the multiplier applicable is 18. Thus, while reassessing the compensation with the revised criteria, the amount of compensation would come to
Rs.32,400/- [3000x12x18x5%]. The amount already awarded by the tribunal is Rs.20,400/- and thus, the additional amount would :6 : come to Rs.12,000/-.
9. It is discernible from the records that the appellant
sustained three fractures and had undergone inpatient treatment for 36 days. The tribunal awarded compensation for loss of earnings for a period of only two months, which appears to be on the lower side. Considering the nature of the injuries and the period of inpatient treatment, I deem it appropriate to grant compensation for loss of earnings for a period of three months. This would result in an additional compensation of Rs.5,000/- (3000x3-4000).
10. The other head which requires consideration is the loss of amenities. No amount is seen awarded by the tribunal under this
head. It has come out as evidence that the appellant suffered permanent loss of sense of smell. This would certainly affect the quality of his life. In such circumstances, an amount of Rs.15,000/- is awarded under this head. Thus, the total additional compensation is determined as Rs.32,000/- [12000+5000+ 15000]. In the result, this appeal is allowed. The award dated 28.02.2007 passed by the Motor Accidents Claims Tribunal, Mavelikkara in O.P. (MV) No.41/1998 is hereby modified by granting an additional compensation of Rs.32,000/- (Rupees thirty- :7 :
two thousand only) and the said amount shall be recoverable from the 2nd respondent with interest at the rate as ordered by the tribunal and proportionate costs. As there was a delay of 427 days in filing the appeal, the 2 nd respondent shall be entitled to exclude the said period while computing the interest on the additional compensation. It is further ordered that the claimant shall furnish the details of the PAN card, Aadhar card and bank details to enable the 2nd respondent to make the deposit as ordered above within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal.
Sd/- ZIYAD RAHMAN A.A. JUDGE rpk/ncd