Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943 AGAINST THE AWARD IN OP(MV)NO. 2800/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM DATED 17.05.2011 APPELLANT/PETITIONER: SHAHEER, AGED 45, S/O.KUNJUMOHAMMED, KOCHI-1,, ERNAKULAM DISTRICT. BY ADV. SRI.R.MURALEEKRISHNAN RESPONDENTS/RESPONDENTS: 1 DANIEL, S/O.VARGHESE, PUTHENPURAKKAL HOUSE, WEST OF VIMALA MATHA SCHOOL, KADAKIKKATTU DESOM, MANJALOOR VILLAGE,, MUVATTUPUZHA, PIN-682 019. 2 TOGI GEORGE NELLIKUNNEL, KADALIKKADU,, MOOVATTUPUZHA, PIN-682 019. 3 ORIENTAL INSURANCE CO.LTD. BRANCH THOPPUMPADY, ERNAKULAM-682 005. R3 BY ADV. SRI.N.S.NAJEEB THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-03-2021, THE COURT ON 07-04-2021 DELIVERED THE FOLLOWING: C.S.DIAS,J ------------------------ MACA No. 2149 of 2011 ------------------------ Dated this the 7th day of April, 2021
JUDGMENT
The appellant was the petitioner in OP (MV) No.2800 of 2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents in the claim petition.
2. The facts in brief, for the determination of the
appeal are: on 26.02.2004 while the appellant was travelling as pillion rider in a motorcycle bearing registration No.KL07 AP 2510, which is ridden by his friend through the Mattancherry-Boat Jetty road, when they reached near the eastern gate of the Pazhayannur Bhagavathi Temple, a stage carriage vehicle bearing registration No. KL7/B1215 (offending vehicle) suddenly severed the vehicle to
the right side and hit the motorcycle. The rider as well as the appellant were thrown on the road and sustained serious injuries. The appellant was taken to the Gowtham Hospital and thereafter referred to the Medical Trust Hospital, Ernakulam. The accident occurred solely due to the negligence on the part of the 1st respondent. The offending vehicles was owned by the 2nd respondent and insured with the 3rd respondent. The appellant was a Coolie by profession and was earning a monthly income of Rs.3,000/-. It was contended that the respondents were jointly and severally liable to compensate the appellant, which he quantified at Rs.2,30,000/- but limited to Rs.2,00,000/- .
3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte.
4. The 3rd respondent - insurance company filed a written statement, inter alia, contending that
the accident occurred solely due to the negligence on the part of the rider of the motorcycle. The amounts claimed under different heads in the claim petition were excessive. Hence, the claim petition be dismissed.
5. The Tribunal, after considering the pleadings
and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to recover an amount of Rs.67,511-/ with interest at the rate of 8% per annum from the date of claim petition till the date of realization with proportionate costs. The 3rd respondent was directed to pay the compensation amount.
6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal.
7. Heard Sri.R.Muraleekrishnan, the learned counsel for the appellant/petitioner and Sri.N.S.Najeeb, the learned counsel appearing for the 3rd respondent - insurance company.
8. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?
9. A Constitution Bench of the Hon'ble Supreme
Court in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability.
10. Ext.A9 charge-sheet filed by the City Traffic
Police in Crime No.709 of 2009 substantiates that the accident occurred solely due to the negligence on the part of the 1st respondent - driver of the offending vehicle. Ext.A5 Wound Certificate and Exts.A6 and A7 discharge summaries substantiate that the appellant had sustained the following injuries: “(i) Deep lacerated wound on the left eye brow
(ii) Small lacerated wound on the right eye brow
(iii) Contused abrasion on the forehead and right cheek
(iv) Pain and deformity of right shoulder
(v) Pain and tenderness of right upper both incisors
(vi) X - ray right shoulder - Acromio Clavicular dislocation “
11. The appellant was treated as an in-patient for a period of 10 days. Ext.A12 Medical Bills proves that the appellant had spent an amount of Rs.23,011/- for his medical expenses.
12. The main area of dispute in this appeal is with reference to Ext.X1 and Ext.X2 disability certificates.
13. The District Medical Board by Ext.X1 dated
31.03.2009 came to a conclusion that the appellant who has a mild conductive hearing loss (Rt ear) and Profound mixed hearing loss (Lt eye) but had a physical disability of 90%.
14. Doubting the correctness of the
assessment made in Ext.X1 certificate, the Tribunal referred the appellant to the State Standing Disability Assessment Board. The said Board by Ext.X2 dated 23.09.2010 came to a conclusion that the appellant has a permanent disability of 20%.
15. Based on Ext.X2, the Tribunal fixed the permanent disability at 20%. However, while fixing the quantum of compensation, the Tribunal omitted
to grant any compensation under the head 'loss due to disability, instead, the Tribunal awarded an amount of Rs.25,000/-, under the head 'loss of amenities'. Loss due to disability
16. Going by the well settled principles in
Pranay Sethi (supra) and a whole line of decisions, the Tribunal, especially after finding that the appellant had a disability of 20%, ought to have awarded compensation under the head 'loss due to disability'. In view of the findings in Ext.X2 that the appellant has a disability at 20%, I accept the same. The appellant being 40 years at the time of accident, the relevant multiplier is '15'. In the said circumstances, accepting the notional monthly income of the appellant at Rs.3,000/- and fixing his disability at Rs.20%, I award compensation for 'loss due to disability' at Rs.1,08,000/-
Loss of amenities
17. It is seen that the Tribunal has awarded an
amount of Rs.25,000/- under the head 'loss of amenities'. In view of awarding compensation under the head 'loss due to disability', I scale down the amount of compensation under the said head to Rs.10,000/- instead of Rs.25,000/- awarded by the Tribunal. Other heads of claim
18. With respect to the compensation awarded
by the Tribunal, under the other heads of claim namely, loss of earnings, transportation, by-stander expenses, extra nourishment, medical expenses and pain and sufferings, I find that the Tribunal has awarded reasonable and just compensation.
19. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-
cited decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. Sl. Heads of claim Amount awarded by Amounts No the Tribunal (in modified and rupees) recalculated by this Court 1 Loss of earning 6,000/- 6,000/- 2 Transportation 500/- 500/- 3 Bystander expenses 2,000/- 2,000/- 4 Extra nourishment 1,000/- 1,000/- 5 Medical expenses 23,011/- 23,011/- 6 Pain and sufferings 10,000/- 10,000/- 7 Loss of amenities 25,000/- 10,000/- 8 Loss due to disability nil 1,08,000 67,511/- 1,60,011
In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.93,000-(Rupees ninety three thousand only) with interest at the rate of 9% per annum on the enhanced compensation, from the date of petition till the date of realisation with proportionate costs.
The 3rd respondent shall deposit the additional compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The appellant will be at liberty to move the Tribunal for withdrawal of the deposited amount in accordance with law.
Sd/- C.S.DIAS,JUDGE dlk 07.04.2021