Kerala High Court
Sujith.M vs Jose Sebastian on 4 December, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
SATURDAY, THE 4TH DAY OF DECEMBER 2021/13TH AGRAHAYANA, 1943
M.A.C.A.NO. 1672 OF 2015
AGAINST THE AWARD IN O.P.(MV) NO.1523 OF 2012 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM
APPELLANT:
SUJITH.M
SULFAR MANZIL (KOLLELIL), KUMARANALLOOR,
PERUMBAIKADU PO, KOTTAYAM - 686016.
BY ADVS.
PHILIP T.VARGHESE
ACHU SUBHA ABRAHAM
K.R.MONISHA
THOMAS T.VARGHESE
RESPONDENTS:
1 JOSE SEBASTIAN
PULICKAL HOUSE, MARANGATTUPALLY PO,
PALAI - 686635.
2 LEELAMMA JOSE
PULICKAL HOUSE, MARANGATTUPALLY PO,
PALAI - 686635.
3 THE NEW INDIA ASSURANCE CO. LTD.
KOTTYAM - 686001.
BY ADVS.
A.R.GEORGE
N.S.NAJEEB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR FINAL HEARING ON 27.11.2021, THE COURT ON 04.12.2021
DELIVERED THE FOLLOWING:
2
M.A.C.A.No.1672 of 2015
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
M.A.C.A.No.1672 of 2015
-----------------------------------------------------------
Dated this the 4th day of December, 2021
JUDGMENT
Appeal under Section 173 of the Motor Vehicles Act, 1988. The appellant was the petitioner in O.P.(MV) No.1523 of 2012 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were respondents 1 to 3 before the Tribunal.
2. The appellant had filed the claim petition under Section 166 of the Act, claiming compensation on account of the injuries that he sustained in an accident on 17.04.2012.
3. The appellant was riding his motorcycle bearing registration No.KL 5/AB/8833 along Kumaranalloor, Ettumanoor road. At about 9.00 a.m, when he reached in front of the Muhaydeen mosque near Parolickal a car bearing registration No.KL 35/1378 being driven by the 1st respondent came in the opposite direction and dashed against his motorcycle. In the accident, he sustained injuries including compressive fracture 3 M.A.C.A.No.1672 of 2015 to L2 vertebrae. He had undergone treatment in the Indo Americal Hospital as an inpatient from 17.04.2012 to 01.05.2012.
4. The appellant is a salesman in a textile shop and has been earning a monthly income of Rs.8,000/-.
5. Respondents nos.1 and 2 filed written statement refuting the averments in the claim petition. The 3 rd respondent also had filed a written statement disputing the age, income and occupation of the appellant in the claim petition. However, the 3rd respondent admitted that the vehicle had a valid insurance coverage.
6. The evidence in the case consists of only documentary evidence, Exts.A1 to A13 and Ext.X1.
7. The Tribunal, after analysing the pleadings and materials on record, by its award dated 13.02.2015, allowed the claim petition in part, by permitting the appellant to recover from the 3rd respondent an amount of Rs.4,12,500/-, with interest and costs.
8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 4 M.A.C.A.No.1672 of 2015
9. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3 rd respondent.
10. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable.
11. The learned counsel for the appellant contended that the Tribunal went wrong in fixing the monthly income of the appellant, assessing the bystanders' expenses and quantifying the compensation under the head, 'pain and suffering'. The learned counsel also would contend that compensation for loss of earning for atleast six months, taking into account the treatment required for the injuries, should have been awarded.
12. The Tribunal has fixed Rs.5,000/- as the monthly income of the appellant. The learned counsel appearing for the appellant contended that in the light of the principles laid down by the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] and as explained the principle in 5 M.A.C.A.No.1672 of 2015 Gopinathan A. and others v. Afzal Basha and another [2020 3 KHC 666], the Tribunal ought to have fixed the notional monthly income as Rs.8,000/-. In view of the principle in Ramachandrappa's case and Gopinathan A.'s case, and considering the claim of the appellant that he was drawing Rs.8,000/- every month during the period as income, the notional income of the appellant should be fixed at Rs.8,000/-.
13. The appellant sustained burst compression fracture to L2 vertebral body and underwent L1 L3 pedicle screws and posterior fixation of L2 fracture. He has been in the hospital from 17.04.2012 to 01.05.2012 and had to be under treatment for about 11 months. Considering that aspect, I am of the view that the bystander expense ordered by the Tribunal has to be refixed as Rs.5,500/-, an enhancement of Rs.2,500/-.
14. Rs.30,000/- was awarded by the Tribunal as compensation for 'pain and suffering'. In the nature of the injuries and the period during which the appellant had undergone treatment in my view, the compensation for 'pain 6 M.A.C.A.No.1672 of 2015 and sufferings' need to be enhanced as Rs.45,000/- from Rs.30,000/-. Therefore the enhancement is Rs.15,000/-.
15. In view of what are stated above, the compensation quantified by the learned Tribunal requires re- fixation as follows:-
Sl. Head of claim Compensation for Amount awarded Enhanced No by the Tribunal compensation 1 Loss of earnings 10,000 6,000 (5000x2) (8000- 5000=3000x2) 2 Partial loss of earnings - 3 Transport to hospital 2,000 - 4 Extra nourishment 2,000 - 5 Damage to clothing and articles 500 - 6 Bystander expenses 3,000 2,500 (5500- 3000=2500) 7 Medicines and treatment 1,87,000 - 8 Pain and suffering 30,000 15,000 (45000- 30000=15000) 9 Loss of amenities and 25,000 10,000 inconvenience in life 10 Loss of earning capacity 1,53,000 91,800 (8000-5000=3000 x12x17x 15%) 11 For permanent disability - - 12 Loss of bright marriage prospects - -
and career TOTAL 4,12,500 1,25,300
16. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just 7 M.A.C.A.No.1672 of 2015 compensation.
In the result, the appeal is allowed in part, by enhancing the compensation by an amount of Rs.1,25,300/- with interest at the rate of 7.5% per annum on the enhanced amount, from the date of petition till the date of deposit, and a costs of Rs.4,000/-. The 3 rd respondent is ordered to make payment of the enhanced compensation with interest and costs through the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall see that the amount of enhanced compensation is duly disbursed to the appellant in accordance with law.
Sd/-
P.G. AJITHKUMAR, JUDGE PV/dkr