Kerala High Court
P.K. Ubaidulla vs National Insurance Co. Ltd on 1 June, 2016
Author: K. Ramakrishnan
Bench: P.N.Ravindran, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938
MACA.No. 1685 of 2006 ( )
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AGAINST THE AWARD IN OPMV 1272/2001 of M.A.C.A.T., MANJERI DT.\
01-12-2005
APPELLANT(S)/PETITIONER::
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P.K. UBAIDULLA, S/O. MOHAMMED,
KALARIPARAMBIL HOUSE, (P.O) MYTHRA, VIA. AREACODE,,
MALAPPURAM DISTRICT.
BY ADV. SRI.BABU S. NAIR
RESPONDENT(S)/3RD RESPONDENT::
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NATIONAL INSURANCE CO. LTD.,
BRANCH OFICE, KORAMBAYIL ARCADE, PANDIKKAD ROAD,,
MANJERI, MALAPPURAM - REPRESENTED BY THE, BRANCH
MANAGER. (RESPONDENT NO.1 AND 2 AND SUPPL. R4 BEFORE
THE, TRIBUNAL ARE NOT MADE PARTIES IN THIS
APPEAL,SINCE NO RELIEFS ARED CLAIMED AGAIST THEM.)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01-06-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
P.N. Ravindran &
K. Ramakrishnan, JJ.
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M.A.C.A. No.1685 of 2006
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Dated this the 1st June, 2016
JUDGMENT
K. Ramakrishnan, J.
The claimant in O.P.(MV) No.1272 of 2001 on the file of the Motor Accidents Claims Tribunal, Manjeri is the appellant herein. The claim petition was filed by the claimant claiming compensation for the injuries and disability suffered by him in a motor vehicle accident occurred on 4.5.2001. According to him, on that day at about 4.15 p.m. while he was walking along the side of market road at Areacode and when he reached the place of occurrence near Prince Medicals, an autorickshaw driven by the first respondent, owned by the second respondent and insured with the third respondent, came and hit against him. He suffered severe injuries. According to him, the accident occurred due to the negligent driving of the autorickshaw by the first respondent. So, respondents 1 to 3 are jointly and severally liable to pay compensation.
2. According to the claimant, he was a school teacher getting a monthly salary of Rs.6,700/- at the time of accident. He suffered disability affecting his earning capacity. So, the claim petition was filed claiming a total compensation of Rs.1,25,000/- on various heads. MACA 1685/2006 2
3. During the pendency of the proceedings the second respondent died and his legal representative was impleaded as supplemental fourth respondent as per order in I.A.No.2724/2005. Though respondents 1 and 4 entered appearance through counsel, they did not file any written statement. The third respondent entered appearance and filed a written statement admitting the insurance of the vehicle, but denied the negligence on the part of the first respondent. According to them, the accident occurred due to the negligence of the claimant himself and they are not liable to pay compensation. They denied the age, income, occupation, etc. claimed in the claim petition. The total compensation claimed is also exorbitant. So, they prayed for dismissal of the claim petition.
4. The claimant was examined as PW1 and Exts.A1 to A4 and Ext.X1 were marked. No oral or documentary evidence was adduced on the side of the respondents.
5. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the autorickshaw by the first respondent and awarded a total compensation of Rs.26,226/- on various heads as follows:
Transport to hospital : Rs. 560/-
Extra nourishment and
bystander expenses : Rs. 2,000/-
MACA 1685/2006 3
Medical expenses : Rs. 3,666/-
Pain and suffering : Rs.10,000/-
Loss of amenities : Rs.10,000/-
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Total : Rs.26,226/-
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The tribunal also held that respondents 1, 3 and 4 are jointly and severally liable to pay compensation but directed the third respondent insurance company to deposit the amount. Dissatisfied with the quantum of compensation awarded by the tribunal, the present appeal has been preferred by the appellant/claimant before the tribunal.
6. Heard Shri Babu S. Nair, learned counsel for the appellant and Shri M.A. George, learned counsel for the respondent.
7. Learned counsel for the appellant submitted that even though the tribunal found that the claimant suffered 1% disability, no amount was awarded under the head loss of earning power. Further, the amounts awarded under the heads pain and suffering and loss of amenities in life are also on the lower side. No amount was awarded under the head loss of earning during the period of treatment as well. So, the appellant is entitled to enhanced compensation on all heads.
8. On the other hand, learned counsel for the respondent submitted that the tribunal had considered all the aspects and the total compensation awarded is just and proper.
MACA 1685/2006 4
9. The case of the claimant in the claim petition was that he was a teacher in Government U.P.School, Mythra and getting a monthly salary of Rs.6,700/-. But no document has been produced to prove that fact. However, Exts.A2 and A3 show that the claimant suffered bimalleolar fracture of right foot ankle and muscular dystrophy and he was admitted in District Hospital, Manjeri on 4.5.2001 and underwent an operation on 7.5.2001. He was discharged from the hospital on 24.5.2001 with plaster cast and advised to come after two months. So, he could not have gone to school for at least two months. But there is no document produced regarding the nature of leave taken by him during that period. However, even if he had taken one month's leave for this purpose, he might have suffered some monetary loss and he will have to take loss of pay leave in future if he will have to take leave for some other purpose. Considering these facts, we feel that an amount of Rs.6,700/- can be awarded to the appellant under the head loss of earnings during the period of treatment.
10. He was treated as inpatient for a period of 20 days. But the tribunal noted only 14 days. The tribunal awarded only a sum of Rs.2,000/- towards extra nourishment and bystanders expenses which appears to be on the lower side and we enhance the same to Rs.4,000/- thereby the appellant will be getting an additional amount MACA 1685/2006 5 of Rs.2,000/- under that head. The tribunal has awarded only Rs.10,000/- under the head pain and suffering and Rs.10,000/- towards loss of amenities. Considering the fact that he was treated as inpatient for a period of 20 days and underwent an operation for the fracture sustained, the amount of Rs.10,000/- awarded under the head pain and suffering appears to be on the lower side. We enhance the same to Rs.20,000/-, thereby he will be getting an additional amount of Rs.10,000/- under the head pain and suffering. Similarly, it may have some impact on the personal life of the claimant on account of the 1% disability. He was aged only 44 years at the time of accident. Considering these aspects, we feel that the amount awarded under the head loss of amenities in life is also on the lower side and we enhance the same to Rs.15,000/-, thereby he will be getting an additional amount of Rs.5,000/- under that head. We are not inclined to enhance the compensation awarded under other heads as the amount awarded under other heads are just and proper.
11. So, the appellant/claimant is entitled to get an additional compensation of Rs.23,700/- over and above the amount awarded by the tribunal which the sole respondent insurance company is liable to pay with interest at 9% per annum from the date of petition till payment. Three months time is granted to the respondent to deposit MACA 1685/2006 6 the amount and if the amount is deposited, the claimant will be entitled to withdraw the same.
With the above modification of the impugned award, the appeal is allowed in part and disposed of. The parties are directed to suffer their respective costs in the appeal.
( P.N. Ravindran, Judge) (K. Ramakrishnan, Judge) kav/