Kerala High Court
V.P.Gopidas vs P.Koya on 2 February, 2012
Bench: K.Hema, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933
MACA.No. 392 of 2008 ( )
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OPMV.688/1996 of II ADDL. MACT, KOZHIKODE
APPELLANT/PETITIONER:
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V.P.GOPIDAS, AGED 27 YEARS,
S/O.RAGHAVAN, VADAKKE PURACKAL HOUSE, P.O.KOLATHARA
KOZHIKODE - 673 655.
BY ADV. SRI.JACOB ABRAHAM
RESPONDENT(S)/RESPONDENTS:
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1. P.KOYA, S/O.KUNHALAVI, PATTAYIL HOUSE,
P.O.RAMANATTUKARA, KOZHIKODE.
2. ABDUL AZEEZ, S/O.VEERAN HAJI,
AMBALAPURATHU VEEDU, VELIPRAM AMSOM, RAMANATTUKARA
KOZHIKODE.
3. THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO.LTD., PRAMOD BUILDINGS
CHEROOTY ROAD, KOZHIKODE.
4. C.ABDURAHIMAN, S/O.MUHAMMED,
CHUTTAKATTIL HOUSE, P.O.PULPETTA, MANJERI
MALAPPURAM DISTRICT.
5. M.AYAMUTTY, S/O.MOHAMMED, PALLIYALIL
VEEDU, P.O.PUTHUR, PALLIKKAL AMSOM
THENHIPALAM, MALAPPURAM DISTRICT.
6. THE BRANCH MANAGER,
THE NEW INDIA ASSURANCE CO.LTD., V.K.BUILDINGS
CHEROOTY ROAD, KOZHIKODE.
R3 BY ADV.SRI.S.MAMMU
R6 BY ADV. SRI.P.K.BABU
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
02-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.HEMA & A.M.SHAFFIQUE, JJ.
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M.A.C.A No. 392 OF 2008
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Dated this the 2nd February, 2012
J U D G M E N T
Hema,J.
This appeal is filed by the claimant challenging the quantum of the award passed by the Motor Accident Claims Tribunal ( 'the Tribunal' for short).
2. The appellant filed a petition under Section 166 of the Motor Vehicles Acts ('the Act' for short) on the averments that on 29.8.1995 at about 6.45 p.m. while he was travelling in the cabin of a mini lorry having registration No.KLW 3243 with a load of wooden planks, the mini lorry hit at the rear side of a mini bus having registration No.KRD-5817. The mini bus overtook the mini lorry in a rash and negligent manner and abruptly stopped in front of the mini lorry and as a result of the accident, petitioner sustained grievous injuries. He was hospitalised.
3. According to appellant, incident happened due to rash and negligent driving of the mini lorry by its driver (2nd respondent) and driver of the mini bus (5th respondent). Both vehicles are insured and hence driver, owner and M.A.C.A No. 392 OF 2008 2 insurer of both the mini bus and mini lorry are liable to pay compensation jointly and severally. Respondents 3 and 6, insurers of the vehicles alone contested the matter. Appellant claimed compensation of Rs.1,50,000/- under various counts.
4. Respondents 3 and 6 filed statement admitting the insurance and disputed various details shown by the appellant in the petition relating to age, occupation, income, injuries etc. While 3rd respondent contended that incident happened due to the negligence of the driving of the vehicle which is insured with 6th respondent by its driver. Sixth respondent contended that incident happened due to the rash and negligent driving of the other vehicle by its driver.
5. Another person who sustained injuries in the same incident also filed a claim petition before the Tribunal and both petitions were disposed of by common Award. Documentary evidence was adduced on both sides but, no oral evidence was adduced. On the side of the appellant and other claimant, Exts.A1 to A9 were marked. On the side M.A.C.A No. 392 OF 2008 3 of respondents, Exts. B1 and B2 were marked. The certificate of permanent disability relating to other claimant was marked as Ext.C1.
6. Learned Tribunal considered the evidence in detail and found that appellant is entitled to compensation as detailed in paragraph 11 of the award. It was also found that incident happened due to rash and negligent driving of the 2nd respondent who drove mini lorry. Therefore, the driver, owner and insurer of the said vehicle alone was made liable to pay compensation. The driver, owner and insurer of the mini bus were exonerated from paying the compensation. The Award was passed only against 3rd respondent with whom the mini lorry was insured. The amount paid by 6th respondent, the insurer to bus No.KRD 5817 was found to be entitled to get back the share paid under Section 140 of the Motor Vehicles Act from the 3rd respondent.
7. Heard both sides. Perused records. Learned counsel for appellant argued that appellant's grievance is only in respect of the quantum of compensation ordered by the learned Tribunal. It is argued that compensation awarded for M.A.C.A No. 392 OF 2008 4 pain and suffering is too low. It is also submitted that the quantum for temporary loss of earning was fixed at `.1250/- per month for six months which is also too low. The appellant is a carpenter who gets a minimum of Rs.3000/- per month, it is submitted. The compensation for loss of amenities in life was fixed at Rs.3,000/- only, whereas, considering the nature of the injuries sustained, appellant is entitled to much higher amount under that head than awarded.
8. Learned counsel for 3rd respondent argued that amount awarded is only just, fair and reasonable taking into consideration the evidence, nature of injuries etc. On hearing both sides and on going through the impugned award and the documents produced, we find it necessary to look into the nature of the injuries sustained by the appellant. Those are shown in Ext.A2 wound certificate and in paragraph 10 of the award as follows:
"Compound fracture both bones of left leg, lacerated wound over left leg 3"x1", puncture wound over the leg lower 1/4th medial side and incised wound 4" long on the lateral aspect of left foot."
M.A.C.A No. 392 OF 2008 5
9. It is also to be noted that appellant was treated for wound debridment. P.O.P cast was also applied. It is brought to the notice of this court that claimant who filed O.P.(MV) 550/1996 who sustained injuries in the same accident filed an appeal before this Court as M.A.C.A 2050 of 2007 challenging same award impugned in this appeal and the appeal was disposed of by another Bench of this Court, as per judgment dated 3.1.2011. Though almost similar injuries were sustained (fracture), claimant in the other case was awarded Rs.16,500/- towards pain and suffering as compensation, but the amount awarded under the said head is only Rs.15,000/-.
10. On a comparison of the injury sustained by other claimant (O.P (MV) No.550/1996) with appellant's injuries we find that both the claimants sustained compound fracture on both bones of a particular leg. The other claimant in O.P (MV)550/1996 has an additional fracture of femur. However, appellant sustained a puncture wound over left leg lower 1/4th medial side measuring 3"x1" but such an injury or a similar injury was not sustained by other M.A.C.A No. 392 OF 2008 6 claimant. Apart from the above injury, certain other injuries were also sustained by the appellant and hence considering the nature of the injuries, period of treatment etc, we find that appellant can be granted an amount of Rs.16,500/-, as compensation for pain and suffering.
11. Appellant is granted Rs.7500/- towards temporary loss of earning and in computing the amount, Rs.1250/- per month was taken as appellant's income. Learned Tribunal found that no evidence was adduced to prove the employment or income. Hence notional income of Rs.1,250/- was taken as basis for computing temporary loss of earning.
12. Learned counsel for appellant submitted that appellant is a carpenter by profession and this fact is referred to in F.I.R Ext.A1. Therefore, he is entitled to get more than what is given to other claimant. According to learned counsel for appellant, the claimant in O.P.(MV) No.550/1996 is a non-earning person whereas, the appellant is a carpenter by profession he is entitled to more amount than what is claimed by other claimant. On consideration of M.A.C.A No. 392 OF 2008 7 the above contention raised by the appellant, we find that though the appellant is stated to be a carpenter and learned Tribunal has also treated the appellant as a carpenter, as rightly noted by the Tribunal, absolutely no evidence was adduced by appellant to prove his employment or income.
13. Even if the appellant is treated as a carpenter, unless there is evidence for income, it will not be proper to accept the claim made by appellant in respect of income at a higher rate. However, in respect of the claim made by other claimant in O.P (MV)550/1996 also, the same situation arose and no evidence was adduced in respect of income but in that case, the notional income was fixed at Rs.1500/-. Learned Tribunal observed that said claimant had also not produced document to prove his employment. We do not understand why appellant is discriminated in fixing the notional income . We are of view that notional income of the appellant also has to be computed at Rs.1500/- per month.
14. However, having found that the claimant in the other case is entitled to get compensation computing the M.A.C.A No. 392 OF 2008 8 monthly notional income at Rs.1500/-, we do not find any reason why the same benefit is not extended to appellant. Therefore, monthly notional income of appellant is fixed at Rs.1500/- per month, in the absence of any evidence from the appellant. On this basis, compensation for temporary loss of earning will come to Rs.9,000/-.
15. Towards loss of amenities in life, learned Tribunal awarded only Rs.3000/- to appellant, but no amount was awarded towards loss of amenities to the claimant in O.P (MV) 550/1996. However in appeal, another bench of this Court has awarded compensation of Rs.10,000/- towards compensation for loss of amenities and enjoyment in life to the other claimant in O.P (MV) 550/1996, whose case also stands on more or less on some footing. In such circumstances, we find that appellant also can be granted compensation of Rs.10,000/- towards loss of amenities and enjoyment in life.
16. Learned counsel for appellant also argued that amount of Rs.300/- awarded towards cost of petition is too low and that the rate of interest at 7% is also low. Towards M.A.C.A No. 392 OF 2008 9 cost of petition, other claimant is granted only Rs.300/- and no change is effected to this amount by the appellate court. Rate of interest fixed in the other case is also at 7% which is only reasonable. No reason is stated why this rate of interest be enhanced.
17. In the above circumstances, after deducting the amount which is already given to the appellant, as per the impugned award, appellant will be entitled to an additional amount of Rs.10,000/- as detailed below.
Awarded by Awarded by
this Court Tribunal
Compensation for pain & - `.16,500 `.15,000
suffering
Loss of amenities in
life - `.10.000 `. 3,000
Temporary loss of
earning - `. 9,000 `. 7,500
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Total `.35,500 `.25,500
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Therefore, the enhanced compensation payable to appellant by 3rd respondent is - `.35,500-25,500 = `.10,000/-
====== M.A.C.A No. 392 OF 2008 10 In the result, the following order is passed:
(i) Third respondent is directed to pay `.10,000/- as enhanced compensation with 7% interest from the date of petition till date of payment by way of cheque drawn in the name of claimant within a period of two months from the date of receipt of a copy of this judgment. The cheque shall be produced before the Tribunal.
This appeal is allowed.
(Sd/-K.HEMA, JUDGE) (Sd/-A.M.SHAFFIQUE, JUDGE) ma /True copy/ P.A to Judge