Partly allowed

P.Ayyappan v. T.Oommen Panicker

Kerala HC9 Jun 2011MACA/720/2003

Case brief

AI extract

What is this about?

The High Court allowed the Motor Accident Claim appeal, enhancing the compensation awarded for injuries sustained. The court modified the Tribunal's award by correcting income figures, adding head for loss of amenities, and directed the insurer to deposit the enhanced amount.

What did the court decide?

Additional compensation of Rs. 22,500/- granted; Insurance Company directed to deposit total award with interest and cost.

P.Ayyappan Vs T.Oommen Panicker — Motor Accident Claims | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933

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MACA.No. 720 of 2003()

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---------------------OPMV.1164/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ....................

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APPELLANT/PETITIONER

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-------------P.AYYAPPAN, S/0 RAGHAVAN AGED 47 YEARS, CHEMMADAKKADU HOUSE MANANTHERI , P.O. MANENTHERI

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BY ADV. SRI.GRASHIOUS KURIAKOSE

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RESPONDENTS/RESPONDENTS

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T.OOMMEN PANICKER S/O THOMAS PANICKER KOCHUPARAMBIL HOUSE COURT ROAD, MAVELIKKARA

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V.CHANDRASEKHARAN S/0 VEERAPPA GOUNDER PAKANATHAM VIA. ERIYODE, DINDIKKAL ANNA DISTRICT, VATASATHUR TAMILNADU, NOW RESIDING AT TOP CONSTRUCTION QUARTERS SIVAPURAM AMSOM, DESOM, P.O.SIVAPURAM

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NATIONAL INSURANCE CO. LTD KANNUR

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ADV. SRI.RAJAN P.KALIYATH FOR R3 SRI.A.MOHAMED MUSTAQUE FOR R1

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.K.BASHEER & P.Q.BARKATH ALI, JJ.

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M.A.C.A.No.720 OF 2003

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- - - - Dated this the 9^th day of June, 2011

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JUDGMENT

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Barkath Ali, J.

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Appellant is the claimant in O.P.(MV)No.1164/1998 on the file of Motor Accidents Claims Tribunal, Thalassery. In this appeal he challenges the judgment and award of the Tribunal dated January 9, 2003 awarding a compensation of Rs.46,800/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on April 1, 1997 at about 10 a.m. :

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Fracture of 7^th ,8^th and 9^th ribs and pain of the lumbar spine.

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While the claimant was standing by the side of the road at

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Vellilode, he was knocked down by the tipper lorry bearing Reg.No.KL-4-A/7166 driven by the second respondent. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 1,00,000/-.

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MACA.No.720/2003 2

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Respondent No. 1 the owner of the offending lorry though entered appearance did not file any written statement before the Tribunal. Respondent No.2, the driver of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but denied the liability.

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This O.P. was jointly tried along with the O.Ps. filed by the other injured person and the legal heirs of the deceased in the accident and a common award was passed by the Tribunal. Pws 1 and 2 were examined and Exts.A1 to A18 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by second respondent and awarded a compensation of Rs. 46,800/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost against the owner and the driver of the offending vehicle. The Tribunal exonerated the third respondent Insurance Company from the liability finding that the vehicle was not

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MACA.No.720/2003 3

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covered by a valid insurance policy. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal exonerating the third respondent Insurance Company.

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Heard the counsel for the appellant/claimant and the

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counsel for the Insurance Company.

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The accident is not disputed. The following points arise for consideration :

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Whether the finding of the Tribunal exonerating the third respondent Insurance Company can be sustained ?

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Whether the claimant is entitled to any enhanced compensation.

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Point No.1

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The Tribunal exonerated the third respondent Insurance

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Company on the ground that the claimant has failed to prove that the offending vehicle was covered by a valid insurance policy at the time of the accident.

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When this appeal came up of hearing, learned counsel for the Insurance Company fairly conceded that the offending vehicle was

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MACA.No.720/2003 4

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covered by a valid insurance policy at the time of the accident. That

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being so, the third respondent Insurance Company is bound to

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indemnify the owner of the offending vehicle, the first respondent.

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Point No.2

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The next question for consideration is whether the claimant is entitled to any enhanced compensation.

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The Tribunal awarded a total compensation of Rs.46,800/-.

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The break up of the compensation amount awarded is as under:

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Transportation	- Rs.1,000/-
Bystander exp.	- Rs.3,300/-
Extra nourishment	- Rs.1,500/-
Loss of earnings	- Rs.9,000/-
Treatment expenses	- Rs.3,500/-
Pain and suffering	- Rs.15,000/-
Disability	- Rs.13,500/-

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Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads.

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The Tribunal took the monthly income of the claimant as Rs.1,500/- and took the percentage of disability as 5% as certified by the doctor in Ext.A15 and adopted a multiplier of 15 and awarded Rs. 13,500/- for the disability caused. According to the claimant, he

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MACA.No.720/2003 5

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was a construction worker earning more than Rs.3,000/- per month. He has also testified to that effect as PW2. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs.2,000/-. The multiplier adopted by the Tribunal as 15 and the percentage of disability as 5% appear reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.18,000/- ( 5% x 2000 x 12 x 15). Thus on this count, the claimant is entitled to an additional compensation of Rs.4,500/-.

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The Tribunal awarded Rs.15,000/- for pain and suffering endured. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 20,000/- would be reasonable on this count.

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No compensation is seen awarded by the Tribunal for loss of amenities and enjoyment in life. Having regard to the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 10,000/- would be reasonable on this count.

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There is another aspect in this case. The Tribunal awarded Rs. 9,000/- towards loss of earnings for 6 months @ Rs. 1,500/- per

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MACA.No.720/2003

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month. As we have fixed the monthly income of the claimant as Rs. 2,000/-, he is entitled to a compensation of Rs. 12,000/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 3,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same.

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In the result, the claimant is found entitled to an additional compensation of Rs. 22,500/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the compensation awarded by the Tribunal as well as the enhanced compensation with interest and cost before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent.

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The Appeal is disposed of as found above.

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A.K.BASHEER, JUDGE

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P.Q.BARKATH ALI, JUDGE

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sv.

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MACA.No.720/2003 7

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MACA.No.720/2003 8

P.Ayyappan v. T.Oommen Panicker

Case brief

What is this about?

What did the court decide?

P.Ayyappan v. T.Oommen Panicker

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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