Allowed

Gopalakrishna Pillai v. the Branch Manager, the Icici Lombard General Insurance Co.Ltd., Kochi

Kerala HC23 May 2013MACA/1995/2012

Case brief

AI extract

What is this about?

In a Motor Accident Claims Appeal, the High Court modified the Tribunal's award, directing the insurer to deposit an additional Rs. 8,650 with interest for inadequate compensation under loss of income, expenses, and damages, affirming the driver's liability while rejecting the insurer's contention of the petitioner's negligence.

What did the court decide?

To modify the Tribunal's award by granting an additional compensation of ₹8,650 along with 7.5% interest.

Gopalakrishna Pillai Vs the Branch Manager, the Icici… — Motor Accident Claims | Kerala HC (2013)

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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 V.K.MOHANAN

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THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935

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MACA.No. 1995 of 2012 (E)

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AGAINST THE ORDER/JUDGMENT IN OP(MV)No.1694/2009 of M.A.C.T.,KOLLAM DATED 28-02-2012

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APPELLANT/PETITIONER :

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GOPALAKRISHNA PILLAI,

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S/O.PARAMESWARAN PILLAI, SHEEJA BHAVAN, PALLIMON.P.O., KOLLAM.

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BY ADV. SRI.PRATHEESH.P

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RESPONDENT/3RD RESPONDENT:

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THE BRANCH MANAGER,

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THE ICICI LOMBARD GENERAL INSURANCE CO. LTD., KOCHI-682 031.

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BY ADV. SRI.K.B.RAMANAND BY ADV. SRI.R.AJITH KUMAR (128/84)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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------------------------------------M.A.C.A.No.1995 of 2012

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Dated this the 23^rd day of May, 2013

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JUDGMENT

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The petitioner/claimant in O.P.(M.V.)No.1694 of 2009 of the court of the Motor Accidents Claims Tribunal, Kollam is the appellant herein as he is not satisfied with the compensation amount awarded in the above case.

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According to the petitioner, at about 3.30 p.m. on 09/05/2009 while the petitioner was walking through Nedumankavu-Nallila public road from North to South along the Eastern side of the said road and when he reached the western side of Magistrate junction, KL-24/A3372 tipper lorry driven by the second respondent came in a rash and negligent manner and knocked him and the petitioner fell down and sustained injuries. The accident occurred due to the negligence of R2. R1 is the owner of the vehicle and R3 is the insurer of the said vehicle. Thus in the above petition the petitioner has claimed a compensation of total sum of `50,000/-.

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M.A.C.A.No.1995 of 2012

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: 2 :

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During the trial of the case the petitioner himself was got examined as PW.1 and produced Exts.A1

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to A7 documents. No evidence, either oral or documentary, was produced from the side of the respondents. After having considered the entire evidence and materials on record, the learned Judge of the Tribunal found that the petitioner is entitled to get a total sum of 25,500/- as compensation and also an amount of 500/- towards costs. Thus claim was disposed of awarding a sum of `25,500/- with 7.5% interest from 31/12/2009 till the date of realisation. The 3^rd respondent is directed to deposit the amount. Default interest provision is also incorporated in the award. It is the above award challenged in this appeal.

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I have heard Sri.Pratheesh.P., the learned counsel for the appellant and the learned counsel for the respondent.

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The accident occurred in the present case is not disputed by the contesting respondents. Of course, the third respondent has raised the contention to the effect

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M.A.C.A.No.1995 of 2012

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: 3 :

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that the accident occurred was not due to the negligence of the driver of the insured vehicle but that of the petitioner. According to the 3^rd respondent, when the petitioner was walking, slipped and fell down and sustained injuries. But the above contention of the 3^rd respondent is repelled by the learned Judge of the Tribunal. According to me, the above approach of the Tribunal is fully correct especially when no evidence is adduced from the side of the respondent to substantiate their contention that the petitioner sustained injuries due to his negligence. At the very same time it is relevant to note that, to prove the incident and to show the negligence of the vehicle insured with the 3^rd respondent, the petitioner mounted to the box and gave evidence as PW.1. Besides the above, the petitioner has also produced documentary evidence as Exts.A1 to A4 to show the guilt and the negligence of the driver, which resulted in the accident. Thus, according to me, the learned Tribunal Judge is fully justified in his finding in favour of the petitioner/claimant fixing the liability on the respondents

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M.A.C.A.No.1995 of 2012

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and rejecting the contention raised by the 3^rd respondent.

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The next question to be considered is whether the compensation fixed by the Tribunal is just and fair or whether any interference is warranted. As per the claim of the petitioner he is a business man and he was at the age of 55 years when the accident occurred. It is true that the petitioner has not produced any evidence to prove his income and therefore the learned Tribunal Judge fixed the income of the petitioner for one month as 3,000/-. Thus, the loss of earning during the period of the treatment was fixed as 6,000/-. According to me, the petitioner being a business man, though no evidence is produced by him to show the income, the monthly income could have been fixed as 3,500/-. If that be so, he is entitled to get an additional amount of 1,000/- towards the loss of income. It is relevant to note that, though the petitioner had been hospitalised for two days, bystanders' expense is fixed as `250/- which, according to me, is insufficient, considering the cost of living during the relevant period. Thus, according to me, for two days, the

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M.A.C.A.No.1995 of 2012

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petitioner is entitled to get a sum of 400/- towards the bystanders' expense. Hence, on this account he is entitled to get an additional amount of 150/-. Similarly, towards transport to hospital he was given only 1,000/and towards extra nourishment similar amount was awarded, which, according to me, is insufficient. In the light of the facts and circumstances involved in the case, on each count the petitioner is entitled to get 500/- more and thus he is entitled to get an additional sum of 1,000/towards compensation for transportation to hospital and for extra nourishment. Though the petitioner sustained fracture of clavicle, towards pain and suffering, the amount is fixed as 10,000/- which, according to me, requires modification and a sum of 12,500/- will be sufficient to meet the ends of justice. Hence, the petitioner is entitled to get an additional amount of 2,500/- towards pain and suffering. Medical expense is adequately compensated on the basis of Ext-A7 produced by the petitioner and therefore no interference is warranted. It is relevant to note that, though the

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M.A.C.A.No.1995 of 2012

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petitioner is a business man and aged 55, the compensation for discomfort, only a sum of 6000/- is given, which according to me, is not proper and adequate. According to me, the petitioner is entitled to get an additional compensation of 4000/- for the discomfort and loss of amenities in life. Thus, the petitioner/appellant is entitled to get an additional compensation of `8,650/- which will bear interest @ 7.5% per annum.

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In the result, this appeal is allowed modifying the award dated 28/02/2012 in O.P.(M.V.)No.1694 of 2009 of the Motor Accidents Claims Tribunal, Kollam, awarding an additional compensation of `8,650/- with 7.5% interest. All other orders of the Tribunal stand. The 3^rd respondent is directed to deposit additional amount with interest within three months from today.

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The appeal is allowed accordingly.

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V.K.MOHANAN, JUDGE

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skj

Gopalakrishna Pillai v. the Branch Manager, the Icici Lombard General Insurance Co.Ltd., Kochi

Case brief

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Gopalakrishna Pillai v. the Branch Manager, the Icici Lombard General Insurance Co.Ltd., Kochi

Case brief

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