Allowed

Anil T.Jose v. Thiru.a. and Others

Kerala HC10 Oct 2018MACA/3091/2008

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appellant's appeal against an amended award of compensation for a 100% permanent disability. The Court held that the Tribunal erred in attributing 30% contributory negligence to the claimant and ordered the re-calculation of the multiplier to determine the additional amount payable by the insurers.

What did the court decide?

Additional compensation of Rs. 48,000/- with interest at 7.5% per annum to be paid by the insurers.

Anil T.Jose Vs Thiru.a. and Others — Execution and Attachment | Kerala HC (2018)

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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 P.R.RAMACHANDRA MENON

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WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940

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MACA.No. 3091 of 2008

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AGAINST THE AWARD IN OPMV 1375/1999 of ADDL.MACT,ERNAKULAM DATED 31-01-2008

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APPELLANT/CLAIMANT:

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ANIL T.JOSE

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S/O. T.K. JOSE, AGED 31 YEARS, THACHUTHARA HOUSE, CHITTOOR ROAD,, KOCHI - 682 018.

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BY ADVS.

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SRI.C.P.SAJI SRI.VARGHESE MYLOTH

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RESPONDENTS/RESPONDENTS:

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1 THIRU.A. THIRUMOORTHY S/O.ARUNACHALAM, VENGAPALAYAM,, KARUR.

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2 S.GEETHA , W/O.SIVANANDAN STANE S.ROAD, 11 STREET,, THIRUPUR - 2.

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3 UNITED INDIA INSURANCE COMPANY LTD. D.NO.34, THIRUPUR - 1, 638 601.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.3091 of 2008

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JUDGMENT

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This appeal has been preferred by a hapless victim

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who had to suffer 100% permanent disability in

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connection with the motor accident occurred on 02.03.1995.

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Heard the learned counsel for the appellant at length.

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Despite completion of service of notice, there

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is nobody to represent the third respondent insurance Company.

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Since the policy is admitted and the liability is not disputed, except the quantum, this Court as per the order dated 09.10.2018 dispensed with service of notice to the respondents 1 and 2, whose presence is

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not required to adjudicate the issue regarding enhancement of compensation.

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The case of the appellant is that he was

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proceeding on a Bicycle from Broadway and entered the

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Banerjee road on 02.03.1995 and was proceeding along

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M.A.C.A.No.3091 of 2008

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the side of the road, when the tourist taxi van driven by the first respondent, owned by the second respondent and insured by the third respondent knocked him down causing serious injuries, which led to the claim petition filed before the Tribunal. The first and second respondents did not choose to contest the matter. The policy was admitted by the insurer , challenging the alleged negligence attributed on the driver and the quantum.

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The evidence adduced before the Tribunal

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consists of deposition of Pws.1 to 4, including the doctor (PW.2), who issued the disability certificate. Documents have been produced as Exts.A1 to A19 series.

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No evidence was adduced from the part of the respondents. Based on the materials on record, the Tribunal fixed 70% of negligence on the driver of the tourist taxi van and fixed 30% negligence on the claimant/rider, stating that the accident was during night and that there was lapse on his side as well. The total compensation payable was fixed as Rs.920024/-, and after deducting 30%, the balance of Rs.5,85,451/-

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M.A.C.A.No.3091 of 2008

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was ordered to be paid with interest, which is sought to be enhanced in this appeal.

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The learned counsel for the appellant submits

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that the appellant was aged 18 years and was a student pursuing his Pre-degree course at that point of time. Only Rs.2000/- has been taken by the Tribunal as the monthly income, holding that by virtue of the materials produced, the claimant was only an 'average student' or 'below average student'. After hearing and considering the materials on record, this Court is of the view that the course pursued by the Tribunal, reckoning Rs.2000/as notional monthly income on the given date, i.e. 02.03.1995 (with reference to the reasons pointed out) is not liable to be interdicted. However, the Tribunal has reckoned only '16' as the multiplier. The proper multiplier, based on the age of the injured, ought to have been '18', which requires a re-working of the compensation.

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The Tribunal has reckoned 100% disability and

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has awarded compensation accordingly. Whether the Tribunal was justified in reducing the compensation to

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M.A.C.A.No.3091 of 2008

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an extent of 30%, attributing contributory negligence on the part of the appellant/claimant is a point to be considered. It remains a fact that the police, after investigation had filed charge sheet against the driver of the offending vehicle, who did not choose to contest the matter. That apart, positive evidence was adduced from the part of the appellant/claimant, also by examining the witnesses to support his contention in this regard. It is also pointed out by the learned counsel for the appellant that a pedestrian was also knocked down by the offending vehicle in the very same accident and this by itself shows the negligence on the part of the driver of the offending vehicle.

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After hearing the learned counsel for the

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appellant and also after going through the materials on record, including the discussion made by the Tribunal, this Court is of the view that the Tribunal was not justified in reducing the compensation to an extent of 30% from the actual compensation payable, which is liable to be restored. It is held that the accident was

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solely because of the negligence on the part of the

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M.A.C.A.No.3091 of 2008

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driver of the tourist taxi van ; in turn making the appellant eligible to receive the entire compensation awarded by the Tribunal. On re-working the disability compensation (due to change in appropriate multiplier), it comes to Rs.4,32,000/-(2000 x 12 x 18). Since the Tribunal has awarded only a sum of Rs.3,84,000/-, there is a deficit of Rs.48000 /-, which is to be satisfied in addition to the total compensation fixed by the Tribunal.

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Though the matter was pending before this

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Court for nearly 10 years, no additional materials have been produced from the part of the appellant so as to enable the appellant to claim enhanced compensation under any other heads. In the said circumstance, the additional compensation of Rs.48000/ - (Rupees forty eight thousand only) requires to be satisfied with interest at the rate of 7.5% per annum from the date of the claim petition, till satisfaction. It is ordered accordingly. The third respondent Insurance company shall satisfy the said amount along with the deducted amount awarded by the Tribunal (30%) due to re-fixation

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M.A.C.A.No.3091 of 2008

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of negligence by this Court, at the earliest, at any

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rate within six weeks from the date of receipt of a

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copy of the judgment.

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Appeal stands disposed of.

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Sd/- P.R. RAMACHANDRA MENON, JUDGE

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/true copy/

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P.S. TO JUDGE.

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Anil T.Jose v. Thiru.a. and Others

Case brief

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Anil T.Jose v. Thiru.a. and Others

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