Dismissed

M.Haridasan v. M.Abdullakutty

Kerala HC24 Nov 2022MACA/114/2013

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal challenging the award of Rs. 1,39,004/- compensation for a motor accident injury under Section 163-A of the MV Act, 1988, holding the quantum was compliant with the Second Schedule and rejecting claims for higher income or additional heads.

What did the court decide?

The motor accident claims appeal was dismissed; the impugned award of Rs. 1,39,004/- was upheld.

M.Haridasan Vs M.Abdullakutty — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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THURSDAY, THE 24TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944

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MACA NO. 114 OF 2013

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AGAINST THE AWARD DATED 17.12.2010 IN OP(MV) NO.1221/2007 OF PRINCIPAL

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MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE

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APPELLANT/PETITIONER:

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M.HARIDASAN,
AGED 53 YEARS,
S/O GOPALAN, MALAYIL HOUSE,
P.O.GOPALAYAM, KAKKODI, KOZHIKODE.

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BY ADV SMT.K.V.RASHMI

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RESPONDENTS/RESPONDENTS:

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1M.ABDULLAKUTTY,
S/O KUNHIMOIDEEN, MANGADAN HOUSE, CHERUSHOLA P.O.,
KOTTAKKAL, MLAPPURAM.

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2ASHRAF V.T.
S/O RAYINKUTTY, VAZHATHODI HOUSE P.O., VALAVANNUR,
TIRUR, MALAPPURAM.

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3 ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, PRAMOD BUILDING, CHEROOTTY ROAD, KOZHIKODE(SBSTITUTED AS PER ORDER IN IA 6007/09 DATED 14.01.2010).

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BY ADVS.SRI.M.JACOB MURICKAN

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 SRI.JOHN DANIEL OLAPPURA

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 SRI.GEORGE CHERIAN THIRUVALLA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.114 of 2013

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JUDGMENT

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Dated this the 24th day of November, 2022

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This appeal is filed challenging an order passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 17.12.2010 in O.P.(MV) No.1221/2007. A sum of Rs.1,39,004/- was awarded by the Tribunal as compensation against a claim made by the appellant for Rs.2,00,000/- and aggrieved by the quantum stands awarded, the appeal on hand is preferred by the appellant before this Court.

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For the sake of clarity the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.

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It is averred that the petitioner had sustained injuries in a motor accident that took place on 22.09.2006 at about 10.30.p.m. He was standing by the side of a public road

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M.A.C.A.No.114 of 2013

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at Jews Street, Paravoor Village and a bus bearing Registration No.KL-10-D-T 5360 knocked him down and thereby serious injuries were caused. The accident was occurred due to the rash and negligent driving of the bus by the 2^nd respondent. Immediately after the accident he was taken to Don Bosco Hospital, North Paravoor, Ernakulam and was treated there. The 1^st respondent was the registered owner of the vehicle and the 3^rd respondent was the insurer. Alleging that respondents 1 to 3 are jointly and severally liable to compensate him the above original petition was moved as O.P.(M.V.) No.1221/2007 before the Tribunal.

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The 3^rd respondent has disputed the averments of the petitioner that he was working as ticket examiner in the offending bus. According to them he was a cleaner in the bus and fell down from the bus in the process of cleaning it. Accordingly the liability to indemnify the insured for the compensation payable is denied by them. The existence of a valid policy covering the date of accident is admitted.

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M.A.C.A.No.114 of 2013

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Before the Tribunal the petitioner has marked Exts.A1

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to A5 in evidence. Ext.B1 was marked on the side of the 3^rd respondent. Ext.C1 was also marked as court Exhibit. On appreciation of the evidence as aforesaid, the Tribunal found that the petitioner is entitled to get compensation for the injuries sustained under Section 163 A of the Motor Vehicles Act, 1988 (for short ‘the M.V. Act’). Rs.1,39,004/- was also arrived at as the compensation payable.

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The contention of Smt.Rashmi K.V., the learned counsel for the appellant was that the Tribunal fixed Rs.2,500/- as the monthly income for the purpose of calculation of compensation under the heads loss of earning and permanent disability. According to her the Tribunal ought to have fixed a sum proportionate to that fixed by the Apex Court in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236] for arriving at the compensation payable. The learned counsel canvassed for a fixation of Rs.5,000/-. The learned counsel has further contended that though the claim petition was filed under

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M.A.C.A.No.114 of 2013

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Section 166 of the M.V.Act, the Tribunal assessed the compensation as if the petition was filed under Section 163 A M.V.Act. According to her, for pain and sufferings only a meagre sum having been awarded, interference is warranted. The learned counsel has also contended that compensation was arrived at under the head permanent disability by taking the monthly income as Rs.2,500/- and on fixation of a higher sum as monthly income, the petitioner would get a reasonable sum under that head. According to the learned counsel, the period taken by the Tribunal for assessment of compensation for loss of earning is also on the lower side. She canvassed for a reconsideration of the period. The learned counsel has also brought to the notice of the court that compensation was denied to the appellant for loss of amenities and enjoyments in life.

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It is noticed that the only criminal document produced

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before the Tribunal is the FIR registered on 12.10.2006. It was marked as Ext.A1 and it was found registered with reference to the motor accident alleged. But the petitioner

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M.A.C.A.No.114 of 2013

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failed to mount the witness box to depose about the negligence of the driver of the bus. The chargesheet, the document prima facie indicative of negligence of the driver of the bus is also not produced. Therefore, the Tribunal was constrained to treat the Original Petition as one filed under Section 163 A M.V.Act and arrived at the compensation payable.

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M.V.Act incorporates II Schedule where the compensation payable under various heads is provided. True that the II Schedule stands omitted from M.V.Act, 1988 by the Parliament in the seventeenth year of Republic of India by the Motor Vehicles (Amendment) Act, 2019 (Act 32 of 2019) brought into force on 09.08.2019. For a claimant to be admitted for compensation under Section 163-A the Schedule provides that he must come within the annual income of Rs.40,000/-. Therefore, the learned counsel’s contention to consider an excess sum than Rs.3,000/- as monthly income cannot be considered in the case of the appellant.

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The appellant as a claimant under Section 163-A is only entitled to get compensation as envisaged under the

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M.A.C.A.No.114 of 2013

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Second Schedule which is appended hereunder:-

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“[THE SECOND SCHEDULE

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( See Section 163 A)

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SCHEDULE FOR COMPENSATION FOR THIRD PARTY FATAL ACCIDENT/INJURY CASES CLAIMS

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1. Fatal Accidents :

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Annual Income		Rs. 3000	Rs. 4200	Rs. 5400	Rs. 6600	Rs. 7800	Rs. 9000	Rs. 10200	Rs. 11400	Rs. 12000	Rs. 18000	Rs. 24000	Rs. 36000	Rs. 40000
AGE OF VICTIM	MULTIPLIER				RUPEE compen	S IN TH sation	OUSA in cas	NDS e of de	ath
		Rs.	Rs.	Rs.	Rs.	Rs.	Rs.	Rs.	Rs.	Rs.	Rs.	Rs.	Rs.	Rs.
Up to 15 yrs.	...15	60	84	108	132	156	180	204	228	240	360	480	720	800
Above 15yrs. but not exdg.20yrs.	...16	57	79.8	102	125.4	148.2	171	193.8	216.6	228	342	456	684	760
Above 20 yrs. but not exdg. 25 yrs.	...17	54	75.6	97.2	118.8	140.4	162	183.6	205.2	216	324	432	648	720
Above 25yrs. but not exdg. 30yrs.	...18	51	71.4	91.8	112.2	132.6	153	173.4	193.8	204	306	408	612	680
Above 30 yrs. but not exdg. 35 yrs.	...17	50	67.2	86.4	105.6	124.8	144	163.2	192.4	192	288	384	576	640
Above 35yrs. but not exdg. 40yrs.	...16	50	63	81	99	117	135	153	171	180	270	360	540	600
Above 40 yrs. but not exdg. 45 yrs.	...15	50	58.8	75.6	92.4	109.2	126	142.8	159.6	168	252	336	504	560
Above 45yrs. but not exdg. 50yrs.	...13	50	50.4	64.8	79.2	93.6	108	122.4	136.8	144	216	286	432	480
Above 50 yrs. but not exdg. 55 yrs.	...11	50	50	54	66	78	90	102	114	120	180	240	360	400
Above 55yrs. but not exdg. 60yrs.	.....8	50	50	50	52.8	62.4	72	81.6	91.2	96	114	192	286	320
Above 60 yrs. but not exdg. 65 yrs.	.....5	50	50	50	50	50	54	61.2	68.4	72	108	144	216	240
Above 65yrs.	.....5	50	50	50	50	50	50	51	57	60	90	120	180	200

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NOTE: The amount of compensation so arrived at in the case of fatal accident claims shall be reduced by 1/3^rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive.

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Amount of compensation shall not be less than Rs. 50,000.

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General Damages (in case of death):

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The following General Damages shall be payable in addition to compensations outlined above:

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(i) Funeral expenses

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(ii) Loss of Consortium, if beneficiary is the spouse

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(iii) Loss of Estate

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(iv) Medical Expenses—Actual expenses incurred before death supported by bills/vouchers but not exceeding

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-- Rs. 2,000/-

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-- Rs. 5,000/-- Rs. 2,500/-- Rs. 15,000/-

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General Damages in case of Injuries and Disabilities:

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(i) Pain and Sufferings

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M.A.C.A.No.114 of 2013

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8

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(a) Grievous injuries -- Rs. 5,000/(b) Non-grievous injuries -- Rs. 1,000/-

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(ii) Medical Expenses—Actual expenses incurred supported by bills/vouchers but not exceeding as one time payment -- Rs. 15,000/-

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Disability in non-fatal accidents:

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The following compensation shall be payable in case of disability to the victim arising out of non- fatal accidents:

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Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.

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PLUS either of the following:—

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(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

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Injuries deemed to result in Permanent Total Disablement /Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923.

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Notional income for compensation to those who had no income prior to accident:—

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Fatal and disability in non-fatal accidents:—

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(a) Non-earning persons —Rs. 15,000 p.a.

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(b) Spouse —Rs. l/3rd of income of the earning/surviving

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spouse.

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In case of other injuries only "general damage" as applicable.]”

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Therefore, scrutiny of the impugned award is

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needed only to see whether fixation of compensation was in accordance with the second schedule. This Court has no hesitation to hold that the compensation has been awarded by

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the Tribunal strictly in tune with the entitlement of the petitioner under the second schedule and the claim for

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M.A.C.A.No.114 of 2013

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enhancement of compensation on the basis of an enhanced

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monthly income being unworkable is only to be discarded.

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MACA fails for the reasons and is dismissed.

Sd/-

MARY JOSEPH

JUDGE

MJL

M.Haridasan v. M.Abdullakutty

Case brief

What is this about?

What did the court decide?

M.Haridasan v. M.Abdullakutty

Case brief

What is this about?

What did the court decide?

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