Allowed

Bipin Babu v. Jayalal

Kerala HC7 Oct 2022MACA/2226/2012

Case brief

AI extract

What is this about?

The appellate court enhanced the compensation quantum awarded to an accident victim regarding loss of earnings, pain and suffering, and amenities. Furthermore, it directed the insurance company to pay the enhanced amount at the first instance, holding the insurer liable to recover the loss from the owner despite the absence of a fitness certificate.

What did the court decide?

Compensation enhanced to Rs. 61,500/-; Insurance Company directed to pay amount at first instance with right to recover from owner.

Bipin Babu Vs Jayalal — 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 MR.JUSTICE C. JAYACHANDRAN

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FRIDAY, THE 7^TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944

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MACA NO. 2226 OF 2012

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AGAINST THE ORDER/JUDGMENT DATED 12.4.2012 IN OPMV 929/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM

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APPELLANT/PETITIONER:

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BIPIN BABU S/O.BABU RAJAN, RESHMA BHAVAN, MEENADU, CHATHANNOOR, KOLLAM.

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BY ADV SRI.PRATHEESH.P

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RESPONDENTS/RESPONDENTS:

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1 JAYALAL P.S, S/O.PADMANABHA PILLAI, PADMA VILAS, KOONAYIL, PARAVOOR, KOLLAM. 691 301.

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2 SUNIL, S/O.RAVEENDRAN, VARUVILA VEEDU, KOTTARANANCONAM, KOONAYIL, PARAVOOR, KOLLAM-691 301.

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3 THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., KOLLAM-691 001. BY ADVS.

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V.VENUGOPALAN NAIR SRI.LAL GEORGE RAJESH THOMAS

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA No.2226/2012

C.JAYACHANDRAN, J.

MACA No.2226 of 2012

------------------------------------Dated this the 7^th day of October, 2022

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J U D G M E N T

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This appeal is preferred by the claimant in OP(MV) No.929/2010 of the Motor Accidents Claims Tribunal, Kollam assailing the award dated 12.4.2012, essentially on the insufficiency of the quantum of compensation granted. The appellant/claimant sustained injuries in a road accident which took place on 3.6.2009.

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Heard Sri.P.Pratheesh, learned counsel for the appellant and Sri.Lal George, learned counsel for the third respondent/insurance company. Perused the records.

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Learned counsel for the appellant first submitted that the notional annual income reckoned by the Tribunal at Rs.15,000/- is very much on the lower side. Going by the index indicated in Ramachandrappa

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MACA No.2226/2012

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v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] , the claimant is entitled to a notional income of Rs.7,000/- pertaining to the year 2009. In answer to the same, learned counsel for the third respondent/insurance company pointed out that all what is claimed in the petition is Rs.5,000/- per month and an amount beyond the same cannot be granted, since the claimant is the best judge, insofar as his income is concerned. The contention of the learned counsel for the insurance company is liable to be recognised. All the same, the monthly income claimed at Rs.5,000/- is liable to be recognised. In the circumstances, the monthly income is enhanced to Rs.5,000/-.

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The second contention is with respect to the compensation on account of pain and suffering. The Tribunal reckoned only Rs.15,000/- which is on the lower side, according to the learned counsel for the appellant. In answer to the same, learned counsel for the insurance company pointed out that the claimant was hospitalized only for a period of two days. However, taking note of the injuries referred to in

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MACA No.2226/2012

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paragraph nos.8 & 9 of the impugned award, this Court is of the view that a nominal enhancement of Rs.5,000/- can be granted to the claimant on account of compensation for pain and suffering. Accordingly, compensation on account of pain and suffering would stand enhanced to Rs.20,000/-.

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Similarly, the loss of earnings reckoned for a period of 2 months only - quite insufficient according to the appellant - is also liable to be considered. This Court is of the opinion that loss of earnings for three months can be reckoned, having regard to the totality of the facts and circumstances and the injuries sustained, as taken note of in Exts.P8 and P9 certificates.

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Under the head 'loss of amenities', Rs.8,000/has been granted, which again, according to the learned counsel for the appellant, is on the lower side. Here again, taking note of the injuries sustained by the claimant as taken note of in Ext.P8 wound certificate and Ext.P9 treatment certificate,

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MACA No.2226/2012

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this Court is inclined to enhance the same to Rs.12,000/-.

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Finally, a sum of Rs.1,000/- granted under the head extra nourishment is enhanced to Rs.2,000/-.

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In the circumstances, the MACA is allowed and the compensation amount to be granted to the appellant/claimant is re-worked as indicated in the tabular statement herein below:

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Sl. No.	Head of claim	Amount awarded by the Tribunal(Rs)	Total amount after enhancement in appeal (Rs.)
1	Loss of earnings	2500	15000 (5000x3)
2	Transportation to hospital	3000	3000
3	Extra nourishment	1000	2000
4	Pain and suffering	15000	20000
5	Medical expenses	9500	9500
6	Loss of amenities	8000	12000
	Total	39000	61500
	Amount enhanced =Rs.22,	500/-(61500	- 39000)

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The appellant filed IA No.1/2022 seeking amendment of the appeal memorandum to incorporate the ground under which the appellant seeks the

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MACA No.2226/2012

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insurer to pay the amount at the first instance and to recover the same from the owner. In the impugned award, due to absence of fitness certificate, the third respondent/ insurance company was exonerated from the liability to pay the compensation amount and the owner and the driver were held jointly liable to pay the same. In Pareed Pillai V. Oriental Insurance Co, Ltd.[2018 (5) KHC 1] , this Court held that absence of permit or fitness certificate, though a fundamental breach, the interests of justice demands the insurer to pay the compensation amount and to recover it from the owner of the vehicle. Taking note of the above legal position, this Court interferes with the exoneration of the third respondent/insurance company and directs the said respondent to pay the compensation amount to the appellant/claimant at the first instance with an enabling clause to recover the same from the owner and driver of the vehicle.

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The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed

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MACA No.2226/2012

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in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition.

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Sd/C.JAYACHANDRAN JUDGE

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Bipin Babu v. Jayalal

Case brief

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Bipin Babu v. Jayalal

Case brief

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