Allowed

Nishad Navas v. Antony Varghese

Kerala HC5 Dec 2022MACA/3378/2014

Case brief

AI extract

What is this about?

The High Court enhanced the compensation awarded by the Tribunal in a motor accident claim. It increased heads for extra nourishment, bystander expenses, clothing, pain and suffering, and loss of amenities, and awarded compensation for loss of earning for one year. The Court maintained the Tribunal's finding of 20% contributory negligence on the appellant due to lack of driving license.

What did the court decide?

The compensation to the petitioner was enhanced from Rs.1,70,837/- to Rs.2,15,637/- and the insurer was ordered to pay 80% thereof with interest.

Nishad Navas Vs Antony Varghese — Insurance | 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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MONDAY, THE 5TH DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944

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MACA NO. 3378 OF 2014

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AGAINST THE AWARD DATED 10.10.2014 IN O.P.(M.V.) NO.983/2011 OF
ADDITIONAL SESSIONS JUDGE III/ ADDITIONAL MOTOR ACCIDENTS CLAIMS

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TRIBUNAL, MANJERI

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APPELLANT/PETITIONER:

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NISHAD NAVAS,
S/O.ALIKUTTY HAJI,
KANNANTHODI, MANATHANATH HOUSE,
VAVOOR,CHEEKODE AMSOM, DESOM AND POST,
ERNAD TALUK,MALAPPURAM DISTRICT
BY ADVS.SRI.BABU S. NAIR
 SRI.K.RAKESH

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RESPONDENTS/RESPONDENTS:

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1ANTONY VARGHESE,
S/O.VARGHESE, PETTOLIL HOUSE, CHELANNUR,
EDAKKARA P.O, THALAKKULATHOOR,
KOZHIKKODE DISTRICT, PIN-673 616
2HUSSAIN A.M,
ALAYATH MEETHAL HOUSE, MUDAKKALLOOR, ATHOLI P.O,
KOZHIKODE DISTRICT, PIN- 673 315
3THE UNITED INDIA INSURANCE COMPANY LTD.,
BRANCH OFFICE, COURT ROAD, MANJERI,
MALAPPURAM DISTRICT, PIN 676 121.

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R3 BY ADVS. SRI.JOHN JOSEPH VETTIKAD
 SRI.C.JOSEPH JOHNY

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.3378 of 2014

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JUDGMENT

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Dated this the 5th day of December, 2022

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Challenging an award passed by Additional Motor

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Accidents Claims Tribunal, Manjeri (for short ‘the Tribunal’) on 10.10.2014 in O.P.(MV) No.983/2011, the petitioner before the Tribunal has approached this Court in the appeal on hand.

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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 before the Tribunal.

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The case of the petitioner was that on 06.05.2011 at

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about 5:30 hours while he was riding a motor cycle bearing Registration No.KL10 AE 8120 through Elamaram-Areekode road, a Mini Lorry bearing Registration No.KL 11 Q 2928 dashed against his motorcycle on account of rash and negligent driving by it’s driver. In the impact of the hit, the petitioner fell on the road and sustained serious injuries. Raising allegation that the motor accident was occurred due to the rash and negligent driving of the Mini Lorry by its driver and a claim for Rs.4,00,000/- as compensation, the above Original Petition was

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M.A.C.A.No.3378 of 2014

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filed before the Tribunal. The driver, the owner and the insurer of the Mini lorry were arrayed as respondents 1 to 3 in the above Original Petition.

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Respondents 1 and 2 filed written statement without raising serious contentions against the pleadings in the Original Petition. The 3^rd respondent filed written statement admitting insurance coverage of the Mini Lorry bearing Registration No. KL 11Q 2928. But Liability to indemnify the insured was denied for the reason that the motor accident in question was occurred solely due to negligent riding of the motorcycle by the petitioner himself who was aged only 18 years and was devoid of any authorisation to ride it at the relevant time. The Original Petition was also sought to be dismissed for that reason.

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Before the Tribunal, evidence was adduced by both

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parties. Exts.A1, A2, A3 series to A5 series and A6 were marked on the side of the petitioner. The 3^rd respondent did not adduce any evidence. The Tribunal appreciated the evidence on record and arrived at a finding that the driver of the Mini Lorry bearing Registration No.KL 11Q 2928 has caused

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M.A.C.A.No.3378 of 2014

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the motor accident by his rash and negligent driving. The Tribunal also arrived at Rs.1,70,837/- as the compensation payable to the petitioner. Challenging the quantum of compensation stands awarded by the Tribunal for it’s inadequacy and disproportion, the appeal on hand is filed.

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It is contended by Sri.Rakesh K., the learned counsel

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for the petitioner that though the petitioner claimed to be aged 18 years and working as a coolie at the relevant time when he met with the motor accident, the Tribunal failed to award any sum as compensation towards loss of earning. According to him, the petitioner is aggrieved by the denial of compensation under that head. The learned counsel has urged further that the compensation stand awarded towards extra nourishment, damages to clothing and bystander expenses, are also inadequate and interference is warranted to make it adequate. According to the learned counsel, the petitioner had sustained grave injuries in the motor accident and therefore, the Tribunal is unjustified in confining grant of only meagre sums as compensation towards pain and sufferings. According to him,

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M.A.C.A.No.3378 of 2014

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the Tribunal is highly unjustified in awarding compensation towards loss of amenities and enjoyments in life and interference of this Court is inevitable.

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According to Sri. John Joseph Vettikad, the learned counsel for the 3^rd respondent, the petitioner was aged only 18 years and therefore, the Tribunal is justified in not awarding compensation towards loss of earning. According to him just and reasonable sum having been awarded by the Tribunal as compensation, claim for enhancement will not sustain and the appeal is only liable to be dismissed.

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Rs.30,000/- is found claimed as compensation towards loss of earning. The Tribunal was reluctant to award any sum as compensation towards loss of earning for the reason that the petitioner was aged only 18 years. In the Original Petition the petitioner claimed to be a Coolie worker. Instances are not rare where person having only 18 years would do work due to financial constraints in his family. The accident being occurred in the year 2011, this Court fixes the monthly income of the petitioner as Rs.4,000/-. Ext.A2 is the Accident Register cum

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M.A.C.A.No.3378 of 2014

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Wound Certificate and Ext.A4 series are the discharge summaries. Exts.A3 series and A6 series are the medical bills marked in evidence and the expenditure incurred by the petitioner for his treatment is established therefrom. From Ext.A2 and Ext.A4 series, it is revealed that the petitioner had sustained fracture of both bones of right leg, fracture of right scapula, fracture of right II rib, fracture of right acetabulum and also right brachial plexus injury in the motor accident. Treatment was also availed as inpatient for 18 days in two different spells.

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It is found from the impugned award that against a claim of Rs.2,000/-, Rs.1,000/- was awarded by the Tribunal as compensation towards extra nourishment and Rs.2,000/towards bystander’s expenses. It stands established from the documentary evidence on record that the petitioner had sustained grievous injuries in the motor accident and therefore this Court enhances the compensation under the respective heads to Rs.4,000/- each. Thus the petitioner will get Rs.3,000/- and Rs.2,000/- respectively as additional

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M.A.C.A.No.3378 of 2014

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compensation. As compensation towards damages to clothing, this Court is inclined to award Rs.500/- more to make it to Rs.1,000/-.

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The multiple fractures sustained by the petitioner must have caused much pain and sufferings to the petitioner. He also must have to keep away from enjoying the amenities of life. The Tribunal is highly unjustified in the context in not awarding compensation under the head loss of amenities and enjoyments in life. This Court awards Rs.40,000/- as compensation under that head. As compensation towards pain and sufferings, this Court awards Rs.50,000/- and therefore, the petitioner will get Rs.25,000/- as additional compensation. When viewed in the backdrop of the injuries sustained, this Court finds it reasonable to consider a period of one year for assessment of compensation for loss of earning. Thus Rs.48,000/- (Rs.4,000/- x 12) is arrived at.

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In the re-assessment as above, the petitioner will get Rs.1,18,500/- (Rupees One lakh Eighteen Thousand and Five Hundred only) (Rs.3,000/- + Rs.2,000/- + Rs.500/- +

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M.A.C.A.No.3378 of 2014

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Rs.40,000/- + Rs.25,000/- + Rs.48,000/-) as the total additional compensation and it will carry interest at the rate of 7.5% per annum from the date of filing of original petition till the date of realisation.

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The 3^rd respondent was found by the Tribunal liable to pay the compensation, but in view of the finding that the petitioner by his negligent riding of the motorcycle had also contributed towards the motor accident, the 3^rd respondent was made liable only to pay 80% of the compensation arrived at. This Court maintains the finding on contributory negligence of the petitioner for the reason that the petitioner failed to produce the driving licence authorising him to ride a motorcycle at the relevant time of the accident, despite direction issued by the Tribunal in that regard to produce it. Therefore, fixation of liability on the 3^rd respondent and the petitioner in the ratio 80:20 is maintained.

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The 3^rd respondent in the case on hand is thus liable only to pay Rs.94,800/- being 80% of Rs.1,18,500/(Rs.1,18,500 x 80/100= Rs.94,800/-) with interest at the rate

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M.A.C.A.No.3378 of 2014

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of 7.5% per annum and the original compensation stands awarded by the Tribunal with interest fixed for it (if not paid), from the date of filing of original petition till the date of realisation within a period of two months from the date of receipt of certified copy of this judgment. The disbursal of the compensation shall be in accordance with the directions issued

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by this Court in Circular No. 03/2019 dated 06.09.2019.

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M.A.C.A stands allowed accordingly.

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Sd/- MARY JOSEPH JUDGE

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MJL

Nishad Navas v. Antony Varghese

Case brief

What is this about?

What did the court decide?

Nishad Navas v. Antony Varghese

Case brief

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