Partly allowed

P.V Skaria v. Shaji T.M

Kerala HC10 Feb 2023MACA/1761/2014

Case brief

AI extract

What is this about?

The high court enhanced compensation for a pillion rider injured in a motorcycle-bus accident. Correcting the tribunal's income assessment and quantification of damages, the court calculated an award but limited the insurer's liability to 60% due to the pre-determined negligence of the fellow motorcyclist.

What did the court decide?

The respondent insurer was directed to deposit Rs.29,250/- representing its 60% share of the enhanced compensation along with applicable interest.

P.V Skaria Vs Shaji T.M — Motor Accident Claims | Kerala HC (2023)

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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 SOPHY THOMAS

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FRIDAY, THE 10^TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944

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MACA NO. 1761 OF 2014

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AGAINST THE ORDER/JUDGMENT IN OPMV 1031/2009 OF MOTOR

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ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA

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APPELLANT/PETITIONER:

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P.V SKARIA AGED 67 YEARS S/O.VARKEY,PALACHUVATTIL HOUSE,OLIYAPPURAM POST,PAITTAKKULAM KARA, KOOTHATTUKULAM VILLAGE,MUVATTUPUZHA TALUK,ERNAKULAM DIST PIN CODE 686 662 BY ADVS. SMT.DIVYA B.NAIR SRI.BRISTO S PARIYARAM

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RESPONDENTS/RESPONDENTS:

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1 SHAJI T.M S/O.MOINDEENKOYA,THACHARAMBATH(H),THEKKUMPURAM, CHENDAMANGALAM – 683 512.

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2 THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM – 695 001. 3 THE NEW INDIA ASSURANCE CO.LTD THAMBANOOR BRANCH,THIRUVANANTHAPURAM – 695 001. BY ADVS.SRI. ALEX ANTONY SEBASTIAN P.A. LAL K JOSEPH SURESH SUKUMAR(K/634/1997) ANZIL SALIM(K/000447/2018)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2023, THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING:

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MACA No.1761 of 2014

SOPHY THOMAS, J.

MACA No.1761 of 2014

Dated this the 10^th day of February, 2023

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J U D G M E N T

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This appeal has been preferred by the claimant in OP (MV) No.1031 of 2009 on the file of Motor Accidents Claims Tribunal, Muvattupuzha, impugning the award dated 11.11.2013, on the ground of inadequacy of compensation.

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The appellant, while pillion riding KL-17/D 5540

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motorcycle through MC road at Koothattukulam, KL-15/6436 KSRTC bus driven by the 1^st respondent in a rash and negligent manner, hit against the motorcycle, and as a result, the appellant as well as the rider of the motorcycle fell down and they sustained injuries thereby. Though the appellant approached the Tribunal claiming compensation of Rs.4 lakh, he was awarded only a meager amount of Rs.78,660/-, and hence this appeal.

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Respondents 1 and 2, the driver and owner of the KSRTC bus, filed written statement contending that, the

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MACA No.1761 of 2014

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accident occurred solely due to the rash and negligent riding of the motorcycle, and hence the claimant was not entitled to get any compensation from the respondents.

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The 3^rd respondent/insurer also contended that, the accident occurred due to the rash and negligent riding of the motorcycle, and the 1^st respondent was driving the bus at a normal speed with due care and caution. So, the insurer was not liable to compensate the injured, though there was valid policy for the KSRTC bus, at the time of accident.

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The rider of the motorcycle also suffered injuries in the accident and he preferred OP (MV) No.1029 of 2009 before the Motor Accidents Claims Tribunal, Muvattupuzha. Since both the claims were arising out of the same accident, both the O.Ps were tried together by the learned Tribunal.

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No oral evidence was adduced from either side. Exts.A1 to A13, B1 and X1 were marked.

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Heard learned counsel Sri.Bristo S Pariyaram, appearing for the appellant and learned counsel Sri.Lal K Joseph, appearing for the 3^rd respondent.

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Now let us see whether any interference is warranted in the impugned award, for any illegality or impropriety.

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MACA No.1761 of 2014

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The appellant was a 62 year old man doing catering service and according to him, he was earning monthly income of Rs.10,000/-. But, there was nothing to prove his job or income and so, the Tribunal fixed a notional income of Rs.3,000/- and loss of income was taken for six months. The appellant is challenging the notional income fixed by the Tribunal, though there is no evidence to prove his income. Since the accident was in the year 2008, going by the decision Ramchandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited (AIR 2011 SC 2951), he was eligible to get his notional income fixed @ Rs.6,500/-. So, for loss of earning for six months, he was eligible to get Rs.39,000/-. Since he was already paid Rs.18,000/- under the head 'loss of earning', he is eligible to get the balance Rs.21,000/- under that head.

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Towards pain and suffering, he was awarded only Rs.25,000/-. He had suffered compound segmental fracture of both bones of left leg and he had undergone 32 days of inpatient treatment. Considering that fact, Rs.10,000/- more seems to be reasonable over and above Rs.25,000/- awarded by the Tribunal.

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MACA No.1761 of 2014

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Towards bystander expenses, though the appellant claimed Rs.10,000/-, only Rs.4,000/- was awarded by the Tribunal. Considering the fact that he had suffered segmental fracture of both bones of left leg and underwent hospitalisation for 32 days, this Court is inclined to award Rs.10,000/-, as claimed by him. Since he was already paid Rs.4,000/-, he is eligible to get the balance Rs.6,000/- under the head 'bystander expenses'.

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Towards extra nourishment, the Tribunal awarded only Rs.3,500/-. Since he was aged 62 and suffered serious injuries of segmental fracture of both bones of left leg, Rs.1,500/- more is only just and reasonable under the head 'extra nourishment'.

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Towards transportation expenses, though the appellant produced Ext.A10 taxi bills for Rs.6,250/-, the Tribunal awarded only Rs.1,000/-. So, he is eligible to get Rs.5,250/- more towards transportation expenses.

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Towards loss of amenities also, he is eligible to get Rs.5,000/- more as he had suffered segmental fracture of both bones of left leg.

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MACA No.1761 of 2014

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Head of claim	Amount awarded by the Tribunal	Amount awarded in appeal	Difference to be drawn as enhanced compensation
Loss of earning	Rs.18,000/-	Rs.39,000/-	Rs.21,000/-
Pain and suffering	Rs.25,000/-	Rs.35,000/-	Rs.10,000/-
Bystander expenses	Rs.4,000/-	Rs.10,000/-	Rs.6,000/-
Extra nourishment	Rs.3,500/-	Rs.5,000/-	Rs.1,500/-
Transportation expenses	Rs.1,000/-	Rs.6,250/-	Rs.5,250/-
Loss of amenities	Rs.20,000/-	Rs.25,000/-	Rs.5,000/-
Total	Rs.71,500/-	Rs.1,20,250/-	Rs.48,750/-

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So, the appellant is entitled to get Rs.48,750/- towards enhanced compensation.

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The learned Tribunal, on finding that the rider of the motorcycle also was negligent and he contributed towards the accident, the negligence was fixed in the ratio 60:40 i.e. 60% of the negligence was fixed on the driver of the KSRTC bus and 40% was found on the rider of the motorcycle and so much so 40% of the compensation amount was deducted from the amount found payable by the insurer of the KSRTC bus. The appellant would contend that, there was no negligence from

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MACA No.1761 of 2014

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the part of the rider of the motorcycle and so, he has to get the full amount of compensation from the 3^rd respondent. It is pertinent to note that the rider of the motorcycle, who was the claimant in OP (MV) No.1029 of 2009, did not challenge the finding of the Tribunal that he was also negligent to the extent of 40%, and his compensation also was reduced by 40%. So,

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the appellant herein, who was only a pillion rider, cannot say that the rider of the motorcycle was not negligent, when the rider himself is not challenging that finding.

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It is true that, as the pillion rider, the appellant might have obtained the full compensation amount awarded by the Tribunal as well as the appellate court. But, rider or insurer of the motorcycle was not impleaded in the OP(MV), to claim compensation from them. They were not made parties in the appeal also and so, this Court cannot direct the owner/rider of the motorcycle or its insurer to contribute 40% of the compensation amount deducted, on account of the negligence from the part of the rider of the motorcycle. So, out of the enhancement of Rs.48,750/-, the liability of the 3^rd respondent is only 60% i.e to pay Rs.29,250/-.

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MACA No.1761 of 2014

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The 3^rd respondent/insurer is directed to deposit Rs.29,250/- in the Bank Account of the appellant with interest @ 8% per annum from the date of petition till the date of deposit (excluding interest for 92 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund.

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In the result, the appeal is allowed in part, and no order is made as to costs.

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Sd/-

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SOPHY THOMAS JUDGE

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smp

P.V Skaria v. Shaji T.M

Case brief

What is this about?

What did the court decide?

P.V Skaria v. Shaji T.M

Case brief

What is this about?

What did the court decide?

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