Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 663 (KER)

Shaji v. Harshan

2013-07-31

THOMAS P.JOSEPH

body2013
Judgment : 1. This appeal arises from the award dated 30.06.2011 in O.P (M.V).No.2404 of 2003 of the Motor Accident Claims Tribunal, Ernakulam (for short, "the Tribunal"). 2. The appellant while riding on the pillion of a motor cycle on 07.05.2000 suffered injuries due to an autorikshaw driven by the first respondent, belonging to the second respondent and insured with the third respondent hitting the motor cycle. The appellant claimed compensation from the respondents alleging that the accident occurred due to the negligence of the first respondent. 3. Respondents 1 and 3, driver and insurer of the offending vehicle remained absent in the Tribunal. The second respondent alone contested. 4. The Tribunal found that accident occurred due to the negligence of the first respondent, assessed compensation payable to the appellant at Rs.12,489/- found that since Ext.A9, policy of insurance is only an Act only policy, the third respondent is not liable and fastened liability on respondents 1 and 2. The appellant is aggrieved by the quantum of compensation awarded and exoneration of the third respondent from liability. 5. Learned counsel for the appellant has contended that compensation awarded is low. It is submitted that Ext.A7, certificate of salary which was not challenged in cross examination was rejected for no reason. 6. It is stated that the appellant, aged 34 years at the relevant time is a fitter of rolling shutters and earning Rs.3,120/-per month. The Tribunal has fixed monthly income of the appellant at Rs.3,000/-. Since Ext.A7 is not under challenge and the difference is only Rs.120/-per month, I find no reason to reject Ext.A7. Hence monthly income of the appellant at the relevant time is fixed at Rs.3,120/-. 7. Exts.A3, A4 and A6 are the documents produced to prove injuries suffered by the appellant. It is seen that he had a crush injury on the left foot which was sutured. He had other injuries including tenderness over the 4th and 5th metatarsal as well. 8. The Tribunal has, based on monthly income of the appellant at Rs.3,000/- awarded loss of earnings for one month. Learned counsel submits that even after discharge from the hospital the appellant had to continue treatment. Having regard to the nature and site of injuries suffered it is possible that the appellant was not able to work for three months. 8. The Tribunal has, based on monthly income of the appellant at Rs.3,000/- awarded loss of earnings for one month. Learned counsel submits that even after discharge from the hospital the appellant had to continue treatment. Having regard to the nature and site of injuries suffered it is possible that the appellant was not able to work for three months. Iin fact the Tribunal also found that loss of earnings is payable for three months but awarded only for one month only. For three months loss of earnings comes to Rs.9,360/-. Less Rs.3,000/-already awarded, additional compensation payable on that count comes to Rs.6,360/-. 9. For transportation charges only Rs.500/-is awarded. Medical expenses awarded as per the bills is only Rs.739/-. Having regard to the nature of injuries the appellant suffered and period of treatment, it is likely that the appellant had to visit the hospital many times and spent for treatment. Hence Rs.1500/- is allowed on that count. 10. Compensation awarded for pain and suffering is only Rs.4,000/-which appears to be on the lower side. Having regard to the site and nature of the injuries and the pain and suffering undergone a further sum of Rs.3,000/-is allowed on that count. 11. Compensation awarded for loss of amenities of life is only Rs.3,000/- which also requires modification. In the light of the circumstances above stated, a further sum of Rs.2,000/-is payable on that count. Thus additional compensation payable to the appellant comes to Rs.12,860/- with interest @9% per annum from the date of application till realisaton. 12. The Tribunal has exonerated the third respondent on the premise that Ext.A9, policy of insurance is an Act only policy and the appellant was a pillion rider. The Tribunal failed to note that the claim was against the owner, driver and insurer of the autorikshaw and that Ext.A9, policy related to that autorikshaw. Therefore, that the appellant was riding on the pillion of the motor cycle is of no consequence so far as liability of the third respondent is concerned. In view of Ext.A9, the third respondent is liable to indemnify the second respondent who is the owner of the autorikshaw. Therefore, that the appellant was riding on the pillion of the motor cycle is of no consequence so far as liability of the third respondent is concerned. In view of Ext.A9, the third respondent is liable to indemnify the second respondent who is the owner of the autorikshaw. Resultantly this appeal is allowed in part as under: (i) In modification of the award dated 30.06.2011 in O.P(M.V).No.2404 of 2003 of the Motor Accident Claims Tribunal, Ernakulam the appellant is allowed to recover a further sum of Rs.12,860/-(Rupees Twelve Thousand Eight Hundred and Sixty Only) with interest @9% per annum from the date of application till recovery from the respondents. (ii) The third respondent being the insurer of the autorikshaw is found liable to deposit the compensation awarded by the Tribunal as well as the additional compensation this Court has awarded. (iii) The third respondent is directed to deposit the amount in the Tribunal within two (2) months from this day. (iv) Direction regarding withdrawal/deposit of the amount shall be issued by the Tribunal. (iii) Parties are directed to suffer their cost in the appeal.