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2025 DIGILAW 1240 (KER)

Ratheesh S/o Chakkan v. Sreenivasan S/o Vijayan

2025-05-19

SHOBA ANNAMMA EAPEN

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JUDGMENT : 1. This appeal has been filed by the claimant in OP (MV) No.1028 of 2009 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents herein were the respondents before the tribunal. 2. The case of the appellant/claimant is that on 13.03.2009, while he was riding a motorcycle bearing Reg.No.KL-52-1411 from Mala to Koottanad, another motorcycle bearing Reg.No.KL-52-4451 ridden by the first respondent in a rash and negligent manner, hit against the motorcycle ridden by the claimant, whereby he sustained serious injuries. He approached the tribunal claiming a total compensation of Rs. 4,00,000/-. 3. The first respondent appeared before the tribunal. The second respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, Exts.A1 to A15 and Ext.X1 were marked on the side of the appellant/claimant. Exts.B1 to B4 were marked and RW1 was examined on the side of the respondents. The tribunal, after analysing the pleadings and materials on record, assessed a sum of Rs. 4,25,469/- as compensation under different heads. However, finding that the accident took place on account of the negligence on the part of the riders of both vehicles, the claimant was awarded only 50% of the total compensation, i.e., Rs. 2,12,750/- with interest at the rate of 9% per annum from the date of filing the petition till realization. The second respondent, being the insurer, was held liable to pay the compensation with right of recovery against the first respondent/owner of the offending vehicle. Dissatisfied with the quantum of compensation awarded by the tribunal and also, challenging the finding of 50% contributory negligence on the part of the claimant in the occurrence of the accident, the claimant has come up in appeal. 4. I have heard the learned counsel for the appellant, the learned counsel for the first respondent and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellant submits that the tribunal went wrong in attributing 50% negligence on the part of the appellant. Per contra, the learned Standing Counsel for the respondent insurer submits that the appellant did not wear a helmet at the time of the accident, and most of the serious injuries were caused by not wearing a helmet. The learned counsel for the appellant submits that the tribunal went wrong in attributing 50% negligence on the part of the appellant. Per contra, the learned Standing Counsel for the respondent insurer submits that the appellant did not wear a helmet at the time of the accident, and most of the serious injuries were caused by not wearing a helmet. On a perusal of the impugned award, it is seen that most of the injuries were head injuries and had the appellant worn a helmet, the serious head injuries could have been avoided. The tribunal has rightly found that there was contributory negligence on the part of the claimant/ appellant. Therefore, I decline to interfere with the finding of the tribunal attributing 50% negligence to the claimant. 6. The learned counsel for the appellant claims enhancement under the following heads: 6.1. Notional income - The learned counsel for the appellant submits that the appellant was a bike mechanic and was earning Rs. 7,000/- per month, however, the tribunal has fixed his notional monthly income only at Rs. 3,000/-. Admittedly, no document was produced by the appellant to prove income. Even going by the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236 , the notional monthly income of the appellant ought to have been fixed at Rs. 7,000/-. Accordingly, following the judgment in Ramachandrappa (supra), I deem it appropriate to refix the notional monthly income of the appellant at Rs. 7,000/-. 6.2. Loss of earnings - Since the monthly income of the appellant is refixed at Rs. 7,000/- compensation towards loss of earnings for a period of six months has to be recalculated, which would come to Rs. 42,000/-. Thus, the appellant will be entitled to get an additional compensation of Rs. 24,000/- towards loss of earnings after deducting the compensation of Rs. 18,000/- awarded by the tribunal. 6.3. Pain and suffering - The learned counsel for the appellant submits that though the appellant claimed Rs. 50,000/- towards pain and suffering, the tribunal awarded only Rs. 25,000/-. Considering the injuries sustained by the appellant and the sufferings that he had undergone, I am inclined to grant an amount of Rs. 50,000/- as total compensation towards pain and suffering. Thus, the appellant will be entitled to get an additional amount of Rs. 25,000/- as compensation towards pain and suffering. 6.4. 25,000/-. Considering the injuries sustained by the appellant and the sufferings that he had undergone, I am inclined to grant an amount of Rs. 50,000/- as total compensation towards pain and suffering. Thus, the appellant will be entitled to get an additional amount of Rs. 25,000/- as compensation towards pain and suffering. 6.4. Loss of earning power/permanent disability - On a perusal of the impugned award, it is seen that the tribunal awarded compensation for both loss of earning power and permanent disability, which appears to be a duplication of compensation. Hence, I am inclined to delete the compensation awarded towards loss of earning power. Accordingly, the compensation of Rs. 1,05,264/- awarded towards loss of earning power is deleted. 6.4.1. Since the notional monthly income of the appellant is refixed at Rs. 7,000/-, compensation towards permanent disability has to be recalculated. Thus, following the judgments in National Insurance Co. Ltd. v. Pranay Sethi , 2017 (4) KLT 662 (SC) and Sarla Verma v. Delhi Transport Corporation , 2010 (2) KLT 802 (SC) the appellant will be entitled to get a total compensation of Rs. 2,45,616/- (7000 x 12 x 17 x 17.2%) towards permanent disability. Hence, there will be an additional amount of Rs. 1,40,352/- under the head of permanent disability. 6.5. Bystander expenses - The learned counsel for the appellant submits that the appellant was awarded compensation towards bystander’s expenses only @ Rs. 200/- per day for 37 days, which is on the lower side. Considering the fact that the accident was in the year 2009, I deem it appropriate to award compensation towards bystander’s expenses @ Rs. 300/- per day. Thus, he will be entitled to get a total compensation of Rs. 11,100/- (300 x 37) towards bystander expenses. Since the tribunal already awarded an amount of Rs. 7,400/- there will be an additional compensation of Rs. 3,700/- under this head. 6.6. Transportation expenses - The learned counsel for the appellant submits that the appellant, a resident of Ottapalam Taluk, Palakkad District, received treatment at Amala Hospital, Thrissur. Due to the serious head injuries, he had to do multiple hospital visits. The tribunal awarded only a compensation of Rs. 5,000/-, which appears to be on the lower side. The learned Standing Counsel for the respondent insurer and the learned counsel for the first respondent objected to the enhancement of compensation towards transportation of expenses. Due to the serious head injuries, he had to do multiple hospital visits. The tribunal awarded only a compensation of Rs. 5,000/-, which appears to be on the lower side. The learned Standing Counsel for the respondent insurer and the learned counsel for the first respondent objected to the enhancement of compensation towards transportation of expenses. However, considering the fact that the appellant was a resident of Ottapalam and he was treated in a hospital at Thrissur and had to do multiple visits, I deem it appropriate to award a total compensation of Rs. 8,000/- under this head. Hence, the appellant will be entitled to get an additional compensation of Rs. 3,000/- towards transportation expenses. 6.7. Extra nourishment - The learned counsel appellant submits that though the appellant claimed a compensation of Rs. 25,000/- towards extra nourishment, the tribunal awarded only Rs. 7,400/-. The appellant was only 34 years at the time of accident and he had to undergo inpatient treatment for 37 days. Considering the above, I find that a compensation of Rs. 10,000/- will be just and reasonable under this head. Thus, the appellant will be entitled to get an additional compensation of Rs. 2,600/- towards extra nourishment. 7. Though the appellant claimed enhancement of compensation under other heads as well, on a perusal of the records available and the impugned award, I am not inclined to interfere with the same since it appears to be just and reasonable. Thus, the impugned award of the tribunal is modified as follows: S. No. Head of Claim Amount claimed (in) Rs. Amount awarded by the tribunal (in) Rs. Modified in appeal (in) Rs. Total compensation (in) Rs. 1. Loss of earnings 45000 18000 24000 42000 2. Medical & miscellaneous expenses 150000 151641 151641 3. Bystanders expenses 15000 7400 3700 11100 4. Transportation expenses 10000 5000 3000 8000 5. Extra nourishment 25000 7400 2600 10000 6. Damage to clothing 2000 500 500 7. Pain and suffering 50000 25000 25000 50000 8. Loss of earning power 40000 105264 -105264 deleted 9. Permanent disability 40000 105264 140352 245616 Total 400000 425469 rounded off to 425500 93388 518857 50% of compensation 212750 8. Accordingly, the appeal is allowed in part and the appellant is awarded an additional compensation of Rs. Pain and suffering 50000 25000 25000 50000 8. Loss of earning power 40000 105264 -105264 deleted 9. Permanent disability 40000 105264 140352 245616 Total 400000 425469 rounded off to 425500 93388 518857 50% of compensation 212750 8. Accordingly, the appeal is allowed in part and the appellant is awarded an additional compensation of Rs. 93,388/- (Rupees ninety three thousand three hundred and eighty eight only) over and above the compensation awarded by the tribunal with interest @ 9% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit 50% of the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment and recover the same from the first respondent. The appellant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the amount shall be disbursed to the appellant at the earliest in accordance with law.