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2025 DIGILAW 1371 (KER)

Joshy S/o. Varghese v. Thomas V. T.

2025-05-22

SHOBA ANNAMMA EAPEN

body2025
JUDGMENT : SHOBA ANNAMMA EAPEN, J. Since these two appeals arise from the very same award dated 15.05.2017 in O.P(MV) No.742 of 2013 filed by the appellant/claimant on the file of the Motor Accidents Claims Tribunal, Tirur, the appeals are heard together and being disposed of by this common judgment. M.A.C.A.No.2937 of 2018 is filed by the appellant/claimant seeking enhancement of compensation granted by the Tribunal, whereas M.A.C.A.No.4078 of 2017 is filed by the Insurance Company challenging the finding of negligence on the part of the first respondent/driver of the mini bus (second respondent in the appeal) and also challenges quantum of compensation awarded by the Tribunal. The parties are hereinafter referred to as arrayed in the O.P.(MV). 2. According to the appellant/claimant, on 20.04.2013 at about 2.00 am, while he was travelling in a minibus bearing registration No.KL-9-Q-0281 along Kuttipuram – Edappal State Highway and when the vehicle reached at Kandanakam, the first respondent, the driver of the minibus negligently negotiated another vehicle and lost control over it and hit against another bus bearing registration No.KA-01-AB-4159 driven by the fourth respondent. Due to the accident, the appellant sustained serious injuries. The appellant approached the Tribunal claiming a total compensation of Rs. 15,90,000/-, which is limited to Rs. 10,00,000/-. 3. The first and fourth respondents are the drivers of the mini bus and the offending vehicle, second and fifth respondents are the owners of the mini bus and the offending vehicle, the third and sixth respondents are the insurer of the mini bus and the offending vehicle respectively, before the Tribunal. Though notice was served on the respondents, the fourth and the fifth respondents were absent and were set ex parte. The third respondent - insurer of the mini bus filed a written statement, denying the negligence attributed on the part of the first respondent. They contended that neither the alleged accident is reported to the respondent nor vehicular documents, driving licence and badge were produced for due verification by the first and second respondents. The sixth respondent filed a written statement, admitting the insurance policy of the offending vehicle but disputing the negligence attributed on the part of the first respondent. Exts.A1 to A10 series were marked on the side of the appellant. Exts.B1 and B2 were marked on the side of the respondents. PW1 and RW1 were examined. Ext.C1 was marked as court exhibit. Exts.A1 to A10 series were marked on the side of the appellant. Exts.B1 and B2 were marked on the side of the respondents. PW1 and RW1 were examined. Ext.C1 was marked as court exhibit. The Tribunal, after analysing the pleadings and materials on record, found that the negligence was on the part of the driver of the mini bus and awarded a sum of Rs. 4,75,251/- rounded to Rs. 4,75,300/- as compensation under different heads with interest @ 8% per annum from the date of petition till realization with proportionate costs from respondent-insurer. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant has come up in appeal. Challenging the finding of negligence on the part of the driver of the mini bus the insurer has come up in appeal. 4. Heard the learned counsel for the claimant and the learned Standing Counsel for both the insurance companies. 5. The learned standing counsel appearing for the appellant insurer in MACA No.4078/2017 argued that though the charge was against the driver of the mini bus insured with the appellant insurer, in OP (MV) nos.774, 775, 782, 803 and 821 of 2013, the Tribunal relying on the scene mahazar and the deposition of the investigating officer found that the accident was not due to the negligence of the driver of the mini bus and those cases were dismissed. In the present case, the Tribunal has allowed the claim petition finding negligence on the part of the driver of the mini bus and awarded compensation, which is not proper and legal. The learned counsel appearing for the claimant submitted that the Tribunal has allowed the claim petition on the basis of evidence adduced in this case. The investigating officer was examined as RW1 in this case and he had deposed that the negligence was on the part of the driver of the mini bus and the charge framed against the mini bus was correct. The counsel further argued that the Tribunal has rightly found negligence on the part of the driver of the mini bus and granted compensation. The standing counsel appearing for respondent No.6 in the claim petition submitted that the Tribunal has not found negligence on the part of the driver of the bus and there is no charge sheet drawn against the driver of the bus bearing registration No. KA-01-AB-4159. The standing counsel appearing for respondent No.6 in the claim petition submitted that the Tribunal has not found negligence on the part of the driver of the bus and there is no charge sheet drawn against the driver of the bus bearing registration No. KA-01-AB-4159. I have considered the rival contentions of both parties. A perusal of Ext.B1 reveals that the claim petitions were dismissed by the Tribunal in OP (MV) nos.774, 775, 782, 803 and 821 of 2013. The Tribunal while allowing the present claim petition has clearly stated that the impugned award was passed based on the evidence adduced in the present case. The claimant was examined as PW1 and the investigating officer was examined as RW1. They have clearly deposed that the accident occurred due to the negligence on the part of the driver of the mini bus. RW1 further deposed that only after satisfying the negligence of the driver of the mini bus, a charge sheet was drawn against him. it was deposed thus: Though the investigating officer was cross examined nothing was brought out in evidence. It is true that the investigating officer’s evidence in both these cases contain contradictions. However, PW1 during examination has deposed that there was negligence on the part of both the drivers of the vehicles for causing the accident. When RW1 – the investigating officer was examined in the connected cases, he stated that the Mini bus driven by the second respondent was proceeding through the correct side and the accident happened at the extreme southern side of the road. On perusal of Ext.B1 the award in the connected cases, he has not stated that there was no negligence on the part of the driver of the mini bus. But when he was examined in the present case, he stated that the other vehicle was coming from Kozhikode to Thrissur and it was a head on collision. Considering the documents produced in this case it is found that though charge sheet was drawn against the driver of the mini bus, the accident was a head on collision between a mini bus and another bus and both the drivers were negligent and thus the accident occurred. Considering the documents produced in this case it is found that though charge sheet was drawn against the driver of the mini bus, the accident was a head on collision between a mini bus and another bus and both the drivers were negligent and thus the accident occurred. Accordingly, I find that there is contributory negligence of 50% each on the part of both the drivers and since both the vehicles had valid insurance at the time of accident, both the insurance companies are liable to indemnify the owner of the vehicles and are liable to pay compensation to the claimant. 6. The learned counsels for both parties challenged the award mainly under the following heads:- I. Notional Income The learned counsel for the appellant submits that though the appellant had claimed an amount of Rs. 15,000/- as the monthly income, who was a businessman by profession, the Tribunal had taken only an amount of Rs. 5,000/- per month. Since no evidence has been adduced to prove the income of the appellant, on the basis of the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 2 2018 36], the notional monthly income ought to have been taken at Rs. 9,000/-. Hence, I am inclined to re-fix the notional monthly income of the appellant at Rs. 9,000/- (Rupees Nine Thousand Only). II. Loss of earnings Since the notional monthly income has been re-fixed at Rs. 9,000/-, the total compensation payable under the said head would be Rs. 54,000/- (9,000 x 6). The Tribunal had already awarded an amount of Rs. 30,000/- under the said head. Thus there will be an additional enhancement of Rs. 24,000/- (Rupees Twenty Four Thousand Only) under the said head. III. Pain and suffering: The learned counsel for the appellant submitted that though an amount of Rs. 1,00,000/- was claimed towards the head pain and sufferings, only an amount of Rs. 25,000/- was awarded by the Tribunal. Considering the age and nature of injuries sustained by the appellant, I find it appropriate to enhance the total compensation payable under the afore head at Rs. 40,000/-. Thus there will be an additional enhancement of Rs. 15,000/- (Rupees Fifteen Thousand Only) under the afore head. IV. Loss of amenities and enjoyment in life Though the appellant had claimed an amount of Rs. 75,000/-towards the afore head, the Tribunal had granted only Rs. 10,000/-. 40,000/-. Thus there will be an additional enhancement of Rs. 15,000/- (Rupees Fifteen Thousand Only) under the afore head. IV. Loss of amenities and enjoyment in life Though the appellant had claimed an amount of Rs. 75,000/-towards the afore head, the Tribunal had granted only Rs. 10,000/-. Considering the age and the nature of injuries sustained by the appellant, I find that a total compensation of Rs. 30,000/- under the said head would be just and reasonable. Thus, there will be an additional amount of Rs. 20,000/- (Rupees Twenty Thousand Only) under the afore head. V. Compensation for continuing or permanent disability Since the notional monthly income has been re-fixed at Rs. 9,000/-, the total compensation payable under the said head would be Rs. 3,62,880/- (9,000 x 12 x 16 x 21/100). The Tribunal had already awarded an amount of Rs. 2,01,600/- under the said head. Thus there will be an additional enhancement of Rs. 1,61,280/- (Rupees One Lakh Sixty One Thousand Two Hundred and Eighty Only) under the afore head. VI. Bystander expenses The learned counsel for the appellant submits that though an amount of Rs. 25,000/- was claimed, the Tribunal has awarded only an amount of Rs. 5,000/- towards the afore head. Considering the fact that the accident occurred in the year 2013, I find that for an inpatient treatment for 19 days, an amount of Rs. 350/- per day can be granted. This would come to Rs. 6,650/-. Thus there will be an additional enhancement of Rs. 1,650/- (Rupees One thousand Six Hundred and Fifty Only) under the said head. VII. Loss of earning power On a perusal of the award, it is seen that the Tribunal had awarded an amount of Rs. 5,000/- towards loss of earning power, which is a duplication of the compensation awarded by the Tribunal under the head loss of earning. Accordingly, I delete an amount of Rs. 5,000/- paid under the head loss of earning power. 7. Though the appellant claimed enhancement of compensation under other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the Tribunal under other heads since it appears to be just and reasonable. 8. Thus, the impugned award of the Tribunal is modified as follows: Sl. 7. Though the appellant claimed enhancement of compensation under other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the Tribunal under other heads since it appears to be just and reasonable. 8. Thus, the impugned award of the Tribunal is modified as follows: Sl. No. Head of Claim Amount claimed (in Rs.) Amount awarded by the tribunal (in Rs.) Amount modified in appeal (in Rs.) Total compensation 1 Loss of earning 1,80,000 30,000 24,000 54,000 2 Transport to hospital 50,000 4,000 (not modified) 4,000 3 Extra nourishment 25,000 2,000 (not modified) 2,000 4 Damage to clothing and articles 10,000 500 (not modified) 500 5 Others: Treatment expenses Bystander expenses Future treatment 3,50,000 25,000 1,00,000 1,82,151 5,000 5,000 (not modified) 1,82,151 1,650 6,650 (not modified) 5,000 6 Compensation for pain and suffering 1,00,000 25,000 15,000 40,000 7 Compensation for continuing or permanent disability 3,00,000 2,01,600 1,61,280 3,62,880 8 Compensation for loss of earning power 3,00,000 5,000 (-5000) Deleted 9 Compensation for amenities & enjoyment of life 75,000 10,000 20,000 30,000 10 Compensation for injury itself and disfiguration 75,000 5,000 (not modified) 5,000 Total amount (Claim limited to) 15,90,000 10,00,000 4,75,251 (rounded to 4,75,300) 2,16,930 6,92,181 (rounded to 6,92,230 Accordingly, the appeals, MACA No.2937 of 2018 filed by the appellant and MACA No.4078 of 2017 filed by the insurance company is allowed in part. The appellant/claimant is entitled for an additional compensation of Rs. 2,16,930/- (Rupees Two Lakh Sixteen Thousand Nine Hundred and Thirty only) over and above the compensation awarded by the Tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The third and sixth respondents shall deposit Rs. 1,08,465/- (50% of Rs. 2,16,930) each, together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The appellant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the third and sixth respondents 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. 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 entire amount shall be disbursed to the appellant at the earliest in accordance with law. However, it is made clear that the enhanced compensation will not carry interest for the period of delay of 384 days in filing the appeal in M.A.No.2937 of 2018.