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2023 Supreme(Online)(KER) 20405
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
MACA NO. 2307 OF 2012
AGAINST THE ORDER/JUDGMENTOPMV 1328/2004 OF SPECIAL C SPE/CBI-I&3
ADDITIONAL DISTRICT COURT / I ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL ,EKM
APPELLANT/PETITIONER:
ANOOP JAMES
AGED 34 YEARS
S/O. V.V. JAMES KUNJU RESIDING AT VADAPARAMBU HOSUE,
VII/316, KARUVELY ROAD, KUNDANNOOR MARADU.P.O.,
ERNAKULAM.
BY ADVS.
SRI.ANIL S.RAJ
SMT.K.N.RAJANI
SRI.RADHIKA RAJASEKHARAN P.
RESPONDENTS/RESPONDENTS 1 TO 3:
1
K.R. SURESHKUMAR
IW-387/2, A.V. ROAD, KALASIPALAYAM BANGALORE-2.
2
SIBI SEBASTIAN
S/O. ULAHANNAN DEVASSIA KORATTIPARAMBIL HOSUE,
KODIKULAM.P.O., THODUPUZHA PIN-685582.
3
NATIONAL INSURANCE COMPANY LTD.
DIVISIONAL OFFICE, ERNAKULAM-16.
BY ADV SRI.P.G.GANAPPAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
The court held that the Tribunal was justified in not accepting the appellant's income as claimed by him as there was no documentary evidence in original and attested by the Embassy to prove the income. The court also held that the Tribunal erred in not awarding adequate compensation under the heads of pain and sufferings and loss of amenities and enjoyment of life.
Headnote:
MOTOR ACCIDENT - ENHANCEMENT OF COMPENSATION - PAIN AND SUFFERINGS - LOSS OF AMENITIES AND ENJOYMENT OF LIFE - INCOME - NO INCOME PROOF - NOTIONAL INCOME
Fact of the Case:
The appellant was a passenger in a car that was hit by a bus. The appellant sustained serious injuries. The appellant filed a claim for compensation under Section 166 of the Motor Vehicles Act. The Tribunal awarded the appellant compensation of Rs. 1,64,703/- with interest at the rate of 7.5% from the date of petition. The appellant filed an appeal, contending that the Tribunal erred in not accepting the appellant's income as claimed by him and in not awarding adequate compensation under the heads of pain and sufferings and loss of amenities and enjoyment of life.
Finding of the Court:
The court held that the Tribunal was justified in not accepting the appellant's income as claimed by him as there was no documentary evidence in original and attested by the Embassy to prove the income. The court also held that the Tribunal erred in not awarding adequate compensation under the heads of pain and sufferings and loss of amenities and enjoyment of life. The court enhanced the compensation awarded by the Tribunal by Rs. 20,000/- with interest at the rate of 7.5% per annum from the date of petition.
Issues: 1. Whether the Tribunal erred in not accepting the appellant's income as claimed by him?2. Whether the Tribunal erred in not awarding adequate compensation under the heads of pain and sufferings and loss of amenities and enjoyment of life?
Ratio Decidendi: 1. The Tribunal was justified in not accepting the appellant's income as claimed by him as there was no documentary evidence in original and attested by the Embassy to prove the income.2. The Tribunal erred in not awarding adequate compensation under the heads of pain and sufferings and loss of amenities and enjoyment of life.
Final Decision: The court allowed the appeal and enhanced the compensation awarded by the Tribunal by Rs. 20,000/- with interest at the rate of 7.5% per annum from the date of petition.
JUDGMENT
Dated this the 06th day of January, 2023 The appellant is the petitioner in O.P (MV)No.
1328/2004, on the files of the Motor Accidents Claims Tribunal, Ernakulam. The case was filed under Section
166 of the Motor Vehicles Act.
2. On 13-11-2003, at about 11.30 pm, the petitioner was the passenger in a car with registration No. KL- 7/ J2002 driven by one Thomas Kurian who was a claimant in the O.P (MV) No. 1180/2004 and when it reached in the place of occurance the offending bus with registration No. KL 01/ D 1500 owned, driven and insured with respondents 1 to 3 came from the opposite direction and hit against the car. The petitioner sustained serious injuries. The accident happened solely due to the negligence on the part of the 2nd respondent who was the driver of the offending vehicle.
3. The 3rd respondent filed a written statement. It was admitted that the stage carriage No. KL-1/D 1500 was insured with the respondent under “B” policy from 01-12-2002 to 30-11-2003. It was also submitted that the stage carriage was plying in Tamil Nadu outside the Kerala state the relevant time without a valid permit. Hence, there is no liability to indemnify the 1st respondent, owner of the stage carriage, as there is violation of permit conditions.
4. The Tribunal tried this O.P (MV) along with two other OP(MV)s and relying on Exts. A19 to A55 and the oral evidence of PW3, awarded a compensation of Rs. 1, 64, 703/- (rupees One Lakh Sixty Four Thousand Seven Hundred and Three only) with the interest at the rate 7.5% from the date of petition. This aggrieved by the award on various heads, this appeal is filed.
5. Main contention raised by the counsel for the appellant is that the appellant was aged 26 years and was the 2nd officer in Merchant Navy. According to him he had monthly income of Rs. 1,10,250/- (rupees One Lakh Ten Thousand Two Hundred and Fifty only). To prove that he had income as stated above, the appellant had produced photocopies of letter of assignment marked as Ext.P29 and seaman’s employment contract marked as Ext.A30. Exts. A43 and 44 are also photocopies of wages for the months of November and December 2002. The Tribunal did not accept the documents produced as they were photocopies of the original. Therefore, the Tribunal took the notional income as Rs. 20,000/- (rupees Twenty Thousand only). Since there was no documentary evidence in original and attested by the Embassy to prove the income, the tribunal was justified in not accepting the income as claimed by the appellant and fixed the notional income as Rs. 20,000/-(rupees Twenty Thousand only). Hence, the income fixed is justified.
6. As far as pain and sufferings is concerned though the appellant claimed Rs. 25,000/-(rupees Twenty Five Thousand only), the Tribunal has awarded only
15,000/- (rupees Fifteen Thousand only). On going through the injuries sustained, it seems that he has sustained multiple abrasion right arm mid third tenderness, abnormal mobility and crepitations at the junction of mid third and lower third fracture humerus right at the injunction of mid third and lower third. Swelling and tenderness mid thoracic region. X-ray T. L. spine, fracture ribs 8.9.10.11 ribs right side, x-ray - Antr. Compressed fracture T 9. x-ray right humerus fracture shaft humerus, comminuted fracture at the junction of mid third – lower third. On going through the injuries sustained, the amount of compensation under the head of pain and sufferings is on the lower side and therefore, it is enhanced by a further sum of Rs. 10,000/-
(rupees Ten Thousand only)
7. As far as the loss of amenities and enjoyment of life are concerned, though the claim was for Rs. 25,000/-(rupees Twenty Five Thousand only), the Tribunal has awarded only Rs. 12,000/-. The petitioner had compressed fracture of T 9, humerus fracture shaft humerus, comminuted fracture and swelling and tenderness mid thoracic region. Taking note of these aspects, compensation for the loss of amenities and enjoyment in l
