IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1886 of 2008()
1. THE NATIONAL INSURANCE COMPANY LTD.,
... Petitioner
Vs
1. BIJU E.K., S/O. KELAPPAN NAMBIAR,
... Respondent
2. DHANANJAYAN, S/O. ANDY, MANIKKOTH HOUSE,
For Petitioner :SRI.RAJAN P.KALIYATH
For Respondent :SRI.P.M.HABEEB
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :29/10/2010
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A.NO.1886 OF 2008
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Dated this the 29th day of October, 2010.
J U D G M E N T
This is an appeal preferred against the award of the
Claims Tribunal, Vadakara in OP(MV)No.719/2004. It is the
case of the claimant that while he was walking along the road,
an auto rickshaw driven by the first respondent came and
hit on him resulting in injuries to him.
2. The insurance company would contend that he was
not a pedestrian but a gratuitous passenger in a goods
auto rickshaw and therefore the insurance company shall
not be made liable. It is also contended by the insurance
company that the compensation awarded under different
heads are exorbitant and it requires interference. The
Tribunal has awarded a sum of Rs.89,852/= with 6%
interest.
3. Heard the learned counsel for both sides. Let me
first consider about the case of the insurance company that
the claimant was a gratuitous passenger in an auto rickshaw.
It has to be stated that the police has charge sheeted the
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M.A.C.A.NO.1886 OF 2008
driver of the auto rickshaw for hitting the claimant as a
pedestrian. On receipt of the charge memo, the accused
appeared and pleaded guilty. The insurance company would
contend that the certification in the wound certificate would
reveal that he was not a pedestrian. It has to be stated that
the police after due investigation had described the
accident as one hitting on a pedestrian. The first
respondent who had entered appearance and filed a
written statement also would contend that the accident
took place when the claimant abruptly crossed the road.
The sum and substance of the materials would indicate that
the accident caused is to a pedestrian and therefore the
contention of the insurance company cannot be accepted.
4. Now turning to the quantum. A perusal of the wound
certificate would reveal that the claimant had sustained
fracture of both bones of right forearm, radial head
dislocation and nerve palsy. He was treated in the Medical
College Hospital from 22.12.2003 to 4.1.2004 and again from
1.3.2004 to 6.3.2004 in District Co-operative Hospital and
again from 28.3.2006 to 30.3.2006. He had hospitalisation
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of about 202 days. The claimant has produced the bills for
Rs.33,571/=. Medical Board assessed the disability at 4%.
The income is only taken at Rs.2,000/= which appears to be
very reasonable. But applying the multiplier in Sarla
Verma v. Delhi Transport Corporation (2009 ACJ 1298),
the multiplier should be 17 and not 18 and therefore there
will be a reduction of Rs.960/= which I round as Rs.1,000/=
on that head. For pain and sufferings also the compensation
awarded is little excessive and I reduce it by Rs.3,000/= and
since disability certificate as such has been admitted, I
reduce the loss of amenities compensation also by Rs.1,000/=
thereby reducing it to Rs.5,000/=.
5. The learned counsel for the appellant would contend
that the amount awarded is extremely reasonable. But as
stated by me earlier, under the provisions of the Motor
Vehicles Act what is intended to be given is a just and
reasonable compensation. The court cannot be lavish or
miserly but reasonable. When overlapping occurs that has
to be duly balanced and reduce it under one head or other.
It is applying these principles, I have reduced Rs.5,000/=
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from the total compensation awarded.
6. In the result, the MACA is disposed of by passing a
revised award as follows:
The compensation amount is fixed at Rs.84,852/= with
6% interest from the date of petition till realisation and
retained the other portion of the operative portion of the
award of the Tribunal. The insurance company is directed
to deposit the said amount within a period of 60 days from
the date of receipt of a copy of this judgment. If any amount
is already deposited, balance alone need be deposited.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
…………………………………….
A.S.NO.389 OF 2001
………………………………………
8th day of October, 2010.
J U D G M E N T