Abdul Aneesh v. Siju Mon, Augusty Baby & The New India Assurance Company Limited

**MACA.No.2088 OF 2015** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **MACA.No.2088 OF 2015(E)** **AGAINST THE AWARD IN OP(MV) 682/2011 OF the ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL -II, MANJERI** ## **APPELLANT/PETITIONR:** **ABDUL ANEESH AGED 32 YEARS S/O. UNNIHYDER, KANHIRALA HOUSE, MAMPAD P.O, NILAMBUR TALUK, MALAPPURAM.** ## **BY ADV. SRI.H.PRAVEEN (KOTTARAKARA)** ## **RESPONDENTS/RESPONDENTSS:** |**1**|**SIJU MON**| |---|---| ||**S/O. BABY C.A, CHALAPPATTU HOUSE, PULLIPPADADAM,**| ||**MAMPAD P.O., MALAPPURAM DISTRICT – 676 542.**| |**2**|**AUGUSTY BABY**| ||**S/O. VARGHESE AUGUSTY, CHALAPPATTU HOUSE,**| ||**PULLIPADADAM, MAMPAD P.O., MALAPPURAM DISTRICT –**| ||**676 542.**| |**3**|**THE NEW INDIA ASSURANCE COMPANY LIMITED**| ||**VARIKODAN BUILDING,IST FLOOR, NILAMBUR ROAD,**| ||**MANJERI, MALAPPURAM DISTRICT- 676 121.**| ||**R3 BY ADV. SMT.P.LISSY JOSE.**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2088 OF 2015** **2** ## **JUDGMENT** ## **Dated this the 5th day of March 2021** The appellant was the petitioner in O.P.(MV) No.682/2011 on the file of the Additional Motor Accident Claims Tribunal - II, Manjeri. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The concise case of the petitioner in the claim petition, relevant for the determination of the appeal, is that: on 22.10.2010 while the petitioner was standing on the Nilambur – Manjeri road, a car bearing Reg. No.KL 60-2859 (offending vehicle) driven by the 1st respondent in a rash and negligent manner, hit the petitioner. The petitioner sustained serious injuries and was hospitalised for a period of 43 days in Alshifa Hospital, Perinthalmanna. The petitioner was running a cool bar at Nilambur Bus station. The petitioner was getting a monthly **MACA.No.2088 OF 2015** **3** income of Rs.12,000/-. The petitioner has sustained permanent disability. The 2[nd] respondent is the owner of the offending vehicle and the 3[rd] respondent is the insurer. Hence, the respondents are jointly and severally liable to compensate the petitioner. The petitioner is entitled for a compensation, which he quantified at Rs.5,00,000/-. 3. The respondents 1 and 2 were absent and were set ex parte. 4. The 3[rd] respondent – Insurance Company – filed a written statement, inter alia, refuting the allegations in the claim petition. Nevertheless, the 3[rd] respondent admitted that the offending vehicle was having a valid insurance policy issued by the 3[rd] respondent. The 3[rd] respondent also contended that the amount sought for under the various heads of claim in the claim petition were excessive and exorbitant. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. 5. The Doctor who treated the petitioner was examined as PW1 and Exts.A1 to A7 were **MACA.No.2088 OF 2015** **4** marked in evidence. Ext.X1 disability certificate was marked as a court exhibit. The respondents did not adduce any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by awarding the petitioner a compensation of Rs.5,41,889/- with interest at the rate of 9% per annum from the date of petition till the date of realisation and proportionate costs. The 3[rd] respondent was directed to deposit the compensation amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent/Insurance Company. **MACA.No.2088 OF 2015** **5** 9. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable? 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. Ext.A2 final report filed by the Police proves that the accident occurred on 22.10.2010 due to the rash and negligent driving of the offending vehicle by the 1[st] respondent, who hit the petitioner. Ext.A5 discharge summary shows that the petitioner was hospitalised for a period of 43 days in the **MACA.No.2088 OF 2015** **6** Alshifa Hospital, Perinthalmanna. Ext.A7 series medical bills proves that the petitioner had spent a considerable amount towards his medical expenses. Ext.A4 series medical reports also prove the injuries sustained by the petitioner. Therefore, it is substantiated beyond any doubt that it was the the 1[st] respondent who caused the accident and that the offending vehicle was insured with the 3[rd] respondent. Hence the 3[rd] respondent is liable to indemnify the respondents 1 and 2 in paying the compensation. 12. The principal area of dispute in the appeal is whether the notional income fixed by the Tribunal is correct or not and also whether the petitioner is entitled for compensation for future prospects. 13. The accident occurred on 22.10.2010. The petitioner claimed that he was running a cool bar at the Nilambur Bus Station. He claimed that he was getting an income of Rs.12,000/- per month. However, the Tribunal fixed the notinal income of the **MACA.No.2088 OF 2015** **7** petitioner at Rs.4,000/- per month. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236] and in **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd** [(2014) 2 SCC 735] , the Hon'ble Supreme Court has fixed the notional income of a coolie worker in year 2004 at the rate of Rs.4,500/- per month and that of a vegetable vendor at the rate of Rs.6,500/per month in the year 2006, respectively. Recently, this Court in **Soman v. Jinesh James and others** [ILR 2020 (3) Kerala 1003] has fixed the notional income of a coolie worker in the year 2010 at Rs.7,500/- per month. ## Notional income 15. Following the parameters laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the considered opinion, especially taking into consideration the **MACA.No.2088 OF 2015** **8** fact that the accident occurred in the year 2010, that the petitioner's notional income can safely be fixed at Rs.7,500/- per month. Hence, I re-fix the notional income of the petitioner at Rs.7,500/per month. ## Loss of earnings 16. In view of the re-fixation of the notional income of the petitioner and the fact that he had loss of earnings for a period of ten months, the petitioner's loss of earnings is re-fixed at Rs.75,000/- instead of Rs.40,000/- fixed by the Tribunal. ## Bystander expenses 17. It is seen that the Tribunal had awarded only an amount of Rs.2,000/- towards bystander expenses when the petitioner was admittedly hospitalised for a period of 43 days. I am of the opinion that the petitioner is entitled for bystander expenses at the rate of Rs.200/- per **MACA.No.2088 OF 2015** **9** day, for a period of 43 days. Accordingly, I enhance the compensation for bystander expenses from Rs.2000/- to Rs.8,600/-. ## Disability certificate 18. The petitioner was subjected to a medical examination on his application, by a competent Medical Board of the Government Medical College Hospital, Kozhikode. The Medical Board after examining the petitioner came to the conclusion that the petitioner has a functional disability of 43%. Now before this Court, the petitioner has produced Exts.A8 and A9 (Annexures A1 and A2) stating that he has a functional disability of 70%. Exts.A8 and A9 certificates are of the years 2015 and 2020, i.e, after a period of five and 10 years respectively. 19. In view of the fact that it was on the request of the petitioner that he was subjected to a medical examination by a competent Medical **MACA.No.2088 OF 2015** **10** Board immediately after the accident and the Medical Board certifying the disability of the petitioner at 43% and the petitioner having accepted the report without any objection, it is too late in the day for the petitioner, at this stage, to seek for re-examination by another Medical Board. Accordingly, this Court by order dated 9.3.2021 in I.A 2/2021 had dismissed the said application. In the above circumstances, I hold that the permanent disability of the petitioner is 43% as fixed by the Medical Board in Ext.X1. 20. On a re-appreciation of the impugned award, it is seen that the Tribunal despite the law laid down by the Hon'ble Supreme Court in **Pranay Sethi (** supra) and in the most recent decision in **Pappu Deo Yadav v. Naresh Kumar and others** [AIR 2020 SC 4424] has not awarded any compensation for future prospects. **MACA.No.2088 OF 2015** **11** Loss due to disability with future prospects 21. Taking into account the fact that the petitioner was 32 years at the time of accident and his permanent disability is 43%, I am of the opinion that the petitioner who was a selfemployed person is entitled to future prospects at 40%. In such circumstances, in light of the fact that the petitioner's income has been re-fixed at Rs.7,500/- per month and that he is entitled to 40% taking into account the multiplier as 16, he is entitled for compensation under the head 'loss due to disability with future prospects at Rs.8,66,880/-, instead of Rs.1,75,000/- awarded by the Tribunal. Other heads of claim 22. With respect to the other heads of claim namely, Transport to hospital, Extra nourishment, Medical Expenses, Pain and sufferings, I find that the Tribunal has awarded **MACA.No.2088 OF 2015** **12** ## reasonable and just compensation. 23. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I hold that the petitioner is entitled for enhancement of the compensation as modified and re-calculated above and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount awarded<br>(in rupees)|Amounts modified<br>and recalculated by<br>this Court| |---|---|---|---| |1|Loss of earning|40,000/-|75,000| |2|Loss of earning (Partial)|Nil|Nil| |3|Transport to hospital|5,000|5,000| |4|Extra nourishment|5,000|5,000| |5|Damages to clothing and<br>articles|Nil|Nil| |6|Medical expenses|2,89,889|2,89,889| ||Bystander expenses|2,000|8,600| ||Expected future <br>medical<br>expenses|Nil|Nil| ||For disfigurement|Nil|Nil| |7|Compensation for Pain and<br>suffering|25,000|25,000| |8|Compensation for <br>the<br>continuing or permanent<br>disability,<br>if<br>any<br>and<br>compensation for the loss of<br>earning power|1,75,000|8,66,880| |9.|Compensation for future<br>treatment|Nil|Nil| |10.|Compensation<br>for<br>disfigurement|Nil|Nil| ||Total|Rs.5,41,889|12,75,369| **MACA.No.2088 OF 2015** **13** 24. Even though the petitioner had only claimed an amount of Rs.5,00,000/- as total compensation, it has been held by the Hon'ble Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] that there is no restriction in the Tribunal/Court awarding more compensation than what is claimed in the claim petition. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.7,33,480/- with interest at the rate of 9% per annum on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. The 3[rd] respondent shall deposit the additional compensation with interest and proportionte costs awarded in this appeal before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting the liability of the appellant/petitioner towards the balance court fee and legal benefit fund and depositing the same before the Tribunal. The **MACA.No.2088 OF 2015** **14** disbursement of compensation to the appellant/petitioner shall be done by the Tribunal, in accordance with law. **Sd/-** **C.S.DIAS** **JUDGE** ma/10/3/2021 /True copy/