A.L. JOSEPH @ OUSEPH v. Sumesh, Thomasso John & The New India Assurance Company Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 MACA NO. 965 OF 2011** **AGAINST THE AWARD IN OP(MV)NO. 553/2004 OF THE MOTOR** **ACCIDENT CLAIMS TRIBUNAL , THRISSUR** ## **APPELLANT/PETITIONER:** **A.L. JOSEPH @ OUSEPH S/O.LUKKOSE, ADATTUKUDIYIL HOUSE, MROTTICHAL P.O.,, THRISSUR.** **BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN** ## **RESPONDENTS/RESPONDENTS:** - **1 SUMESH, S/O.THOMAS, PUCHAKKATTUKARAN HOUSE, ANCHERICHIRA P.O., THRISSUR-680 006.** - **2 THOMASSO.JOHN PUCHAKKATTUKARAN HOUSE, ANCHERICHIRA P.O.,, THRISSUR-680 006.** - **3 THE NEW INDA ASSURANCE COMPANY LTD BRANCH OFFICE, THRISSUR, PIN-680 601.** **BY ADV SMT.M.HEMALATHA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No. 965 of 2011_ _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 965 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of June, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.553 of 2004 on the file of the Motor Accidents Claims, Thrissur. The The respondents in the appeal were the respondents in the claim petition. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 03.02.2004, while the appellant was riding his motorcycle bearing registration KL8/S 2946 through Ammus Junction, Thrissur, another motorcycle bearing registration No.KL8/Z 4892 (offending vehicle) ridden by the 1[st] respondent in a rash and negligent manner hit the motorcycle of the appellant. The offending vehicle was owned by the 2[nd] _MACA No. 965 of 2011_ _3_ respondent and insured with the 3[rd] respondent. The appellant sustained serious injuries and was treated at the Metropolitan Hospital, Thrissur as an in-patient for the period from 03.02.2004 to 10.02.2004. The appellant sustained fractures including an implant. He was re-admitted in the hospital on 06.09.2006 for the purpose of removal of the implant and was discharged on 09.09.2006. The appellant was an Agriculturist by profession and earning a monthly income of Rs. 10,000/-. The appellant contended that the respondents 1 to 3 were jointly and severally liable to pay compensation to him, which he quantified at Rs.3,07,500/-, but limited to Rs.3,00,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written denying the assertions in the claim petition. However, it was admitted that the offending vehicle had a valid _MACA No. 965 of 2011_ _4_ insurance policy. It was also contended that the accident occurred solely due to the negligence on the part of the appellant and that the amounts claimed under different heads were excessive. 5. The appellant produced and marked Exts.A1 to A9 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.53,500/- with interest at the rate of 8% per annum from the date of petition till the date of realization along with proportionate costs from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner/appellant is in appeal. 8. Heard the learned counsel for the appellant/petitioner and the learned counsel _MACA No. 965 of 2011_ _5_ appearing for the 3[rd] respondent-insurance company. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 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 after investigation substantiates that the accident occurred _MACA No. 965 of 2011_ _6_ solely on account of the negligence on the part of the 1[st] respondent. It is also proved that the offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Therefore, it is the 3[rd] respondent who is liable to indemnify the 2[nd] respondent for the liability that has arisen on account of the accident. 12. The claimed that he was an appellant Agriculturist by profession and that he was earning an amount of Rs.10,000/- per month. However, the appellant did not produce any document to substantiate his assertion in the claim petition. The Tribunal, for the want of materials, fixed the notional income of the appellant at Rs.2,500/- per month. 13. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie _MACA No. 965 of 2011_ _7_ ## worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 14. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decisions and considering the fact that the appellant was aged 50 years and claimed that he was an Agriculturist by profession, for the want of materials, I am of the opinion that the appellant is entitled to get his notional income fixed at Rs.4,500/- per month instead of Rs.2,500/- fixed by the Tribunal. Hence, I re-fix the appellant's notional income at Rs.4,500/per month. ## **- Bye stander expenses** 15. It is proved by Ext.A6 discharge summary and Ext.A7 disability certificate that the appellant had been admitted to hospital during the period from 03.02.2004 to 10.02.2004 for a period of 7 days. Thereafter, he was re-admitted for the purpose of _MACA No. 965 of 2011_ _8_ removing of his implant from 06.09.2006 to 09.09.2006. Therefore, it can be gathered that the appellant was incapacitated for a period of eight months. ## **Loss of earnings** 16. In view of the re-fixation of the notional income of the appellant at Rs.4,500/- and the finding that he was incapacitated for a period of eight months, I hold that the appellant is entitled for 'loss of earnings' at Rs.36,000/- instead of Rs.10,000/- fixed by the Tribunal. ## **Loss due to disability** 17. Eventhough, the appellant had claimed that he had disability of 11% as per Ext.A7 disability certificate, the appellant had not examined the Doctor who authored Ext.A7 disability certificate as laid down by the Hon'ble Supreme Court in **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)]. The appellant _MACA No. 965 of 2011_ _9_ also did not avail the benefit of getting himself examined by a duly constituted Medical Board. However, the Tribunal fixed the disability of the appellant at 5%. In view of the law laid down in **Rajkumar** (supra) and the fixation of the disability of the appellant at 5% by the Tribunal, I confirm the finding of the Tribunal regarding disability of the appellant. In view of the re-fixation of the notional income of the appellant at Rs.4,500/- and his disability at 5%, the relevant multiplier is '13', I hold that the appellant is entitled to get compensation under the head 'loss due to disability' at Rs.35,100/- instead of Rs.15,000/- fixed by the Tribunal. ## **Loss of amenities** 18. It is seen that the appellant had suffered injuries as seen from Ext.A5 wound certificate and Ext.A6 discharge summary and that he has proved that he had to undergo prolonged treatment for a _MACA No. 965 of 2011_ _10_ period of eight months till his implants were removed. Eventhough, the appellant had claimed an amount of Rs.40,000/- under the head 'loss of amenities', the Tribunal did not award any amount. Thus, I am of the opinion that a reasonable amount has to be awarded by the Tribunal under the said head, which I fix at Rs.20,000/- ## **Other heads of claim** 19. With respect to the other heads of compensation, it is seen that the Tribunal has awarded reasonable and just compensation. 20. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decision, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. _MACA No. 965 of 2011_ _11_ |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|10,000/-|36,000/-| |2|Transport|1,000/-|1,000/-| |3|Damages to clothing|500/-|500/-| |4|Bye-stander expenses|2,000/-|2,000/-| |5|Expenses for extra nourishment|1,500/-|1,500/-| |6|Medical expenses|6,815/-|6,815/-| |7|Compensation for pain and<br>sufferings|18,000/-|18,000/-| |8|Compensation for loss of<br>amenities|nil|20,000/-| |9|Loss due to disability|15,000/-|35,100/-| |||53,315/-|1,20,915/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.67,600/- (Rupees sixty seven thousand and six hundred only) with interest at the rate of 8% per annum on the enhanced compensation, from the date of petition till the date of deposit, after excluding the period of 116 days i.e., the delay in preferring the appeal as ordered by this Court on 23.03.2021 in C.M.Appl.No.1500 of 2011, and proportionate costs. The 3[rd] respondent shall deposit the enhanced _MACA No. 965 of 2011_ _12_ compensation in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall release the enhanced compensation amount to the appellant, in accordance with law. ## **Sd/-** **C.S.DIAS,JUDGE** **dlk 29.06.2021**