Ali A.A. S/O Avarasokutty v. Sudhakaran S/O Kesavan, Suresh @ Kuttan S/O Narayanan and National Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943 MACA NO. 1279 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 828/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR** ## **APPELLANT/S:** ALI A.A. S/O.AVARASOKUTTY, RESIDING AT AMBALAVEETTIL HOUSE, ALOOR, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD ## **RESPONDENT/S:** 1 SUDHAKARAN S/O.KESAVAN, RESIDING AT SUFI BHAVAN, PERINGARA, THIRUVALLA, ALAPPUZHA DISTRICT, PIN-689 108. 2 SURESH @ KUTTAN S/O.NARAYANAN, RESIDING AT THEVARA HOUSE, VELLATTANJOOR VILLAGE, PATHRAMANGALAM DESOM, THRISSUR DISTRICT. 3 NATIONAL INSURANCE COMPANY LIMITED ENNANKATTIL ESTATE, P.B.NO.37, NEAR K.S.R.T.C., THIRUVALLA-689 001. BY ADVS. SMT.DEEPA GEORGE -R3 SRI.E.M.JOSEPH - R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1279 of 2012 ## **C.S.DIAS, J. ====================== MACA No.1279 of 2012** ## **====================== Dated this the 15[th] day of February 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.828/2004 on the file of the Motor Accident Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 4.1.2004. It was his case that, on the above said date, while he was travelling pillion on a motorcycle bearing registration No.KL-8/V 3659 through the Chavakkad-Puthuponnani public road, a lorry bearing registration No.KEE 2936 (lorry), driven by the second respondent in a rash and negligent manner, hit the motorcycle on which the appellant was travelling. The appellant sustained multiple injuries including fracture of 3 MACA No.1279 of 2012 the shaft of the left femur, fracture of the neck of the left femur and fracture scaphoid. He was treated as an inpatient for a period of 33 days at the Metropolitan Hospital, Thrissur. The first respondent was the owner and the third respondent was the insurer of the lorry. The appellant was a Waiter and was earning a monthly income of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.2,97,000/- from the respondents. 3. The rider of the motorcycle also filed OP(MV) No.827/2004 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 5. The third respondent/insurer had filed separate written statements in both the claim petitions denying the allegations in the claim petitions. It was contended that the accident occurred due to the negligence of the rider of the motorcycle. The third respondent also disputed the 4 MACA No.1279 of 2012 age, income and occupation of the petitioners in both the claim petitions. Hence, the third respondent prayed for dismissal of the claim petitions. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions had produced and marked Exts A1 to A19 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,32,030/- with interest. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.T.C Suresh Menon, the learned counsel appearing for the appellant/petitioner and Sri.E.M Joseph, the learned counsel appearing for the 5 MACA No.1279 of 2012 third respondent/insurer. 11. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Ext A2 final report filed by the Chavakkad Police in crime No.11/2004 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Ext A2 final report. Likewise, the third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 13. The appellant had claimed that he was a Waiter 6 MACA No.1279 of 2012 by profession and was earning a monthly income of Rs.5,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2,500/-. 14. 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 worker in the year 2004 at Rs.4,500/- per month. 15. Following the yardstick in the above-mentioned decision and considering the fact that the accident occurred in the year 2004, I re-fix the notional monthly income of the appellant at Rs.4,500/-. ## **Loss of earnings** 16. The Tribunal had found that the appellant was indisposed for a period of four months. I confirm the said finding. However, in view of the refixation of the notional monthly income of the appellant at Rs.4,500/-, I award 7 MACA No.1279 of 2012 him an amount of **Rs.18,000/-** under the head 'loss of earnings', instead of Rs.10,000/- awarded by the Tribunal. ## **Disability** 17. The appellant had produced Ext A17 disability certificate issued by the Assistant Professor, Department of Orthopedics, Medical College Hospital, Thrissur. The Doctor had certified that the appellant has permanent disability of 18%. But, the Tribunal scaled down the disability of the appellant to 5%. 18. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that if the Tribunal is not satisfied with the disability certificate produced before it, the Tribunal has to refer the injuredclaimant to a Medical Board. It is also held that if the disability certificate is marked with the consent of the parties, the same can be accepted in evidence. Moreover, what needs to be looked into in an injury claim is the functional disability of the injured-claimant. 8 MACA No.1279 of 2012 19. In the instant case, the Tribunal accepted and marked Ext A17 in evidence. For apparently no reason, the Tribunal has scaled down the disability and fixed it at 5%. Moreover, the Tribunal has not referred the appellant to a Medical Board. 20. On an appreciation of Ext A17, it is seen that the appellant has a mal union of neck of the femur and mal union of the shaft of left femur at 4% each. As regards the stiffness of the hip and knee and united fracture of the scaphoid, which is assessed at 10%, I do not find it to be a permanent disability. Therefore, I assess the functional disability of the appellant at 8%. ## **Multiplier** 21. Admittedly, the appellant was aged 26 years at the time of the accident. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '17'. 9 MACA No.1279 of 2012 ## **Loss due to disability** 22. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at 4,500/-, the multiplier at '17' and his functional disability at 8%, I award the appellant an amount of **Rs.73,440/-** towards loss due to disability, instead of Rs.25,500/awarded by the Tribunal. ## **Extra Nourishment** 23. The appellant was treated as an inpatient for a period of 33 days. The Tribunal has awarded a consolidated amount of Rs.2,000/- under the heads, transportation expenses, damage to clothing and extra nourishment. I find the amount to be on the lower side. Accordingly, I award the appellant an amount of Rs.150/- per day for a period of 33 days towards extra nourishment, which amounts to **Rs.4,950/-.** ## **Pain and sufferings and Loss of amenities** 24. The Tribunal has awarded an amount of 10 MACA No.1279 of 2012 Rs.12,000/- under the head 'pain and sufferings and Rs.7,000/-under the head 'loss of amenities'. 25. Taking into account the fact that the appellant was treated as an inpatient for a period of 33 days, that he was indisposed for a period of four months and that he has suffered a functional disability of 8%, I award him a further amount of **Rs.18,000/-** under the head 'pain and sufferings' and **Rs.13,000/** - under the head 'loss of amenities'. ## **Other heads of compensation** 26. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above, and given in the table below for easy 11 MACA No.1279 of 2012 ## reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|10,000/-|18,000/-| |2|Transportation expenses<br>Damage to clothing|2,000/-|2,000/-| |3|Extra nourishment|Nil|4,950/-| |4|Bystander expenses|12,000/-|12,000/-| |5|Medical expenses|63,530/-|63,530/-| |6|Pain and sufferings|12,000/-|30,000/-| |7|Loss due to disability|25,500/-|73,440/-| |8|Loss of amenities etc|7,000/-|20,000/-| ||Total|1,32,030/-|2,23,920/-| In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.91,890/-** (Rupees Ninety One Thousand Eight Hundred and Ninety only) with interest at the rate of 7% per annum on the enhanced compensation from the date of claim petition till the date of realisation and a cost of Rs.10,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and 12 MACA No.1279 of 2012 cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant /petitioner, in accordance with law. Sd/- sks/15.2.2022 **C.S.DIAS, JUDGE**