Antony, S/o Pappu v. Denny Jacob, Nishad S/o Abdul Khader, and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943** ## **MACA NO. 1649 OF 2009** **AGAINST THE AWARD DATED 15.12.2008 IN OPMV 2197/2004 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM** ## **APPELLANT/CLAIMANT:** ANTONY, S/O PAPPU,KALLINGAL HOUSE, MATTOOR,MATTOOR VILLAGE. BY ADV SRI.K.K.MOHAMED RAVUF ## **RESPONDENTS/RESPONDENTS:** - 1 DENNY JACOB, MANGALAKKADAN HOUSE, ONNAM MILE,PERUMBAVOOR. - 2 NISHAD S/O.ABDUL KHADER MANGADAN HOUSE,MEKKALADY,KALADY. - 3 NATIONAL INSURANCE CO.LTD. P.B.NO.6,M.M.JUNCTION,KOLENCHERY. BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 1649 OF 2009 2** ## **Dated this the 16[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2197/2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. 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 that he sustained in an accident on 19.08.2004. It was his case that, on the aforesaid date, while he was walking along the Mattoor – Chengal Road, when he reached Mattoor Kavala, a motorcycle bearing registration No. KL-7/AH 2950 (motorcycle), driven by the 2[nd] respondent in a rash and negligent manner, hit the appellant. The appellant fell down and sustained serious injuries, including a fracture ## **MACA NO. 1649 OF 2009 3** of ribs right side and supracondylar fracture femur. He was treated as inpatient at the St. James Hospital, Chalakkudy for the period from 19.08.2004 to 04.09.2004 i.e. for a period of 17 days. The appellant was a tailor by profession and earning a monthly income of Rs.4500/-. The motorcycle was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a total compensation of Rs.2,85,000/- from the respondents, which was limited to Rs.1,45,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent had filed a written statement, refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the appellant himself. The 3[rd] respondent also disputed the age, income and occupation of the appellant and contended that the compensation claimed was exorbitant. Hence, the 3[rd] respondent prayed that ## **MACA NO. 1649 OF 2009 4** the claim petition be dismissed. 5. The appellant examined the Doctor, who assessed his disability, as PW1 and marked Exhibits A1 to A10 series in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise from the 3[rd] respondent an amount of Rs.92,970/- with 7% interest from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. K.K. Mohamed Ravuf, the learned counsel appearing for the appellant/petitioner and Smt. Deepa George, the learned counsel appearing for the third respondent/insurer. 9. The sole question that arises for consideration in this appeal is whether the quantum of compensation **MACA NO. 1649 OF 2009 5** awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exhibit A4 charge sheet filed by the Kalady Police in Crime No.507/2004 proves that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the first respondent was the owner and the 3[rd] respondent was the insurer of the motorcycle. The respondents have not let in any evidence to discredit the charge sheet. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a tailor by profession and earning a monthly income of Rs.4500/- . Nevertheless, the Tribunal, for the want of material, fixed the notional monthly income of the appellant at Rs.2000/- 12. In **Ramachandrappa v. Manager, Royal** ## **MACA NO. 1649 OF 2009 6** ## **Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardsticks in the afore-cited decisions and considering the fact that the accident occurred in the year 2004, I re-fix the notional monthly income of the appellant at Rs.4500/- as claimed in the claim petition. ## **Loss of earnings** 14. It is proved by Exhibit A6 wound certificate, Exhibit A7 discharge summary and Exhibit A8 Medical certificate that the appellant had sustained two fractures and was treated as inpatient for a period of 17 days. In view of the fact that he was a tailor by profession, I hold that he was indisposed for a period of six months. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.4500/- per month, I re-fix ## **MACA NO. 1649 OF 2009 7** the loss of earnings of the appellant at Rs. Rs.27,000/-, instead of Rs.8000/- awarded by the Tribunal. ## **Disability** 16. The appellant had produced Exhibit A9 disability certificate issued by the five member Medical Board, wherein it has been certified that the appellant has a permanent/partial disability of 50% under the moderate category. In order to prove Exhibit A8, the appellant examined PW1, a member of the Medical Board – the Psychiatrist. 17. After analysing the oral testimony of PW1 and Exhibit A9 disability certificate, the Tribunal has fixed the permanent disability of the appellant at 8%. 18. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that in a case of injury, what needs to be looked into is the functional disability of the injured-claimant. 19. In the instant case, undisputedly, the appellant **MACA NO. 1649 OF 2009 8** was a tailor by profession. Going by the nature of injuries that the appellant has sustained, especially to his right leg, which has a shortening and deformity with locomotor impairment, I fix the appellant’s functional disability at 20%. ## **Multiplier** 20. The appellant was aged 35 years at the time of accident. Going by the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘16’. ## **Loss due to disability** 21. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.4500/-, his functional disability at 20% and the multiplier at 16, I award the appellant an amount of Rs.1,72,800/- as compensation for loss due to disability, instead of Rs.30,720/- awarded by the Tribunal. ## **MACA NO. 1649 OF 2009 9** ## **- By stander expenses** 22. It is proved and established by the materials on record, that the appellant was treated as inpatient for a period of 17 days. The Tribunal has awarded only an amount of Rs.1500/- towards by-stander expenses, which according to me is on the lower side. Hence, I award the appellant an amount of Rs.250/- per day for a period of 17 days, which works out to Rs.4250/-. 23. Similarly, I also award the appellant an amount of Rs.150/- per day for a period of 17 days towards ‘extra nourishment’, which works out to Rs.2550/-. ## **Pain and sufferings** 24. The appellant had claimed an amount of Rs.28,000/- under the head ‘pain and sufferings’. However, the Tribunal has awarded only an amount of Rs.15,000/- under the said head. 25. On a consideration of the facts that the appellant had sustained two fractures, that he was treated as ## **MACA NO. 1649 OF 2009 10** inpatient for a period of 17 days, that he was indisposed for a period of six months and that he has suffered functional disability of 20%, I award the appellant a further amount of Rs.10,000/- under the head ‘pain and sufferings’. 26. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 27. On an over all re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Loss of earnings|8000|27000| ## **MACA NO. 1649 OF 2009 11** ||||| |---|---|---|---| |2|Transportation|1000|1000| ||Damage<br>to<br>Clothing|250|250| |3|By<br>stander<br>expenses|1500|4250| ||Extra<br>nourishment|1000|2550| |4|Medical expenses|25500|25500| |5|Pain<br>and<br>sufferings|15000|25000| |6|Loss of amenities|10000|10000| |7|Loss<br>due<br>to<br>disability|30720|172800| ||**Total**|**92970**|**2,68,350**| Even though the appellant had claimed only a compensation of Rs.1,45,000/-, considering the principles in Raj Kumar’s case (supra), I have awarded the appellant more compensation than what is claimed in the claim ## **MACA NO. 1649 OF 2009 12** petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh [2003** **(1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC].** In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.1,75,380/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit and a cost of Rs.10,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant, after deducting his liability, if any, towards courts fee and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm17/11/2021