A.P. Thomas @ Biju Paul v. P.V. Joy and others, New India Assurance Company, United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943** **MACA NO. 1775 OF 2008** **AGAINST THE AWARD IN OPMV 638/2001 DATED 17.09.2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD APPELLANT/PETITIONER:** A.P.THOMAS @ BIJU PAUL AGED 28 YEARS S/O.A.T.PAUL, ANJILICKAL HOUSE, KAKKAVAYAL PO., VYTHIRI TALUK, WAYANAD. BY ADV SRI.N.J.ANTONY ## **RESPONDENTS/RESPONDENTS:** 1 P.V.JOY AGED 30 YEARS S/O SARAMMA, THURUTHEL HOUSE, KAKAVAYAL POST,, VYTHIRI TALUK., (DRIVER OF JEEP KL-10 F/7683 DL.1440/94) 2 N.D.RAJU, AGED 38 YEARS S/O.LATE DEVASSIA, NELLINIKUMTHADATHIL HOUSE, VAZHAVATTA, KAKKAVAYAL POST, KALPETTA, (OWNER OF JEEP NO.KL-10F/683) 3 NEW INDIA ASSURANCE COMPANY KALPETTA, POLICY NO. NOW KNOWN) 4 N.D.RAJU AGED 25 YEARS, S/O.N.D.APPACHAN, NELLINIKUMTHADATHIL HOUSE, KAKKAVAYAL POST, VAZHAVATTA., KALPETTA, DRIVER OF CAR NO.TN.09E/0598, D.L.NO.457/97 5 SAILESH FATHERS NAME AND AGE NOT KNOWN, NO.59 4TH CROSS ST.KAVINGAR KANNADASSAN NAGAR, CHENNAI. M.A.C.A.No.1775 of 2008 -:2:- 6 UNITED INDIA INSURANCE CO LTD NOORANAL BUILDING, SULTHAN BATHERY. (POLICY NO.NOT KNOWN POLICY VALID FROM 8/05/2001 TO 07/05/2002) BY ADVS. SMT.A.SREEKALA PMM.NAJEEB KHAN **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1775 of 2008 -:3:- Dated this the 10th day of September,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.638/2001 on the file of the Motor Accidents Claims Tribunal, Kalpetta. 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 25.10.2001. 3. The facts in brief, relevant for the determination of the appeal, are: on 25.10.2001, while the appellant was travelling in a car bearing registration No. TN-09E/0598 from Kakkavayal to Meenangadi, a jeep bearing registration No. KL-10F 7683(jeep) driven by the 1st respondent in a rash and negligent manner hit the car. The appellant sustained severe injuries, including a depressed fracture of the M.A.C.A.No.1775 of 2008 -:4:- left frontal bone and a fracture of the right maxilla. He was treated at the Fathima Matha Mission Hospital, Kalpetta and, thereafter, at the Baby Memorial Hospital, Kozhikode as an inpatient from 25.10.2001 to 01.11.2001. A surgery was conducted on the frontal area. The jeep was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The car in which the appellant was travelling was driven by the 4[th] respondent, owned by the 5[th] respondent and insured with the 6[th] respondent. The appellant claimed that he was an agriculturist and a small scale business man and earning a monthly income of Rs.5000/-. Accordingly, the appellant claimed a compensation of Rs.2,00,000/- from the respondents. 4. The respondents 1 to 4 and 5 did not contest the proceedings and were set ex parte. 5. The third respondent filed a written statement admitting that the jeep had a valid M.A.C.A.No.1775 of 2008 -:5:- insurance policy. However, it was contended that the accident occurred due to the negligence on the part of driver of the car. The 6[th] respondent filed a written statement admitting that the car had a valid insurance policy and stated that the accident occurred due to the negligence of the 1[st] respondent – driver of the jeep. 6. The appellant was examined as PW1 and he marked Exhibits A1 to A10 series in evidence. The disability certificate was marked as Exhibit ‘C1’ in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellant to realise an amount of Rs.23,950/- with interest and cost from the 3[rd] respondent – insurer of the jeep. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.N.J.Antony the learned counsel M.A.C.A.No.1775 of 2008 -:6:- appearing for the appellant/petitioner, Smt.A. Sreekala the learned counsel appearing for the third respondent/insurer of the jeep and Sri.P.M.M. Najeeb Khan the learned counsel appearing for the 6[th] respondent insurer of the car. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 11. Exhibit A5 charge sheet filed by the police substantiates that the accident occurred due to the negligence of the 1[st] respondent – the driver of the jeep. Undisputedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the jeep. As there was no violation of insurance policy conditions, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out the accident. M.A.C.A.No.1775 of 2008 -:7:- ## **Notional Income** 12. The appellant had claimed that he was an and small time business man agriculturist by profession and earning a monthly income of Rs.5000/-. The Tribunal fixed the notional income of the appellant at Rs.2100/- per month. 13. In **Ramachandrappa v. Manager, Royal 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. In the said decision the Honourable Supreme Court has held that Rs.500/- has to be enhanced every year. The same principle has to be followed by decreasing Rs.500/every year in the previous years to fix the notional income of a person who sustained injures prior to 2004. 14. Taking into account the fact that the appellant M.A.C.A.No.1775 of 2008 -:8:- was an agriculturist by profession and the accident occurred in the year 2001, I am of the opinion that the appellant’s notional income can safely be fixed at Rs.3000/- per month. ## **Loss due to disability** 15. Even though the appellant was examined himself as PW1 and produced Exhibit ‘C1’ disability certificate to prove that the appellant has a permanent disability at 2%, the Tribunal did not award any compensation for loss due to disability. This according to me is erroneous, because Exhibit ‘C1’ was issued by the District Medical Board, Wayanad. Therefore, I fix the functional disability of the appellant relying on Exhibit ‘C1’ at 2%. 16. Since the appellant was 28 years at the time of accident, following the principles laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another** [2010 (2) KLT 802 SC], I fix the M.A.C.A.No.1775 of 2008 -:9:- multiplier at '17' and award an amount of Rs.12,240/towards compensation for loss due to disability. ## **Loss of earnings** 17. It is proved by Exhibit ‘C1’ disability certificate and Exhibit A4 wound certificate that the appellant had a depressed fracture of the frontal bone. He was treated as inpatient for a period of eight days. Therefore, it is to be concluded that the appellant was indisposed for a period of three months. In the said circumstances, I award an amount of Rs.9000/towards loss of earnings. ## **- By stander expenses** 18. The appellant was treated as inpatient for a period of eight days. The Tribunal has awarded only an amount of Rs.500/- towards by-stander expenses, which according to me is on the lower side. 19. Keeping in mind the fact that the accident occurred in the year 2001, I fix Rs.200/- per day M.A.C.A.No.1775 of 2008 -:10:- towards by-stander expenses, which comes to an amount of Rs.1600/-. ## **Pain and suferings.** 20. Undisputedly, the appellant has sustained fracture and was treated as inpatient for a period of eight days, was indisposed for a period of three months and has suffered a permanent disability of 2%. Therefore, I hold that the appellant is entitled to an amount of Rs.10,000/- as compensation for pain and sufferings instead of Rs.5000- awarded by the Tribunal. Similarly, I award an amount of Rs.5000/- as compensation for loss of amenities. 21. With respect to other heads of compensation, namely, transport, clothing, extra nourishment, medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the M.A.C.A.No.1775 of 2008 -:11:- afore-cited decisions, I am of the definite opinion 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>modifed<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Loss of earnings|600|9000| |2|Transportation<br>expenses|700|700| |3|Clothing|250|250| |4|By-stander<br>expenses|500|1600| |5|Extra nourishment|500|500| |6|Medical expenses|16400|16400| |7|Pain and suferings|5,000|10,000| |8|Loss of amenities|Nil|5000| |9|Loss<br>due<br>to<br>disability|Nil|12240| ||**Total**|**23950**|**55690**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of M.A.C.A.No.1775 of 2008 -:12:- Rs.31,740/- with interest at the rate of 6 % per annum from the date of petition till the date of deposit, after deducting interest for a period of 214 days i.e., the period of delay in filing the appeal and as ordered by this Court on 19.03.2021 in C.M.Appln. No.1768/2008, and a cost of Rs.3000/-. 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 in accordance with law. All pending interlocutory applications are closed. Sd/- ## **C.S.DIAS,JUDGE** rmm