ARUN ALIAS S/O.P.V.ALIAS v. KRISHNAKUMAR A K; SHIBU P.B; UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **MACA.No.142 OF 2014(C)** **AGAINST THE AWARD IN OP(MV)NO.255/2009 DATED 06-09-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANT/PETITIONER** **ARUN ALIAS S/O.P.V.ALIAS, PUTHENPURACKAL HOUSE, ANJALPETTY P.O, PAMPAKKUDA 686 667.** **BY ADV. SRI.K.K.MOHAMED RAVUF** ## **RESPONDENTS/RESPONDENTS:** **1 KRISHNAKUMAR A K S/O.KURIAN, ASARIPARAMBIL HOUSE, ALANGADU P.O, THIRUVALLOOR, NORTH PARAVUR, ERNAKULAM DISTRICT. 2 SHIBU P.B S/O.BABU, PARAYATHUPARAMBIL HOSUE, KEDAMANGALAM, NORTH PARAVUR, ERNAKULAM DISTRICT.** - **3 THE UNITED INDIA INSURANCE CO.LTD JOS TRUST BUILDING, PB NO.3644, CHITTOOR ROAD, KOCHI 682 035.** **R3 BY ADV. SRI.RAJESH THOMAS SRI.PMM.NAJEEB KHAN** **R3 BY JOHN JOSEPH VETTIKAD, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.142 OF 2014(C)** 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No. 142 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of March, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.255 of 2009 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The respondents in the claim petition are the respondents in the appeal. For the sake of convenience, the parties are referred to as per their status in the claim petition. 2. The concise case of the petitioner in the claim petition, for the determination of the appeal, is that: on 25.12.2008 while the petitioner was riding pillion on the motorcycle bearing registration No.KL- 17/D2279 on the Aluva-Paravoor State a Highway, motorcycle bearing registration No.KL-42/2492 (offending vehicle) ridden by the 2[nd] respondent in a rash and negligent manner hit the motorcycle on which the petitioner was riding. The offending vehicle was owned by the 1[st] respondent and insured with the **MACA.No.142 OF 2014(C)** 3 3[rd] respondent. The petitioner sustained serious injuries and was admitted as an in-patient from 25.12.2008 to 10.01.2009 at the Medical Trust Hospital. The petitioner sustained a head injury, fracture on Rt.ZM complex, fracture of Lt. occipital bone, fracture on radius, fracture on Prox.phalynx of little finger and other injuries. He had to undergo CT Brain imaging on 25.12.2008 and 26.12.2008. He was put on ventilator support. Tracheostormy was done for better tracheobronchial toileting. The petitioner underwent plastic surgery consultation and was discharged on 10.01.2009, with an advice to have a review in neurosurgeon ward after two weeks. The petitioner prayed that the respondents 1 to 3 may be directed to pay the compensation of Rs.8,83,500/. 3. The respondents 1 and 2 were absent and were set ex-parte. 4. The 3[rd] respondent filed written statement, i _nter alia,_ refuting the allegations in the claim petition. The 3[rd] respondent contended that the **MACA.No.142 OF 2014(C)** 4 accident occurred solely due to the rashness and negligence of the rider of motorcycle on which the petitioner was a pillion rider. The compensation claimed by the petitioner under various heads were excessive or exorbitant. Hence, the 3[rd] respondent sought for the dismissal of the claim petition. 5. The petitioner produced and marked Exts. A1 to A13 in evidence. Ext.C1 disability certificate issued by the Medical College Hospital, Kottayam was also marked in evidence. Neither party adduced oral evidence. 7. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by permitting the petitioner to recover an amount of Rs.4,32,600/- with interest at the rate of 8% per annum from the date of petition till the date of realization with proportionate cost from the 3[rd] respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. **MACA.No.142 OF 2014(C)** 5 9. Heard the learned counsel for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent/3[rd] respondent in the appeal. 10. The sole question that emerges for consideration is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. 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. 12. Exts.A6 and A7 wound certificate and **MACA.No.142 OF 2014(C)** 6 discharge summary substantiate that the petitioner met with an accident on 25.12.2008 and was admitted as an in-patient till 10.01.2009. The police after investigation have filed Ext.A5 charge sheet in Crime No.1911/2008 of the Paravur Police Station, which proves that it was due to the negligence on the part of the 2[nd] respondent that the accident occurred. It is also not disputed by the 3[rd] respondent that the 3[rd] respondent was the insurer of the offending vehicle. 13. The petitioner had claimed that he was a B.Tech student in Sree Narayana Gurukulam Engineering College, Kadayirippu. To substantiate the said averment the petitioner produced Exts.A8, A9, A12 and A13 documents. 14. The principal dispute in this appeal is the fixation of notional income of the petitioner by the Tribunal. 15. The learned counsel for the appellant/petitioner argued that the petitioner has not shown any income in column No.6 of the claim **MACA.No.142 OF 2014(C)** 7 petition because he was a student. However, the Tribunal has fixed the petitioner's notional income at only Rs.4,500/- per month. The learned counsel relied on the decision of the Hon'ble Supreme Court in **Kajal v. Jagadish Chand** [2020(1) KLT 743(SC)] and contended that in the said case the Hon'ble Supreme Court held that the assesment made by the High Courts in fixing the notional income of a 12 year old girl at Rs.15,000/- was proper. It was observed that the young girl in the said case would have earned much more than Rs.15,000/- if the accident had not occurred. The learned counsel also placed reliance on the decision of a Division Bench of this Court in **Ramakrishnapillai K. and others v. New India Assurance Co. Ltd** .(2015 KHC 3703), wherein, this Court Division Bench had fixed the notional income of an engineering student at Rs.12,000/- for an accident that occurred in 2006. The learned counsel contended that the course adopted by the Hon'ble Supreme Court in **Kajal** and this Court in **Ramakrishnapillai K** **MACA.No.142 OF 2014(C)** 8 (supra) may be followed in the present case, for fixing the notional income of the appellant/petitioner. 16. The learned counsel for the 3[rd] respondentinsurance company on the contrary argued that the impugned award is perfectly justifiable and warrants no interference by this Court. ## **Notional income** 17. As already referred to, it is an undisputed fact that the petitioner was an engineering student as proved by Exts.A8, A9, A12 and A13. The petitioner had rightly not shown any income in the claim petition because he was a student. It was the duty of the Tribunal to have notionally fixed the income of the petitioner. Following the parameters laid down in the afore-cited decisions, I am of the considered opinion that the petitioner's notional income can safely be fixed at Rs.15,000/- per month, as the accident occurred in the year 2008 and that the petitioner was a sixth semester student. He would have graduated within a year and easily earned Rs.15,000/- or more. **MACA.No.142 OF 2014(C)** 9 In the said circumstances, I re-fix the notional income of the petitioner at Rs.15,000/-, and hold that the notional income of Rs.4,500/- fixed by the Tribunal is too low. ## **Disability certificate** 18. The petitioner was examined by the Medical Board of the Medical College Hospital, Kottayam. It was found that the petitioner suffers from 14.08% permanent disability. The said disability was accepted by the Tribunal. In the light of Ext.C1 certification made by the Medical Board, I am of the opinion that the above assessment is to be followed by rounding of the disability at 15%. Hence, I re-fix the permanent disability of the petitioner at 15%. ## **Loss of studies** 19. In the light of the re-fixation of the petitioner's notional income and that the petitioner had suffered serious injuries including a head injury and six fractures, which led to his hospitalization for a period of 17 days, I am of the firm opinion that the **MACA.No.142 OF 2014(C)** 10 petitioner had lost his studies for a period of three months. In such circumstances I hold that the petitioner is to be granted compensation on account of loss of studies for a period of three months calculated at Rs.15,000/- per month i.e., totalling to Rs.45,000/-. ## **- By stander expenses** 20. Eventhough, the petitioner was hospitalized for a period of 17 days, the Tribunal had awarded bystander expenses at only Rs.100/- per day i.e., Rs.1,600/- for the period of 16 days. The said amount is too low. An amount of Rs.300/- per day is reasonable and just. Accordingly, I re-fix by-stander expense at Rs.300/- per day for a period of 17 days, i.e., totalling to an amount of Rs.5,100/- ## **Other heads of claim** 21. With respect to the compensation awarded by the Tribunal, under the other heads of claim namely, Transportation, Extra nourishment, pain and sufferings, loss of amenities, I find that the Tribunal **MACA.No.142 OF 2014(C)** 11 has awarded reasonable and just compensation. Under the medical expenses also, the Tribunal has rightly awarded the actual expenditure incurred by the petitioner. 22. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I am of the considered opinion that the petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount<br>claimed|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|Loss of studies|50,000/-|18000/-|45,000/-| |2|Pain and sufferings|1,00,000/-|40,000/-|40,000/-| |3|Loss of amenities|75,000/-|25000/-|25,000/-| |4|By-stander expenses|4,000/-|1,600/-|5,100/-| |5|Extra<br>nourishment<br>charges|3,000/-|4,000/-|4,000/-| |6|Transportation<br>charges|3,000/-|1,500/-|1,500/-| |7|Medical<br>treatment<br>charges|2,50,000/-|2,20,806/-|2,20,806/-| |8|Compensation<br>for<br>permanent disability|1,88,000/-|1,21,651/-|4,86,000/-| ||||4,32,557/-|8,27,406| **MACA.No.142 OF 2014(C)** 12 In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of - Rs.3,94,849/-( (Rupees three lakh ninety four thousand eight hundred and forty nine only) with interest at the rate of 8% per annum on the enhanced compensation, from the date of petition till the date of realisation, along with proportionate costs. The third respondent shall deposit the additional compensation granted in this appeal with proportionate interest and costs within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability of the appellant/petitioner towards balance court-fee and legal benefit fund on the enhanced compensation. The disbursement of the compensation to the appellant/petitioner shall be done in accordance with law. ## **Sd/-** **C.S.DIAS,JUDGE** **dlK 05.03.2021**