A.S. SASI v. T.K. RAMESH, SHAJI and UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** ## **MACA NO. 3063 OF 2009** **AGAINST THE COMMON AWARD IN OP(MV)NO.3149/2002 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **A.S.SASI, S/O.SUKUMARAN, EXHUKANAL HOUSE KONNAKALKADAVU, KORANCHIRA P.O., VADAKKUMCHERRY.** **BY ADV SRI.V.BINOY RAM** ## **RESPONDENTS:** |**1**|**T.K.RAMESH, T.K.R.HOUSE,**| |---|---| ||**KATHAMPULLY P.O., THIRUVILAWAMALA.**| |**2**|**SHAJI, S/O.OUSEPH**| ||**CHITTILAPPILLY HOUSE,**| ||**VANIYAMPARA,, THRISSUR DISTRICT.**| |**3**|**UNITED INDIA INSURANCE CO. LTD.**| ||**PARK HOUSE, ROUND NORTH,**| ||**THRISSUR.**| ||**BY ADV SRI.S.ARUN RAJ**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3063 of 2009 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 3063 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.3149 of 2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The concise facts in the claim petition, relevant for the determination of the appeal, are: on 26.06.2002, while the appellant was riding a bicycle through Palakkad – Thrissur National Highway, when he reached in front of Dayana Hotel, a Jeep bearing registration No.KL 07/H 738 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner at excessive speed came from the same direction and hit the bicycle. The appellant fell on the MACA.No.3063 of 2009 _3_ road and sustained serious injuries on his back bone including a fracture on his L1 vertebra. He was treated at Elite Mission Hospital, Koorkanchery for a period of five days from the date of accident. The appellant was a Hotel employee and was earning a monthly income of Rs.4,500/-. The Jeep was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the respondents were liable to pay compensation to the appellant, which he quantified at Rs.2,28,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement admitting that the Jeep had a valid insurance policy. However, the age, occupation and income of the appellant was disputed. It was contended that the amount of compensation claimed under different MACA.No.3063 of 2009 _4_ heads was excessive. 5. The person who was travelling on the bicycle along with the appellant and who sustained injuries in the same accident, filed OP(MV)No.3148 of 2002 before the same Tribunal. 6. The Tribunal consolidated and jointly tried both the original petitions. 7. The Doctor who treated the appellant and issued Ext.A8 disability certificate was examined as PW1. Exts.A1 to A9 were produced and marked in evidence. The 3[rd] respondent produced Ext.B1 insurance policy in evidence 8. The Tribunal by its common award allowed the claim petition filed by the appellant, in part, by permitting the appellant to realise an amount of Rs.1,02,440/- from the 3[rd] respondent with interest at the rate of 7% per annum from the date of petition till MACA.No.3063 of 2009 _5_ the date of payment along with proportionate costs. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner/appellant is in appeal. 10. Heard the learned counsel for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent-insurance company. 11. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 12. 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, MACA.No.3063 of 2009 _6_ 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. 13. Ext.A5 charge-sheet filed by the Wadakkanchery police in Crime No.220 of 2002 proves that the accident occurred solely on account of the negligence on the part of the 1[st] respondent, who drove the Jeep in a rash and negligent manner. Undisputedly, the 2[nd] respondent was the owner of the Jeep and the 3[rd] respondent was the insurer. Therefore, it is the 3[rd] respondent who is legally liable to indemnify the 2[nd] respondent of his liability on account of the accident. 14. The appellant had claimed that he was a Hotel employee earning a monthly income of MACA.No.3063 of 2009 _7_ Rs.4,000/- . The Tribunal fixed the notional income of the appellant at Rs.2,000/- per month. 15. 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. ## **Notional income** 16. Following the ratio in the afore-cited decisions and considering the fact that the accident occurred in the year 2002, I re-fix the notional income of the appellant at Rs.3,500/- per month. ## **Loss of earnings** 17. Ext.A3 wound certificate, Ext.A6 discharge summary and Ext.A8 disability certificate proves that the appellant had sustained a fracture on the L1 vertebra. He was treated as an in-patient for a period MACA.No.3063 of 2009 _8_ of five days and was continuing review till 30.11.2002 i.e., for the period of five months. Therefore, it is on record that the appellant was incapacitated for a period of five months. In view of the re-fixation of the notional income of the appellant at Rs.3,500/- per month and that he was incapacitated for a period of five months, I re-fix compensation under the head 'loss of earnings' at Rs.17,500/, instead of Rs.6,000/fixed by the Tribunal. ## **Loss due to disability** 18. Ext.A8 disability certificate corroborated with the evidence of PW1 proves that the appellant has a permanent disability of 17%. In view of refixation of the notional income of the appellant at Rs.3,500/- and the multiplier being '17', I hold that the appellant is entitled for compensation under the head 'loss due to disability' at Rs.1,21,380/-, instead of MACA.No.3063 of 2009 _9_ Rs.73,440/- awarded by the Tribunal. ## **Pain and sufferings** 19. The appellant had claimed an amount of Rs.24,000/- towards compensation for 'pain and sufferings'. It is established through Ext.A3 wound certificate, Ext.A6 discharge summary and Ext.A8 disability certificate that the appellant had sustained a fracture on his L1 vertebra. He was treated as an inpatient for a period of five days and had to undergo review for a period of five months. Therefore, I hold that the appellant is entitled for compensation under the head 'pain and sufferings' at Rs.15,000/- i.e., an enhancement of Rs.5.000/- ## **Loss of amenities** 20. the had claimed an Similarly, appellant amount of Rs.30,000/- as compensation for 'loss of amenities'. The Tribunal only awarded an amount of MACA.No.3063 of 2009 _10_ Rs.8,000/-. It is proved by PW1 and Ext.A8 disability certificate that the has a appellant permanent disability of 17%. In view of the said aspect, I hold that the appellant is entitled for compensation under the head 'loss of amenities' at Rs.15,000/- i.e., an enhancement of Rs.7,000/- ## **Other heads of claim** 21. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. 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 definite 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.3063 of 2009 ## _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|6,000/-|17,500/-| |2|Transport|1,000/-|1,000/-| |3|Damages to clothing|500/-|500/-| |4|Bye-stander expenses|450/-|450/-| |5|Expenses for extra nourishment|1,000/-|1,000/-| |6|Medical expenses|2,050/-|2,050/-| |7|Compensation for pain and<br>sufferings|10,000/-|15,000/-| |8|Compensation for loss of<br>amenities|8,000/-|15,000/-| |9|Loss due to disability|73,440/-|1,21,380/-| |||1,02,440/-|1,73,880/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.71,440/- (Rupees seventy seven thousand four hundred and forty only) with interest at the rate of 7% per annum on the enhanced compensation, from the date of petition till the date of deposit and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate MACA.No.3063 of 2009 _12_ costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 13.07.2021**