B Ravikumar S/o Bhanu Saradom v. Principal Seethi Sahib Memorial English Medium School; R. Sajeevkumar S/o Raman Pillai; The Divisional Manager United Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** ## **MACA.No.1388 OF 2010** **AGAINST THE AWARD IN OPMV 1057/2009 DATED 14-01-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/PETITIONER:** **B.RAVIKUMAR S/O BHANU SARADOM, KURIKKANNI, VARKALA.P.O.& VILLAGE,, NOW RESIDING AT INDRAPRATHOM DRAINAGE LANE,, KANNANMMOOLA, PETTAH.P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENTS:** **1 PRINCIPAL,. SEETHI SAHIB MEMORIAL ENGLISH MEDIUM SCHOOL, KOCHALUMMOODU,, MUNDAPURAM.P.O., CHIRAYINKIL, THIRUVANANTHAPURAM. 2 R.SAJEEVKUMAR S/O. RAMAN PILLAI KANNANKARAKONAMKOCHU VEEDU, KUDAVOOR,, MELTHONNACKAL.P.O., THIRUVANANTHAPURAM. 3 THE DIVIONAL MANAGER UNITED INSURANCE CO. LTD., C.W.C. BUILDING, L.M.S COMPOUND, THIRUVANANTHAPURAM.** MACA.No.1388 OF 2010 2 ## **SMT.P.A.REZIYA FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, THE COURT ON 09-03-2021 DELIVERED THE FOLLOWING:** MACA.No.1388 OF 2010 3 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- M.A.C.A. No. 1388 of 2010 ------------------------------------------ Dated this the 9[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellant is the injured/claimant in O.P.(M.V). No.1057/2009 on the file of the Motor Accident Claims Tribunal, Kollam. The above claim petition was filed under Section 166 of the Motor Vehicles Act. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2. The short facts are like this:- On 26.09.2001, at about 10.45 a.m., while the appellant was travelling in an Ambassador Car bearing Registration No. KL-01/D- 8512 from Thiruvananthapuram to Attingal along the National Highway and when the car reached at Mamom, a lorry bearing Registration No. TN-74-6746, ``` MACA.No.1388 OF 2010 4 ``` going ahead of the car, stopped for giving passage to a pedestrian and the driver of the car also stopped and in the meantime the offending school bus bearing Registration No. KRU-8383 driven by the 2[nd] respondent in a rash and negligent manner without keeping safe distance from the car, smashed at the rear side of the car and the car collided with the truck. Due to the collision, the petitioner who was sitting in the back seat was thrown to the front seat and thereby sustained serious injuries. The accident occurred solely due to the rash and negligent driving of the 2[nd] respondent. Respondent Nos. 1 to 3 are the registered owner, driver and insurer of the bus bearing Registration No. KRU-8383 respectively. ``` ``` 3. To substantiate the case, Exhibit A1 to A23 were marked and PW1 and PW2 were examined on the side of the petitioner. After going through the ``` MACA.No.1388 OF 2010 5 ``` evidences and documents, the Tribunal found that the appellant is entitled an amount of Rs. 80,300/- (Rupees Eighty Thousand and Three Hundred Only) as compensation with interest at the rate of 7.5% p.a., from the date of petition, till realization. Aggrieved by the quantum of compensation, this appeal is filed. ``` `4. Heard the learned counsel for the appellant` `and the learned counsel for the 3[rd] respondent.` ``` 5. The learned counsel for the appellant submitted that the appellant is a Senior Practicing Advocate and he is a panel advocate of the New India Assurance Co. Ltd, the Oriental Insurance Co. Ltd, The National Insurance Co. Ltd and some other commercial banks. Therefore, the Tribunal fixed the monthly income of the petitioner as Rs.7,000/-, but while assessing the disability, the Tribunal took Rs.2000/- as his notional income and this is incorrect. ``` MACA.No.1388 OF 2010 6 ``` 6. I see some force in the argument of the learned counsel. Admittedly, the appellant is a lawyer practicing at Thiruvananthapuram. He is a panel advocate to several Insurance Companies and he is an income tax payee. After finding that the petitioner is getting Rs.7000/- per month, the Tribunal erred in reducing the same to Rs.2,000/- while assessing disability compensation. Therefore, for assessing disability compensation, Rs. 7,000/- is to be taken as monthly income. ``` ``` 7. The appellant produced Exhibit A23 disability certificate before the Tribunal and examined the doctor who issued the certificate as PW2. As per the disability certificate, percentage of disability assessed by the doctor is 12%, but the Tribunal after considering the facts and circumstances, reduced the disability to 8%. ``` `8. I find no reason for reducing the disability from` MACA.No.1388 OF 2010 7 ``` 12% to 8%, especially when there is oral evidence of PW1 and PW2. The Apex Court inPappu Deo Yadav v. Naresh Kumar and others [AIR 2020 SC 4424] after considering a plethora of decisions on a point 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in Syed Sadiq and others v. Divisional Manager, United India Insurance Company [2014 (2) SCC 735] and Raj Kumar v. Ajay kumar and anr.[2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both ``` MACA.No.1388 OF 2010 8 ``` in the assessment of extent of disabilities and compensation under various heads. It was also held that the court should award compensation on future prospects. ``` ``` 9. In the light of the above principle laid down by the Apex Court, according to me, the disability assessed by PW2, the doctor in Exhibit A23 can be accepted safely. If that is the case, the compensation for disability is to be recalculated like this:- ``` ``` 7000x12x13x12/100=Rs.1,31,040/- ``` ``` From the above amount, Rs.24,960/- which is the amount already granted by the Tribunal is to be deducted. Therefore, the enhanced amount, the appellant entitled towards disability is Rs.1,06,080/- (Rupees One Lakh Six Thousand and Eighty Only). ``` `10. The Tribunal awarded an amount of` `Rs.10,000/- towards loss of amenities. I think, another` MACA.No.1388 OF 2010 9 ``` amount of Rs. 10,000/- (Rupees Ten Thousand Only) also can be granted in that count. ``` ``` 11. Even though, the learned counsel argued that the appellant is entitled more amount towards future prospects and on other heads, according to me, in the facts and circumstances of the case, the Tribunal considered all the aspects and awarded a just and reasonable compensation. ``` `12. Therefore, the enhanced compensation` `entitled by the appellant can be summarised like this:-` ## **`Head`** ## **`Amount`** ``` Compensation for disabilityRs.1,06,080/- Loss of amenitiesRs.10,000/- ``` ``` TotalRs.1,16,080/- ``` ``` The appellant is entitled interest at the rate of 8% p.a., for the enhanced compensation. ``` MACA.No.1388 OF 2010 10 ``` Therefore, this appeal is allowed in part and the impugned award is modified. The appellant is entitled an enhanced compensation of Rs.1,16,080/- (Rupees One Lakh Sixteen Thousand and Eighty Only) with interest at the rate of 8% p.a., from the date of petition till realisation. Respondent No.3 is liable to pay the compensation with interest. ``` ``` Sd/- ``` ``` P.V.KUNHIKRISHNAN JUDGE ``` ``` avs ```