BABU S/O. SAHADEVAN & OTHERS v. SHEMEER S/O. BASHER & NIYAS S/O ABOOBACKER & UNITED INDIA INSURANCE CO LTD

**MACA.No.652 OF 2013** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **MACA.No.652 OF 2013** **AGAINST THE AWARD IN OP(MV) 707/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANTS/PETITIONERS:** - **1 BABU S/O. SAHADEVAN, MATTATHUPARAMBU, KUTHIRAPANTHI, ALAPPUZHA.** - **2 SHYLAJA W/O. BABU, RESIDING - DO -** - **3 VYSALI (MINOR) D/O. BABU, RESIDING - DO -** - **4 VYSAKH S/O. BABU (MINOR) RESIDING - DO -** **(PETITIONERS 3 AND 4 ARE REPRESENTED BY THE 2ND PETITIONER)** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT/S:** **1 SHEMEER S/O. BASHER, THOUFIKE MANZIL, PALACE WARD, ERAVUKADU WARD, ALAPPUZHA.** **MACA.No.652 OF 2013** **2** **2 NIYAS, S/O. ABOOBACKER, 8/24/1073/28, PUTHEN VEEDU, ALAPPUZHA.** **3 UNITED INDIA INSURANCE CO LTD., DIVISIONAL OFFICE, SARADA SHOPPING COMPLEX, MULLACKAL, ALAPPUZHA.** **R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU** ## **OTHER PRESENT:** **ADV -- JOHN JOSEPH VETTIKAD –SC FOR INSURANCE COMPANY .** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.652 OF 2013** **3** ## **JUDGMENT** ## **Dated this the 25th day of March 2021** The appellants were the petitioners in O.P (MV) 707/2006 on the file of the Motor Accidents Claims Tribunal, Alapppuzha. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 ( in short “ the Act”) claiming compensation on account of the injuries that was sustained by the 1[st] petitioner in the accident that took place on 6.10.2005. It was the case of the petitioners that on 6.10.2005 while the 1[st] petitioner was driving his autorickshaw through the Alappuzha - Kollam National Highway, when he reached the Thiruvampadi junction, a motorcycle bearing Reg. No.KL/4T/899 (offending vehicle) driven by the 1[st] respondent hit the 1[st] petitioner and he fell down and sustained serious injuries. **MACA.No.652 OF 2013** **4** The 1[st] petitioner was taken to the Medical College Hospital, Alappuzha where he was treated as an inpatient for a period of 50 days. The 1[st] petitioner sustained grievous injuries including fractures of both his bones on his right leg and acute subdural hemorrhage on the left side. The 1[st] petitioner was an autorickshaw driver and earning a monthly income of Rs.5,000/-. As the 1[st] petitioner was seriously laid up, the petitioners 2 to 4, his wife and minor children, were filing the claim petition along with the 1[st] petitioner. The 2[nd] respondent was the owner and 3[rd] respondent was the insurer of the offending vehicle. The petitioners contended that the respondents were liable to pay the petitioners an amount of Rs.10,35,000/- as compensation. 3. The respondents 1 and 2 filed a joint written statement denying the allegations in the claim petition. They contended that the accident occurred solely due to the negligence on the part of the 1[st] petitioner. Nevertheless, the offending vehicle was insured with the 3[rd] respondent. Therefore, only the 3[rd] respondent was **MACA.No.652 OF 2013** **5** liable to pay the compensation. 4. The 3[rd] respondent filed a separate written statement admitting that the offending vehicle had a valid insurance policy issued by the 3[rd] respondent. However, the 3[rd] respondent denied that the accident occurred due to the negligence of the 1[st] respondent. It was also contended that the amount of compensation claimed was excessive. 5. The petitioners 1 and 2 were examined as PW1 and PW3. The Doctor who issued Ext.C1 disability certificate was examined as PW2. Exts.A1 to A11 and Ext.C1 were marked in evidence through PW1 to PW3. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by allowing the 1[st] petitioner to realise an amount of Rs.1,68,315/- with interest at the rate of 7.5 % per annum from the date of petition till the date of realisation and a cost of Rs.1,683/- from the respondents. The 3[rd] respondent was directed to pay the **MACA.No.652 OF 2013** **6** compensation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the 3[rd] respondent/ Insurance Company. 9. 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. 10. Ext.A4 charge-sheet filed by the Police after investigation, substantiates that the accident occurred solely due to the negligence of the 1[st] respondent. It is proved that the offending vehicle was owned by the 2[nd] **MACA.No.652 OF 2013** **7** respondent and insured with the 3[rd] respondent. Ext.A3 wound certificate and Ext.A10 discharge card substantiates that the 1[st] petitioner had suffered serious injuries in the accident. Ext.C1 disability certificate issued by the Medical Board of the T.D.Medical College, Alappuzha proves that the 1[st] petitioner has a permanent disability of 20%. Ext.C1 has been proved by PW2. 11. The question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable? 12. The 1[st] petitioner had claimed that he was an autorickshaw driver by profession and earning a monthly income of Rs.5000/-. The Tribunal fixed the notional income of the 1[st] petitioner at Rs.3,500/- per month. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236] and in **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd** [(2014) 2 SCC 735], the Hon'ble Supreme Court has fixed the notional **MACA.No.652 OF 2013** **8** income of a coolie worker in year 2004 at the rate of Rs.4,500/- per month and that of a vegetable vendor at the rate of Rs.6,500/- per month in the year 2006, respectively. Similarly in **Pushkar Mehara v. Brij Mohan Kushwaha [** (2015) 12 SCC 688], the Hon'ble Supreme Court has fixed the notional income of a skilled labour/technical supervisor at Rs.7,000/- per month. ## Notional Income 14. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decisions and considering the fact that the 1[st] petitioner was a driver by profession and the accident occured in the year 2005, I am of the considered opinion that the petitioner's notional income can safely be fixed, as claimed in the petition, at Rs.5,000/- per month Loss of earning 15. Even though the petitioner had not claimed **MACA.No.652 OF 2013** **9** any amount under the head 'loss of earnings', in light of the law laid down by the Hon'ble Supreme Court in **Pranay Sethi (** supra), I am of the considered opinion that the 1[st] petitioner is entitled for compensation under the head 'loss of earning'. 16. It is proved that the petitioner was hospitalised for a period of 50 days. In such circumstances, the 1[st] petitioner was not in a position to go for work for a period of 50 days. In view of the refixation of the notional income of the 1[st] petitioner at Rs.5000/- per month, I hold that the 1[st] petitioner is entitled for compensation under the head 'loss of earning'. Hence I award compensation under the head 'loss of earning' at Rs.20,000/-. ## Pain and suffering 17. Even though the petitioners had claimed an amount of Rs.1,00,000/- under the head 'pain and sufferings', the Tribunal had only awarded an amount of Rs.15,000/-. It is proved by Exts.P3 wound **MACA.No.652 OF 2013** **10** certificate and A10 discharge card read with Ext.C1 that the 1[st] petitioner had suffered fractures as well as a subdural hemorrhage and has 20% permanent disability. He was treated as an inpatient for a period of 50 days. Therefore, I am of the considered opinion that the 1[st] petitioner is entitled for enhancement of compensation under the head 'pain and suffering' by a further amount of Rs.25,000/-. Accordingly, I re-fix the quantum of compensation under the head 'pain and sufferings' at Rs.40,000/-. Loss due to disability 18. In view of the re-fixation of the notional income of the 1[st] petitioner, the fact that he was 42 years of age, adopting the relevant multiplier 14 and going by the parameters laid down by the Hon'ble Supreme Court, I hold that the petitioner is entitled for compensation under the head 'loss due to permanent disability' at Rs.1,68,000/-, instead of Rs.1,17,600/- fixed by the Tribunal. **MACA.No.652 OF 2013** **11** ## Other heads of claim 19. With respect to other heads of claim, namely, cost of medicines, bystander expenses and transportation charges, I find that the Tribunal has awarded reasonable and just compensation. 20. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am of the considered opinion that the 1[st] 1[st] appellant/1st petitioner is entitled to enhanced compensation as modified and re-calculated above, and given in the table below for easy reference. **MACA.No.652 OF 2013** **12** |Sl.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transportation charges|2,500|2,500| |2|Cost of medicines|28,215|28,215| |3|Bystander expenses|5,000|5,000| |4|Compensation for disability|1,17,600|1,68,000| |5|Compensation for pain and<br>suffering|15,000|40,000| |6|Loss of earning|---|20,000| |7|Total<br>2,63715 – 1,68,315 =<br>95,400|1,68,315<br>======|2,63715<br>======| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.95,400/-( Rupees Ninety five thousand four hundred only ) with interest at the rate of 7.5% per annum on the enhanced compensation from the date of petition till the date of realisation excluding the delay for a period of 290 days in filing the appeal and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The disbursement of the **MACA.No.652 OF 2013** **13** additional compensation to the 1[st] appellant/1st petitioner shall be done in accordance with law. **Sd/-** **C.S.DIAS** ma/26.3.2021 /True copy/ **JUDGE**