Balakrishnan v. UMMER and A.P. Somasundaran and New India Assurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943 ``` ## `MACA NO. 935 OF 2011` ``` AGAINST THE AWARD DATED 09.02.2010 IN OP(MV)NO.815/2007 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## `APPELLANT/PETITIONER:` ``` BALAKRISHNAN, AGED 47, S/O. THEYYON, THURUTHIYIL THAZHE HOUSE, CHELIYA POST, KOZHIKODE. ``` ``` BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1UMMER, S/O. AMMED KOYA, 4/111, THAMPILALI HOUSE, CHELANNUR POST, KAKKODI WEST, KOZHIKODE-673611. ``` ``` 2A.P. SOMASUNDARAN, S/O. NARAYANA KURUP, AMBALAPRAMBIL HOUSE, NELLIKODE POST, KOZHIKODE-673016. ``` ``` 3NEW INDIA ASSURANCE CO. LTD. SILVER PLAZA BUILDING, I.G.ROAD, KOZHIKODE-673004. ``` ``` BY ADV SRI.RENIL ANTO KANDAMKULATHY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.935/2011 -:2:- Dated this the 3[rd] day of February,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.815/2007 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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 25.07.2006. He had averred in the claim petition that, on the above said day, while he was walking along the Kozikode-Kannur road, a bus bearing registration No.KL-11-R-3579, driven by the first respondent in a rash and negligent manner, hit the appellant. The appellant sustained multiple injuries, including a fracture of the frontal bone left side root of the orbit, fracture of the base of M.A.C.A.No.935/2011 -:3:- the mandble. He was treated as an inpatient for a period of 33 days in two spells at the Medical College Hospital, Calicut. The bus was owned by the first respondent and insured with the third respondent. The appellant was a coolie worker by profession and was earning a monthly income of Rs.6,000/-. Hence, the appellant claimed a compensation of Rs.2,19,000/-, from the respondents, which claim was limited to Rs.2,00,000/-. 3. The respondent Nos.1 and 2 did not contest the proceeding. 4. The third respondent filed a written statement admitting that the bus had a valid insurance coverage. However, the third respondent denied that there was any negligence on the part of the second respondent. The third respondent also disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked M.A.C.A.No.935/2011 -:4:- Exts.A1 to A7 series in evidence. The disability certificate issued by the Medical Board attached to the Medical College Hospital, Calicut, was marked as Ext.C1. 6. The Tribunal, after analysing the pleadings and material on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,95,951/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Smt. M. Manju the learned counsel appearing for the appellant/petitioner and Sri. Renil Anto Kandamkulathy, the learned counsel appearing for the third respondent-insurer. 9. The sole point that emerges for consideration in the appeal is whether the quantum of compensation M.A.C.A.No.935/2011 -:5:- awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A1 copy of the First Information Report (FIR) and First Information Statement(FIS) read with the averments in the claim petition prove that the accident occurred due to the negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the bus. The respondents have not let in evidence to discredit Ext.A1 and controvert the averments in the claim petition. Similarly, the third respondent has not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income:** 11. The appellant had claimed that he was a coolie worker by profession and earning a monthly M.A.C.A.No.935/2011 -:6:- income of Rs.6,000/-. However, the Tribunal, for the want of materials, has fixed the notional monthly income of the appellant at Rs.2,500/-. 12. In **Ramachandrappa v. Manager, Royal** **Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon’ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the appellant at Rs.5,500/- per month. **Loss of earnings:** 14. In the light of Ext.A2 wound certificate and Exts.A3 to A6 CT scan reports read with Ext.C1 disability certificate, it is proved that the appellant had M.A.C.A.No.935/2011 -:7:- sustained multiple injuries, including a fracture of the frontal bone left side root of the orbit and fracture of the base of the mandble. The scan report shows that he had a temporal lobe contusion, pranchymal hematol. He was treated as an inpatient in two spells for a period of 33 days i.e., from the date of accident till 01.07.2008. Therefore, necessarily, the appellant being a coolie worker by profession was indisposed for a period of five months. 15. In view of the re-fixation of notional monthly income of the appellant at Rs.5,500/-, I award him a further amount of **Rs.27,500/-** towards ‘loss of earnings’, instead of Rs.3,500/- awarded by the Tribunal. ## **Disability:** 16. The disability of the appellant was assessed M.A.C.A.No.935/2011 -:8:- by a Medical Board, pursuant to the orders of the Tribunal. The Medical Board as per Ext.C1 has certified that the appellant has a permanent disability of 40%. Ext.C1 was accepted by the Tribunal and the appellant’s permanent disability/functional disability was fixed at 40%. I confirm the said finding. 17. In **Pappu Deo Yadav v. Naresh Kumar and Ors.** [AIR 2020 SC 4424], **Jagdish vs. Mohan and others** [(2018)4 SCC 571] and **Antony @ Antony Sami v. KSRT** [(2020) SCC Online SC 493], the Hon’ble Supreme Court has categorically held that in the case where an injured claimant has suffered serious injuries, he is also entitled to ‘future prospects’, because he would be impaired from carrying on his avocation. 18. In the instant case, going by the severe nature of injuries suffered by the appellant, as evident from Ext.C1, and his functional disability being 40%, I am of the view that the appellant is entitled to ‘future M.A.C.A.No.935/2011 -:9:- prospects’. 19. The appellant was aged 43 years at the time of the accident. Going by the principles laid down in **Sarla Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)] and **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)], the appellant is entitled to ‘future prospects’ at 25%. ## **Multiplier:** 20. As the appellant was aged 43 years at the time of accident, in view of the law laid down in **Sarla Verma** (supra), the relevant multiplier to be adopted is '14'. ## **Loss due to disability:** 21. On a consideration of the above-mentioned factors namely; the monthly income of the appellant at Rs.5,500/-, his functional disability at 40%, ‘future prospects’ at 25% and the multiplier at '14', I award the appellant a compensation for loss due to disability M.A.C.A.No.935/2011 -:10:- at **Rs.4,62,000/-,** instead of Rs.1,68,000/- awarded by the Tribunal. ## **Bystander expenses and Extra Nourishment:** 22. The Tribunal has awarded only a meager amount of Rs.1,000/- under the head ‘bystander expenses’. Taking note of the fact that the appellant was treated as an inpatient for a period of 33 days in two spells, I award him an amount of Rs.400/- per day towards ‘bystander expenses’ which works out to **Rs.13,200/-** and Rs.200/- per day for a period of 33 days towards extra nourishment which comes to **Rs.6,600/-.** ## **Pain and sufferings and Loss of Amenities:** 23. Taking into account the grievous injuries sustained by the appellant, that he was indisposed for a period of five months and that he has suffered a functional disability of 40%, I award him a further amount of Rs.6,000/- under the head ‘pain and sufferings’ and an amount of Rs.20,000/-under the M.A.C.A.No.935/2011 -:11:- head ‘loss of amenities’. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 25. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to 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. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal<br>(in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|3,500|27,500| |2|Transport|500|500| |3|Clothing|500|500| |3|Bystander expense|1,000|13,200| ||Extra nourishment|Nil|6,600| M.A.C.A.No.935/2011 -:12:- |4|Medical expense|8,451|8,451| |---|---|---|---| |5|Pain and sufferings|14,000|20,000| |6|Loss of amenities|Nil|20,000| |8|Loss<br>due<br>to<br>disability|1,68,000|4,62,000| |**Total**||**1,95,951**|**5,58,751**| 25. Even though the appellant had claimed only an amount of Rs.2,00,000/as compensation, taking note of the serious injuries sustained to him and the - law laid down in the afore cited decisions, I have awarded him ‘future prospects’ at the rate of 25% and - also re fixed his notional income, following the principles laid down in **Ramachandrappa** (supra). Accordingly, I have awarded him more compensation than what is claimed in the claim petition. The said course is admissible in the light of the law laid down in **Nagappa vs. Gurudayal Singh** [2003 (1) KLT 115(SC)] and **Rajesh vs. Rajbir Singh** [2013 (3) KLT M.A.C.A.No.935/2011 -:13:- ## 89 (SC)]. In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.3,62,800/-** with interest the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.10,000/-. The third respondent/insurer 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. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law, after deducting his liability towards balance court fee. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/03.02.22 //True copy/ P.A.To Judge