Bhaskaran s/o Appu v. Oriental Insurance Co. Ltd.

_**MACA. No.3145/2016**_ _**1**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:24742 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` THURSDAY, THE 6[TH] DAY OF MARCH 2025 / 15TH PHALGUNA, 1946 ``` ``` MACA NO. 3145 OF 2016 ``` ``` AGAINST THE AWARD DATED 26.07.2013 IN OPMV NO.972 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD ``` ## **`APPELLANT/PETITIONER:`** ``` BHASKARAN S/O APPU, AGED 36 YEARS, THAZHE VEEDU, CHUNDAKADU, KAVASSERI P.O, PALAKKAD. ``` ``` BY ADV SRI.BABY MATHEW ``` ## **`RESPONDENT/RESPONDENT:`** ``` ORIENTAL INSURANCE CO.LTD. THIRUVAMBADI DEVASWAM BUILDING, 2ND FLOOR, ROUND WEST, THRISSUR, (INSURER OF BUS REG NO KL 8/A C-5004), (POLICY NO 441101/31/2009/5114), (VALID FROM 30-09-2008 TO 29/09/2009) ``` ``` BY ADV SRI.A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**MACA. No.3145/2016**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:24742 ``` _**2**_ _**MACA. No.3145/2016**_ _**3**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:24742`** ## J U D G M E N T Dated this the 6[th] day of March, 2025 The petitioner in O.P.(M.V.) No.972/2010 on the file of the Motor Accident Claims Tribunal, Palakkad is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 7.11.2008. According to the petitioner, on 7.11.2008 at about 6.20 p.m., while he was travelling in a bus driven by the 2[nd] respondent in a rash and negligent manner and as a result of which the bus hit against a lorry and he sustained serious injuries. 3. The 1[st] respondent is the owner, the 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the _**MACA. No.3145/2016**_ _**4**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:24742`** O.P. is Rs.1,00,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimonies of PW1 and PW2 and documentary evidence Exts.A1 to A12 series. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.1,26,746/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by_ _the Tribunal is just and reasonable?_ 9. Heard Sri. Baby Mathew, the learned Counsel appearing for the _**MACA. No.3145/2016**_ _**5**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:24742`** petitioner/appellant, and Sri. A.R. George, the learned Standing Counsel for the 3[rd ] respondent. 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as a Mason, earning Rs. 4,000/- per month, but the Tribunal fixed his monthly income at Rs.3,500/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [2011 (13) SCC 236], the notional income of a coolie, in the year 2008/-.Therefore, the learned counsel prayed for fixing the notional income of the petitioner at Rs6,500./-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. Since the notional income of a coolie, in the year 2008 _**MACA. No.3145/2016**_ **==> picture [57 x 57] intentionally omitted <==** ## _**6**_ ``` 2025:KER:24742 ``` will come to Rs.6,500/-, in order to award just and reasonable compensation, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in **Ramachandrappa (supra)** , the notional income of the petitioner is liable to be fixed as that of a coolie, at Rs.6,500/-. 12. In the accident the petitioner sustained the following injuries: “ _fracture of greater tuberosity of left shoulder.”_ 13. He was treated as inpatient for 18 days. As per Exhibit A11 disability certificate issued by PW1, the petitioner suffered 16% permanent physical disability. The Tribunal, however, scaled down the percentage of disability of the petitioner to 10%, without assigning valid and cogent reasons. The law is settled that, if the Tribunal is not satisfied with the disability certificate produced by the petitioner, the remedy is to refer him to a medical board or higher Authority. (See **Manikantan G. v. Janardhanan Nair and Others** , 2021 (5)KHC 305). Having not done so, the Tribunal was not justified in scaling down the percentage of disability from what is shown in the disability certificate. I do find any _**MACA. No.3145/2016**_ _**7**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:24742`** grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 16%. 14. On the date of accident, the petitioner was aged 30 years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 17, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.297,024/-. 15. Towards loss of earning, the tribunal has awarded only Rs.21,000/- being the income for 6 months @Rs.3,500/- and Rs.10,500/towards 'partial loss of earnings'. Considering the nature of the injuries sustained and the percentage of disability suffered by the petitioner, the petitioner might have lost income at least for a period of 9 months. Therefore, towards 'loss of earning' and 'partial loss of earning' the petitioner is entitled to get a sum of Rs.58,500/- (6500x 9 months). 16. Towards the head ‘pain and sufferings’, the Tribunal has _**MACA. No.3145/2016**_ _**8**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:24742 ``` awarded Rs.10,000/- and towards 'bystander expenses' Rs.1800/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. Towards 'loss of amenities of life' and 'extra nourishment' no compensation was awarded by the Tribunal. 17. The petitioner sustained serious injuries in the accident and was treated as inpatient for 18 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’ and 'bystander expenses' are on the lower side and hence they are enhanced to Rs.50,000/- and Rs.3600/- (200x18) respectively. Similarly, towards the heads 'loss of amenities of life' and 'extra nourishment' and Rs.30,000/- and Rs.3,000/respectively are awarded. 18. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. _**MACA. No.3145/2016**_ _**9**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:24742`** 19. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.4,58,370/- as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal(in Rs.)**|**Amount Awarded in**<br>**Appeal(in Rs.)**| |---|---|---|---| |1|Loss of earning|21,000/-|58,500/-(6500x9)| |2|Partial loss of earning|10,500/-|Nil| |3|Medical expenses|15,246/-|15,246/-| |4|Bystander expenses|1800/-|3600/-| |5|Damage to clothingetc.|250/-|250/-| |6|Transportation|750/-|750/-| |7|Extra nourishment|Nil|3,000/-| |8|Pain and suffering|10,000/-|50,000/-| |9|Compensation for disability|67,200/-|297024/-| |10|Loss of amenities|Nil|30,000/-| ||**Total**|**1,26,746/-**|**4,58,370/-**| ||Enhanced Rs.331624/-||| 20. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.4,58,370/- (Rupees four lakh fifty eight thousand three hundred and seventy only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal, from the date of the petition till deposit/realisation, excluding interest for a period of 935 days, _**MACA. No.3145/2016**_ _**10**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:24742`** the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%) **.** 21. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- C. PRATHEEP KUMAR, JUDGE sou.