Bijeesh v. Lucy Sebastian and ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943 MACA NO. 2500 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 2003/2006 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR APPELLANT/S:** BIJEESH, S/O.THAMBI, RESIDING AT KURUPPATH HOUSE, KZHIMBRAM, EDAMUTTAM, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD ## **RESPONDENT/S:** 1 SMT. LUCY SEBASTIAN RESIDING AT PORATHUR HOUSE, THAYYUR, THRISSUR 680 584. 2 JASHIM S/O.MOIDUNNY, RESIDING AT INJIKKALAYIL HOUSE, CHIRAKKAL P.O. KATTAKAMPAL. THRISSUR 680 544. 3. THE ORIENTAL INSURANCE COMPANY LTD NO.7, UTHAMAR GANDHI SALAI, 2ND FLOOR, ROSY TOWERS, NUNGAMBAKKAM, CHENNAI-400091. BY ADVS. SMT.P.K.PRIYA SRI.VPK.PANICKER R3 SRI.T.K.VIPINDAS **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2500 of 2012 ## **C.S.DIAS, J.** ## **====================== MACA No.2500 of 2012** **====================== Dated this the 5[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.2003/2006 on the file of the Motor Accident Claims Tribunal, Thrissur. 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 4.4.2006. It was his case that, on the above said date, while he was travelling in a jeep bearing registration No.KLK-3653 along with his classmates through Thrissur-Kunnamkulam public road, a bus bearing registration No.KL-08-E-4040 (bus), driven by the second respondent in a rash and negligent manner, hit the jeep. In the accident, the appellant sustained serious injuries 3 MACA No.2500 of 2012 including a fracture of patella left and fracture of left humerus. He was treated at the West Fort High Tech Hospital, Thrissur from 4.4.2006 to 25.4.2006. The appellant was a sixth semester B.Tech student in Vidya Academy of Science and Technology, Thalakkottukara. , Thrissur. The first respondent was the owner and the third respondent was the insurer of the bus. Hence, the appellant claimed a compensation of Rs.4,96,500/- from the respondents, which claim was limited to Rs.4,50,000/-. 3. The co-passengers in the jeep – the classmates of the appellant also filed OP(MV) Nos 2004, 2006 and 2008 of 2006 before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceedings in all the claim petitions. 5. The third respondent/insurer had filed separate written statements in all the claim petitions. The third respondent admitted that the bus had a valid insurance coverage. Nevertheless, the third respondent contended 4 MACA No.2500 of 2012 that the accident occurred due to the negligence of the driver of the jeep – the petitioner in OP(MV) 2008/2006. The third respondent also disputed the age, income and occupation of each of the petitioners. 6. The Tribunal consolidated and jointly tried the four claim petitions. 7. One of the petitioners in OP(MV) 2004/2006 and a witness were examined as PWs 1 and 2 and Exts A1 to A37 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, by permitting the appellant to realise from the third respondent an amount of Rs.1,74,500/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.T.C Suresh Menon, the learned 5 MACA No.2500 of 2012 counsel appearing for the appellant/petitioner and Sri.V.P.K Panicker, the learned Senior Counsel appearing for the third respondent/insurer. 11. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Ext A4 final report filed by the Police proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Ext A4 final report. The third respondent has also 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. 6 MACA No.2500 of 2012 ## **Notional Income** 13. The appellant had claimed that he was a Sixth Semester Engineering student. He had not fixed his notional income. 14. A Division Bench of this Court in **National** **Insurance Co Ltd v. Fathimath Zuhara [2016 (3) KLT** **459]** has fixed the notional income of an engineering student in the year 2005 at Rs.9,000/-. 15. Following the yardstick in the aforecited decision and considering the fact that the accident in the instant case also happened in the year 2006, I am of the firm opinion that the notional monthly income of the appellant can also be fixed at Rs.9,000/-. ## **Multiplier** 16. Admittedly, the appellant was aged 20 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '18'. 7 MACA No.2500 of 2012 ## **Disability** 17. The appellant had produced Ext A9 disability certificate to establish that he has a permanent disabiity to his hip at 26.49% and whole-body disability at 9.27%. However, the Tribunal for the reason that the Doctor who issued Ext A9 was not examined scaled down and fixed the disability of the appellant at 4%. 18. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that in case the Tribunal is not satisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured-claimant to a duly constituted Medical Board. It is also observed, that what needs to be looked into in an injury claim is the functional disability of the injured-claimant. 19. In the instant case, considering the fact that Ext A9 was marked in evidence without any demur or protest from the respondents and the same was acted upon by the 8 MACA No.2500 of 2012 Tribunal, but the percentage of disabilty was scaled down without any reason, I am of the firm opinion that the appellant's functional disability can be fixed at 9%. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.9,000/-, the multiplier at 18 and his functional disability at 9%, I award the appellant an amount of **Rs.1,74,960/-** towards loss due to disability. ## **Loss of earnings** 21. The Tribunal has found that the appellant was indisposed for a period of three months, which I confirm. However, in view of the refixation of the notional monthly income of the appellant at Rs.9,000/-, I hold that the appellant is entitled to an amount of **Rs.27,000/-** towards loss of earnings, instead of Rs.9,000/- awarded by the Tribunal. 9 MACA No.2500 of 2012 ## **Other heads of compensation** 22. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|9,000/-|27,000/-| |2|Transportation expenses|3,000/-|3,000/-| |3|Personal<br>expenses<br>Bystander expenses|4,200/-|4,200/-| |4|Medical expenses|1,10,265/-|1,10,265/-| |5|Pain and sufferings|12,000/-|12,000/-| |6|Loss of amenities etc|10,000/-|10,000/-| |7|Loss due to disability|25,920/-|1,74,960/-| ||Total|1,74,385/-<br>rounded off<br>to 1,74,500/-|3,41,425/-| 10 MACA No.2500 of 2012 In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.1,66,925/rounded off to Rs.1,67,000/-** (Rupees One Lakh Sixty Seven Thousand only) with interest at the rate of 7% per annum on the enhanced compensation from the date of claim petition till the date of realization and a cost of Rs.10,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant, in accordance with law. SD/- sks/5.1.2022 ## **C.S.DIAS, JUDGE**