Binu C. v. K.R. Robin and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 MACA NO. 168 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 2971/2001 OF IST ADDITIONAL M.A.C.T, KOZHIKODE** ## **APPELLANT/S:** BINU.C, S/O.CHOYIKUTTY, AGED 30 YEARS THANAL PUTHALATH, P.O.MAKKADA,, CHERUKULAM, KOZHIKODE. BY ADV SMT.K.V.RESHMI ## **RESPONDENT/S:** 1 K.R.ROBIN,S/O.K.ROY ROSE VILLA, KUNNUMAL THARA, P.O.CHEVARAMBALAM,, KOZHIKODE., (OWNER & RIDER OF MOTOR CYCLE NO.KL-11/L 7474). 2 NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE II, P.B.NO.611, NOOR COMPLEX,, MAVOOR ROAD, KOZHIKODE., (INSURER OF MOTOR CYCLE NO.KL-11/L 7474). BY ADV SANTHAMMA P.K.-R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.168 of 2010 ## **C.S.DIAS, J. ====================== MACA No.168 of 2010** ## **====================== Dated this the 24[th] day of February 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.2971/2001 on the file of the First Additional Motor Accident 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 sustained to him in an accident on 9.8.2001. It was his case that, on the above said date, while he was travelling pillion on a motorcycle bearing registration No.KL-12/5906 from Mavoor road to Medical College, another motorcycle bearing registration No.KL-11/L 7474 (offending motor cycle), driven by the first respondent, who was also the owner of the offending 3 MACA No.168 of 2010 motorcycle, in a rash and negligent manner, hit the motorcycle on which the appellant was travelling. The appellant fell down and sustained multiple injures including a diffused cerebral oedema with very thin acute subdural haematoma. He was treated as an inpatient at the Baby Memorial Hospital, Kozhikode, for a period of 18 days from 9.8.2001 to 27.8.2001. The offending motorcycle was insured with the second respondent. The appellant was a Sales Representative in Master Systems, Kozhikode and was earning a monthly income of Rs.6,000/-. Hence, the appellant claimed a compensation of Rs.3,15,000/- from the respondents 3. The first respondent did not contest the proceeding and was set ex parte. 4. The second respondent/insurer had filed a written statement admitting that the offending motorcycle had a valid insurance coverage. However, 4 MACA No.168 of 2010 the second respondent contended that the compensation claimed was excessive. 5. The appellant had produced and marked Exts A1 to A6 series in evidence. The disability certificate issued by the Medical College Hospital, Kozhikode was marked as Ext C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the second respondent an amount of Rs.1,76,340/- with interest and cost of Rs.2,000/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Smt.Rashmi.K.V, the learned counsel appearing for the appellant/petitioner and Smt.P.K Santhamma, the learned counsel appearing for the second respondent/insurer. 9. The point that arises for consideration in the 5 MACA No.168 of 2010 appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A1 FIR registered by the City Traffic Police in crime No.1105/2001 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the insurer of the offending motorcycle. The respondents have not let in any evidence to discredit Ext A1 FIR or controvert the pleadings in the claim petition. Therefore, it was the first respondent who was negligent in causing the accident. As the second respondent has not proved that the first respondent had violated the insurance policy conditions, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 11. The appellant had claimed that he was a Sales 6 MACA No.168 of 2010 Representative in a firm at Kozhikode and was earning a monthly income of Rs.6,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.1,500/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the above-mentioned decision and considering the fact that the accident occurred in the year 2001, I re-fix the notional monthly income of the appellant at Rs.3,000/-. ## **Loss of earnings** 14. The Tribunal found that the appellant was indisposed for a period of three months. I confirm the said finding. However, in view of the refixation of the notional monthly income of the appellant at Rs.3,000/-, I 7 MACA No.168 of 2010 award him an amount of **Rs.9,000/-** under the head 'loss of earnings', instead of Rs.4,500/- awarded by the Tribunal. ## **Disability** 15. The appellant had produced Ext C1 disability certificate issued by the Medical Board attached to the Medical College Hospital, Kozhikode. As per Ext CI, the appellant has a functional disability of 25%. The Tribunal has accepted the said assessment. I confirm the said finding. ## **Multiplier** 16. Admittedly, the appellant was aged 22 years at the time of the accident. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation** **[(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '18'. ## **Loss due to disability** 17. Taking into account the above mentioned 8 MACA No.168 of 2010 factors, namely, the notional monthly income of the appellant at 3,000/-, the multiplier at '18' and his functional disability at 25%, I award the appellant an amount of **Rs.1,62,000/-** towards loss due to disability, instead of Rs.76,500/- awarded by the Tribunal. ## **Extra Nourishment** 18. The Tribunal has not awarded any amount under the head ' extra nourishment'. 19. It is proved by Ext A2 discharge summary that the appellant was treated as an inpatient for a period of 18 days from 9.8.2001 to 27.8.2001. 20. On a consideration of the fact that the accident occurred in the year 2001, I award the appellant an amount of Rs.100/- per day for a period of 18 days towards extra nourishment, which amounts to **Rs.1,800/-.** ## **Loss of amenities** 21. The Tribunal has awarded an amount of 9 MACA No.168 of 2010 Rs.12,500/- under the head 'loss of amenities'. I find the amount to be too low. 22. Taking into account that the appellant was treated as an inpatient for a period of 18 days, that he was indisposed for a period of three months and that he has suffered a functional disability of 25%, I award him a further amount of **Rs.12,500/-** under the head 'loss of amenities'. ## **Other heads of compensation** 23. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 24. 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. 10 MACA No.168 of 2010 |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|4,500/-|9,000/-| |2|Transportation expenses<br>damage to clothing|1,500/-|1,500/-| |3|Extra nourishment|Nil|1,800/-| |4|Bystander expenses|1,800/-|1,800/-| |5|Medical expenses|54,540/-|54,540/-| |6|Pain and sufferings|25,000/-|25,000/-| |7|Loss due to disability|76,500/-|1,62,000/-| |8|Loss of amenities etc|12,500/-|25,000/-| ||Total|1,76,340/-|2,80,640/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs1,04,300/-** (Rupees One Lakh Four Thousand Three Hundred only) with interest at the rate of 6% per annum on the enhanced compensation from the date of claim petition till the date of realisation, after deducting interest for a period of 420 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 15.11.2021 in C.M Appln No.1/2010, and 11 MACA No.168 of 2010 a cost of Rs.10,000/-. The second respondent 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 the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant /petitioner, in accordance with law. Sd/- sks/24.2.2022 **C.S.DIAS, JUDGE**