Bright S/O Selvaraj vs Subramanian S/O Arumugan Pillai; Santhosh S/O Nesamony Nanguvilai; United India Insurance Co. Ltd.

MACA NO. 2895 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943 MACA NO. 2895 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1488/2003 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** **APPELLANT/S:** BRIGHT, S/O.SELVARAJ, THEKKETHERUVU,SASTHAMCOIL,ARUMANALLOOR P.O.,, KANYAKUMARI DISTRICT,NOW RESIDING AT KIZHAKKINKARA VEEDU,UNDANCODE,CHERIYAKOLLA P.O.,, THIRUVANANTHAPURAM DISTRICT. BY ADV SRI.R.GOPAN ## **RESPONDENT/S:** 1 SUBRAMANIAN S/O ARUMUGAN PILLAI MELE STREET,UNNAMALAIKADAI P.O.,, KANYAKUMARI DISTRICT. 2 SANTHOSH, S/O.NESAMONY NANGUVILAI,KEEZHEKANJIRACODE,VIRICODE P.O.,, KANYAKUMARI DISTRICT,NOW RESIDING AT PLANKALA PUHTEN VEEDU,CHENKAVILA,, AYIRA P.O.,THIRUVANANTHAPURAM DISTRICT. 3 THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO.LTD.,, THIRUVANANTHAPURAM. BY ADV SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2895 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1488/2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. 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 17.09.2003. It was his case that, on the above said date, while he was pedalling his bicycle from Thittuvila to Nagercoil, a car bearing registration No.TN -74-Y-7677, driven by the 2[nd] respondent in a negligent manner, hit the appellant. The appellant sustained multiple injuries including a compound fracture of the shaft of the femur right and fracture of six teeth of upper jaw. He was treated as an inpatient for a period of 27 days at the Medical College Hospital, Nagarcoil. The car was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The appellant was a coolie MACA NO. 2895 OF 2009 3 worker and was earning a monthly income of Rs.4,000/-. Hence, the appellant had claimed an amount of Rs.3,14,000/- from the respondents, which claim was limited to Rs.3,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding. 4. The 3[rd] respondent had filed a written statement disputing the age, income and occupation of the appellant. It was contended that the accident occurred due to the negligence of the appellant. However, the 3[rd] respondent admitted that the car had a valid insurance coverage. 5. The appellant had produced and marked Exts.A1 to A11 in evidence. The 3[rd] respondent has produced the insurance policy, which was marked as Ext.B1. 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 3[rd] respondent an amount of Rs.76,450/- with interest @ 7.5% per annum from the date of petition till the date of MACA NO. 2895 OF 2009 4 realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri. R.Gopan, the learned counsel appearing for the appellant/petitioner and Sri. P.K. Manojkumar, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and liability** 10. Ext.A3 final report, filed by the Bhoothappandi Police in Crime No.457/2003 proves that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. The respondents did not let in any evidence to discredit Ext.A3 final report. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] MACA NO. 2895 OF 2009 5 respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a coolie worker and was earning a monthly income of Rs.4,000/-. For want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2,000/-. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Ltd.** : **Company** (2011) 13 SCC 236, the Honourable Supreme Court 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 afore-cited decision and considering the fact that the accident occurred in the year 2003, I refix the notional monthly income of the appellant at Rs.4,000/- as claimed in the claim petition. ## **Disability** 14. The disability of the appellant was assessed by MACA NO. 2895 OF 2009 6 a Civil Surgeon attached to the Government Hospital, Parassala, who found that the appellant has a permanent disability of 22%, due to wasting of the muscles of his right leg and thigh by 5 centimeters and that he has shortening of the length of his right leg by 3 centimeters. However, the Tribunal scaled down the disability and fixed it at 10%. 15. In **Rajkumar vs. Ajaykumar** [(2011) 1SCC 343], the Honourable Supreme court has categorically held that in an injury claim, what needs to be looked into is the functional disability of the injured/claimant. 22. In the instant case, undisputedly, the appellant was a coolie worker by profession. He has wasting of the muscles of right leg and thigh by 5 centimeters as well as loss of length of his right leg by 3 centimeters. Certainly, he would be impaired from carrying out his work. Therefore, I hold that he has a functional disability of 20%. ## **Multiplier** 16. The appellant was aged 27 years at the time of MACA NO. 2895 OF 2009 7 the accident. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘17’. ## **Loss of earning capacity** 17. Taking into account the above mentioned factors namely, notional monthly income of the appellant at Rs.4,000/-, his functional disability at 20% and the multiplier at 17, I award the appellant an amount of Rs.1,63,200/- towards ‘loss of earning capacity’, instead of Rs.43,200/- awarded by the Tribunal. ## **Loss of earnings** 18. The Tribunal found that the appellant was indisposed for a period of three months. I confirm the said finding. 19. However, in view of the refixation of the notional monthly income of the appellant at Rs.4,000/-, I award him an amount of Rs.12,000/- towards 'loss of earnings', instead of Rs.6,000/- awarded by the Tribunal. ## **Bystander expenses** 20. It is undisputed that the appellant was treated MACA NO. 2895 OF 2009 8 as an inpatient for the period from 17.09.2003 to 14.10.2003 i.e., for a period of 27 days. However, the Tribunal awarded only an amount of Rs.1,000/- under the head 'bystander expenses'. I find the amount awarded is on the lower side. On a consideration of the fact that the accident occurred in the year 2003, I award the appellant an amount of Rs.3,500/- towards ‘bystander expenses’ i.e., Rs.130/- per day for a period of 27 days. ## **Pain and sufferings and loss of amenities** 21. The Tribunal has awarded the appellant an amount of Rs.12,000/- each under the heads 'pain and sufferings' and 'loss of amenities'. 22. On a consideration of the fact that the appellant was treated as an inpatient for a period of 27 days, that he suffered a functional disability of 20% and that he was indisposed for a period of three months, I award him a further amount of Rs.13,000/- each under the heads ‘pain and suffering’ and ‘loss of amenities’. 23. With respect to the other heads of MACA NO. 2895 OF 2009 9 compensation, I hold that the Tribunal has awarded reasonable and just compensation. 24. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [448 x 397] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 6,000 12,000<br> 2. Transportation expenses 1,000 1,000<br>3. Clothing 250 250<br>4. Bystander expenses 1,000 3,500<br>5. Extra nourishment 1,000 1,000<br>6. Pain and sufferings 12,000 25,000<br>7. Loss of amenities 12,000 25,000<br>8. Loss due to disability 43,200 1,63,200<br>Total 76,450 2,30,950<br>rounded of<br>to<br>Rs.2,31,000<br>**----- End of picture text -----**<br> MACA NO. 2895 OF 2009 10 In the result, the appeal is allowed by enhancing the compensation by an amount of **Rs.1,54,550/-** with interest @ 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 610 days (i.e. the period of delay in filing the appeal and as ordered by this Court on 03.11.2021 in C.M.Appln.No.1/2009) and a cost of Rs.5,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost within a period of 60 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. Sd/- **C.S.DIAS, JUDGE** rkc/17.03.22