Chami s/o Sankaran (through legal representatives) v. The New India Assurance Co. Ltd. and others

1 MACA.No.952 OF 2008 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **MACA.No.952 OF 2008** **AGAINST THE AWARD IN OPMV 3414/2001 DATED 19-07-2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,TRISSUR** ## **APPELLANT/S:** **1 CHAMI S/O. SANKARAN, VAZHAKKACHIRA HOUSE, P.O.KAVASSERY, VIA. ALATHUR, PALAKKAD DISTRICT. ( DIED) ADDL DEVU, AGED 58 YEARS, W/O.LATE CHAMI,VAZHAKKACHIRA HOUSE, APPELLANT 2 CHUNDAKKAD, P.O.KAVASSERY, VIA. ALATHUR, PALAKKAD DISTRICT.** **ADDL PRIYA, AGED 41 YEARS, D/O.LATE CHAMI,VAZHAKKACHIRA APPELLANT 3 HOUSE,CHUNDAKKAD, P.O.KAVASSERY, VIA. ALATHUR, PALAKKAD DISTRICT ADDL PREETHA,AGED 38 YEARS,D/O.LATE CHAMI,VAZHAKKACHIRA APPELLANT 4 HOUSE,CHUNDAKKAD, P.O.KAVASSERY, VIA. ALATHUR, PALAKKAD DISTRICT ADDL PRAMOD.C, AGED 26 YEARS, S/O.LATE CHAMI,VAZHAKKACHIRA APPELLANT 5 HOUSE,CHUNDAKKAD, P.O.KAVASSERY, VIA. ALATHUR, PALAKKAD DISTRICT (LEGAL REPRESENTATIVES OF DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 IN THE APPEAL AS PER THE ORDER DATED 26.3.2021 IN IA.1/2021 IN MACA 952/2008) BY ADVS. SRI.P.V.CHANDRA MOHAN SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT/S:** **1 K.GOPAN UNNI,THE MANAGING PARTNER, M/S.VISHNU PACKERS,, G.K.SQUARE, KURUCHI, COIMBATORE (DELETED). 2 VELUSWAMY,S/O. RANGASWAMY COUNTER,VISHNU PACKERS, VEERAPPA COUNTER ROAD, P.O.ELOOR,, KINATTUKADAVU, COIMBATORE.(DELETED) (RESPONDENT NOs 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 17/12/2013 IN IA NO. 3410/13 IN MACA 952/08) 3 THE NEW INDIA ASSURANCE CO.LTD. REPRESENTED BY DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD, PALACE ROAD, THRISSUR. R3 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA.No.952 OF 2008 ## **C.S.DIAS, J.** ## **====================== MACA No.952 of 2008 ====================== Dated this the 8[th] day of April, 2021.** ## **JUDGMENT** The petitioner in OP (MV) No.3414 of 2001 on the file of the Motor Accidents Claims Tribunal, Thrissur had preferred the appeal. Pending the appeal, the original appellant died and his legal representatives were impleaded as additional appellants 2 to 5. The 3rd respondent - Insurance Company - in the claim petition is the sole respondent in the appeal. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioner 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 a motor accident that took place on 14.06.2001. 3. The case of the petitioner in brief, is that, on 3 MACA.No.952 OF 2008 14.06.2001 while he was travelling in a tempo trax vehicle bearing registration No.KL-07/H-7164 on Thrissur – Palakkad public road, when the vehicle reached Erimayur, another tempo vehicle bearing registration No.TN-37/S- 5907(offending vehicle) driven by the second respondent, in a rash and negligent manner, hit the vehicle in which the petitioner was travelling. The petitioner sustained serious injuries and was taken to the Government Hospital, Alathur and, thereafter, to the Medical College Hospital, Thrissur. He was treated as an inpatient in three spells for the periods from 14.06.2001 to 25.07.2001, 27.09.2001 to 18.10.2001 and from 21.03.2003 to 09.04.2003. The accident occurred due to the rash and negligent driving of the 2nd respondent. The 1st respondent was the owner and the 3rd respondent was the insurer of the offending vehicle. Therefore, respondents 1 to 3 were jointly and severally liable to pay the compensation, which the petitioner quantified at Rs.1,81,000/- 4. The respondents 1, 2 and 5 were set ex parte. 4 MACA.No.952 OF 2008 5. The third respondent filed a written-statement admitting that the offending vehicle was insured with it. However, the 3rd respondent denied that it was liable to pay compensation, as the accident was not caused due to negligence on the part of the 2nd respondent. 6. The 6th respondent filed a written statement admitting that the vehicle in which the petitioner was travelling was insured with it. However, the said respondent was not liable to pay compensation, as the accident was caused not due to the negligent driving by the 5th respondent. 7. The petitioner produced and marked Exhibits A-1 to A-9 in evidence. He also examined PW1 - the Doctor who issued Exhibit A-7 disability certificate. 8. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by awarding an amount of Rs.84,800/- with interest at the rate of 7% per annum from the date of petition till the date of actual payment and proportionate costs to be paid by the 3rd 5 MACA.No.952 OF 2008 respondent. ## 9. The comparative table of compensation that was claimed by the petitioner and that was awarded by the ## Tribunal is as follows:- |SI.<br>No|Head under which<br>compensation is claimed|Amount claimed<br>(in rupees)|Amount allowed<br>(in rupees)| |---|---|---|---| |1|Loss of earning|21,000/-|10,000/-| |2|Partial loss of earning|12,000/-|Nil| |3|Transport to hospital|3,500/-|1,500/-| |4|Extra nourishment|2,500/-|1,000/-| |5|Damage to clothing and<br>articles|1,000/-|500/-| |6|Medical expenses|10,000/-|4,000/-| |7|Personal attendants (bystander<br>expenses)|3,500/-|3,000/-| |8|Future medical expenses|7,500/-|Nil| |9|Compensation for pain and<br>sufferings|20,000/-|10,000/-| |10|Compensation for continuing or<br>permanent disability|1,00,000/-|46,800/-| |11|Compensation for the loss of<br>earning power||| |12|Compensation<br>for<br>disfigurement||Nil| |13|Compensation for loss of<br>amenities of life||8,000/-| |14|Compensation for shortened<br>expectancy of life||Nil| ||Total amount|1,81,000/-|84,800/-| ## 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 11. In fact, without noticing that the original appellant had died during the pendency of the appeal, 6 MACA.No.952 OF 2008 this Court by judgment dated 2.12.2020 disposed the appeal by enhancing the compensation. However, on an application filed by the appellants 2 to 5, this Court recalled the judgment by order dated 26.3.2021 and impleaded the additional appellants 2 to 5 as the legal representatives of the deceased first appellant. Thereafter, the appeal was re-heard. 12. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 13. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable? 14. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal 7 MACA.No.952 OF 2008 standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. ## **Assessment of Disability** 15. Admittedly, the petitioner met with the accident on 14.06.2001. He was aged 48 years at the time of accident. He was a daily labourer. The petitioner had claimed that he was earning an amount of Rs.3,500/- per month. Exhibit A-6 discharge summaries substantiate that the petitioner underwent treatment in three spells from 14.06.2001 to 25.07.2001, 27.09.2001 to 18.10.2001 and 21.03.2003 to 09.04.2003 i.e. for a total period of 84 days. Exhibit A-7 disability certificate evidences that the petitioner had a complete ulnar nerve injury with claw deformity of ring and little fingers. The PW1 has certified that the petitioner has a permanent physical disability of 25% as per the Brides schedule. 16. The Tribunal after appreciating the materials on record, particularly Exhibit A-7 disability certificate, and after directly seeing the petitioner, reassessed the 8 MACA.No.952 OF 2008 disability of the petitioner at 15%. 17. The learned counsel for the appellants argued that the assessment made by the Tribunal is erroneous and untenable. He contended that the petitioner was a daily labourer and had sustained a serious injury on his right hand, therefore, the petitioner was disabled from carrying on with his avocation. He relied on the decision of the Hon'ble Supreme Court in **Raj Kumar v. AjayaKumar** [2011(1) KLT 620 SC] and argued that the Tribunal ought to have accepted the finding of PW1 that the claimant had a disability of 25%. 18. On the contrary, the learned counsel appearing for the respondent contended that even going by the ratio in Raj Kumar's case, PW1 ought to have assessed the disablement percentage of the specific limb and then made an assessment as to the entire body, which has not been done in Exhibit A-7. Undisputedly, PW-1 in his cross examination has admitted that he has not made a separate assessment of the disability in Exhibit A-7. Therefore, the assessment made by the Tribunal is 9 MACA.No.952 OF 2008 correct. Moreover, an injury on the ulnar nerve would not cause permanent disability to a person. Hence, the assessment made by the Tribunal may not be disturbed. ## **Disability Certificate** 19. The crucial aspect in this appeal is whether the disability assessed by the Tribunal is correct or not? 20. It is an admitted fact that PW1 was not the Doctor who treated the claimant. The relevant period of treatment was from 14.06.2001 to 09.04.2003, in three spells. Exhibit A-7 has been issued on 27.12.2004 based on discharge cards and Xrays, as deposed by PW1. PW1 has also not assessed the disability of the claimant with specific reference to the right hand, as laid down in the **Raj Kumar** (Supra). Instead, PW1 has assessed the permanent physical disability of the petitioner at 25%. As PW1 was not the Doctor who treated the petitioner and has assessed the disability based on the discharge summaries and X-rays without following the ratio in **Raj Kumar** (Supra), I am of the firm opinion that the disability of the petitioner as fixed by the Tribunal at 10 MACA.No.952 OF 2008 15%, that too after seeing the petitioner, is reasonable and just. I do not find any ground to disturb the said finding. 21. Now coming to the question of compensation awarded by the Tribunal under the other heads of claim in the claim petition, which are also challenged in the appeal. ## **Monthly Income** 22. The petitioner had averred in the claim petition that he was a daily labourer and getting a monthly income of Rs.3,500/-. However, the Tribunal has taken his notional income at Rs.2,000/- per month. 23. The law in respect of notional income is well settled by the decisions of the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236] and **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd.** [(2014) 2 SCC 735]. The Hon'ble Supreme Court in **Ramachandrappa** (supra) has fixed the notional income of a coolie worker in the year 2004 11 MACA.No.952 OF 2008 @ Rs.4,500/- per month. In **Syed Sadiq** (supra), the Hon'ble Supreme Court fixed the notional income of a vegetable vendor in the year 2006 @ Rs.6,500/- per month. 24. This Court in **Soman vs. Jinesh James and others** [ILR 2020 (3) Kerala 1003] has fixed the notional income of a coolie worker in the year 2010 at Rs.7,500/per month. 25. Going by the parameters laid down in the aforecited decisions and considering the fact that the petitioner was a coolie worker and that the accident occurred in the year 2007, I am of the considered opinion that the amount of Rs.3,500/-, as claimed by the petitioner in the claim petition, can be fixed as his notional monthly income. Therefore, I re-fix the notional monthly income of the petitioner at Rs.3,500/- instead of Rs.2,000/-. ## **Future Prospects** 26. It is seen that the Tribunal has failed to award compensation under the head future prospects. The law 12 MACA.No.952 OF 2008 has been categorically laid down by the Hon'ble Supreme Court in **Syed Sadiq** (supra), **Raj Kumar vs Ajay Kumar** [2011 (1) KLT 620(SC)] and **Pappu Deo Yadav vs. Naresh Kumar and others** (Civil Appeal No.2567/2020), that the injured has to be placed in the same position as prior to the time of accident. Going by the law laid down in the aforesaid decisions, I am of the definite opinion that the petitioner is entitled for future prospects. Considering that the petitioner was aged 48 years at the time of the accident and the multiplier being '13', I fix future prospects at 25% on the loss due to disability. ## **Bystander Expenses** 27. It is on record that the petitioner was in hospital for a period of 84 days in the three spells as mentioned above. Therefore, I hold that the petitioner needed the assistance of a bystander for the period of 84 days. Accordingly, I fix the bystander expenses at Rs.100/- per day. In the said circumstances, the bystander expenses is enhanced from Rs.3000/- to Rs.8,400/-. 13 MACA.No.952 OF 2008 ## **Transportation Expenses** 28. The petitioner had gone to the hospital on several occasions during the period from 14.06.2001 to 09.04.2003. He had claimed transportation expenses at Rs.3,000/-, for which the Tribunal awarded Rs.1,000/only. I find that Rs.3,000/- claimed by the petitioner is reasonable and just. Hence, I re-fix the compensation under the said head at Rs.3,000/- ## **Loss of Earnings** 29. Exhibit A-6 discharge summaries prove that the petitioner had undergone treatment for nearly 22 months from 14.06.2001to 09.04.2003 and that he was an inpatient for nearly 84 days. Being a coolie worker, certainly he had lost his earning power for the period of two years. The Tribunal has taken the loss of earning power only for a period of five months, which I hold is on the lower side. As the petitioner was under treatment for twenty two months, I enhance the loss of earning power from five months to twenty two months. In the said circumstances, considering the income of the petitioner, 14 MACA.No.952 OF 2008 I re-fix the compensation under the head 'loss of earnings' at Rs.77,000/-. ## **Other heads of claim** 30. With respect to the amounts claimed under the other heads, namely, (i) clothing, (ii) extra nourishment, (iii) medical expenses and pain and sufferings, I find that the Tribunal has awarded reasonable and just compensation. Therefore, I do not find any reason to enhance the compensation under the above heads of claim. 31. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the firm opinion that the appellants are entitled for enhancement of the amounts as modified and recalculated above, and given in the table below for easy reference. 15 MACA.No.952 OF 2008 |SI.<br>No|Head under which<br>compensation is claimed|Amount<br>claimed (in<br>rupees)|Amount<br>allowed (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---|---| |1|Loss of earning|21,000/-|10,000/<br>-|77,000/<br>-| |2|Partial loss of earning|12,000/-|Nil|Nil| |3|Transport to hospital|3,500/-|1,500/-|3,000/-| |4|Extra nourishment|2,500/-|1,000/-|1,000/-| |5|Damage to clothing and<br>articles|1,000/-|500/-|500/-| |6|Medical expenses|10,000/-|4,000/-|4,000/-| |7|Personal<br>attendants<br>(bystander expenses)|3,500/-|3,000/-|8,400/-| |8|Future medical expenses|7,500/-|Nil|Nil| |9|Compensation for pain and<br>sufferings|20,000/-|10,000/-|10,000/-| |10|Compensation<br>for<br>continuing or permanent<br>disability|1,00,000/-|46,800/-|1,02,375/-| |11|Compensation for the loss<br>of earning power|||Nil| |12|Compensation<br>for<br>disfigurement||Nil|Nil| |13|Compensation for loss of<br>amenities of life||8,000/-|8,000/-| |14|Compensation<br>for<br>shortened expectancy of<br>life||Nil|Nil| ||Total amount|1,81,000/-|84,800/-|2,14,275/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.1,29,475/- (Rupees One lakh Twenty Nine Thousand Four Hundred Seventy Five only) with interest at the rate of 7% per annum from the date of petition till the date of 16 MACA.No.952 OF 2008 realisation with proportionate costs. The respondent/the 3rd respondent shall deposit the enhanced compensation awarded in this appeal with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The appellants 2 to 5 would be at liberty to move the Tribunal for withdrawal of the deposited amount, which shall be disbursed to them in equal shares. **sd/-** Sks/8.4.2021 **C.S.DIAS JUDGE**