Chandrika and Sunil Kumar v. Roby Varghese; National Insurance Co. Ltd; Mary Varghese

1 MACA.No.806 OF 2010 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **MACA.No.806 OF 2010** **AGAINST THE AWARD IN OPMV 1339/2002 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL , NORTH PARAVUR DATED 12.5.2009** ## **APPELLANT/S:** - **1 CHANDRIKA,W/O.KARUNAKARAN KADEPARAMBIL HOUSE, CHERANELLUR,, KOCHI - 34, EKM DIST.** - **2 SUNIL KUMAR, S/O.KARUNAKARAN DO. 3 MINI, W,O.SUDHEER NARAYANAN OALIPARAMBIL HOUSE, EDAPPALLY.** **BY ADVS. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR)** ## **RESPONDENT/S:** |**1**|**ROBY VARGHESE, S/O.VARGHESE**| |---|---| ||**PUTHIYAKULANGARA HOUSE, VALLUVALLY,, KOONAMMAVU**| ||**P.O., EKM DIST.**| |**2**|**NATIONAL INSURANCE CO.LTD**| ||**BRANCH OFFICE, N.PARAVUR P.O., EKM DIST.**| |**3**|**MARY VARGHESE, W/O.VARGHESE**| ||**PUTHIYAKULANGARA HOUSE, KOTTUVALLY, N.PARAVUR P.O.**| ||**EKM DIST.**| ||**R1 BY ADV. SRI.E.M.JOSEPH**| ||**R1 BY ADV. SRI.P.M.ZIRAJ**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2020, THE COURT ON 04-11-2020 DELIVERED THE FOLLOWING:** 2 MACA.No.806 OF 2010 ## **C.S.DIAS, J. ====================== MACA No.806 of 2010** **====================== Dated this the 4[th] day of November, 2020.** ## **JUDGMENT** The appellants were the petitioners 2 to 4 in OP (MV) No.1339 of 2002 on the file of the Motor Accidents Claims Tribunal, North Paravur. The respondents were the respondents 1, 3 and 4 before the Tribunal. The claim petition was filed by the first petitioner before the Tribunal, the late husband of the first appellant and father of appellants 2 and 3, who died on 22.8.2006. The appellants were impleaded as additional petitioners 2 to 4 in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. It was the case of the petitioners before the Tribunal that, on 17.9.2002, while the first petitioner was pedaling his bicycle from 3 MACA.No.806 OF 2010 Chettibhagom to Cheranelloor on the Paravur - Ernakulam National Highway, he was hit by a light goods carriage bearing registration No.KL-7/K8206, driven by the first respondent in a rash and negligent manner. The second respondent was the owner of the vehicle and the third respondent was the insurer of the vehicle. The first petitioner was a fish merchant earning a monthly income of Rs.3,000/-. Due to the injuries sustained in the accident, the first petitioner suffered total permanent disability with Quadriplegia. He was paralyzed and needed assistance of a skilled nurse. He was treated at AIMS, Kochi, and thereafter, at the Kottayam Medical College, as an inpatient from 17.9.2002 to 29.9.2002. Accordingly, the first petitioner claimed an amount of Rs.6,00,000/- as compensation under various heads. 3. The second respondent, the owner of the vehicle, filed a written statement contending that he had sold the vehicle to one Mary Varghese, who was subsequently impleaded as the fourth 4 MACA.No.806 OF 2010 respondent. 4. The third respondent filed a written statement, inter alia, admitting that the vehicle was insured with the third respondent for the period from 4.11.2001 to 6.11.2002. But, the vehicle did not have a valid fitness certificate, which amounted to violation of the policy conditions. 5. The second petitioner was examined as PW1 and Exts A1 to A6 were marked through her in evidence. Exts B1 and B2 were marked on the side of the third respondent. 6. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by granting the petitioners 2 to 4 an amount of Rs.1,43,000/- as compensation with interest at the rate of 7% per annum from 29.11.2002 till the date of realization to be realised from the respondents 1, 3 and 4. However, the third respondent was directed to pay the amount and execute the award against the fourth respondent. 5 MACA.No.806 OF 2010 ## 7. The comparative table of compensation that was claimed by the petitioners and that was awarded by the Tribunal is as follows:- |SI<br>.<br>N<br>o|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Loss of earnings|36,000/-|12,000/-| |2|Transport to hospital and<br>back to home|5,000/-|5,000/-| |3|Damage to cloth and articles|1,000/-|Nil| |4|Expense for treatment|50,000/-|Nil| |5|Bystander expenses|4,000/-|Nil| |6|Expenses for extra nursing by<br>skilled nurse|50,000/-|Nil| |7|Extra nourishment|5,000/-|Nil| |8|Compensation for pain and<br>sufferings|50,000/-|20,000/-| |9|Compensation for loss of<br>amenities and comfort|70,000/-|Nil| |10|Compensation<br>for<br>total<br>disablement|3,96,000/-|96,000/-| |11|Loss of estate|5,000/-|Nil| |12|Compensation for loss of<br>dependency|25,000/-|Nil| |13|Other heads|Nil|10,000/-| ||Total|6,97,000/-|1,43,000/-| 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/ petitioners 2 to 4 have filed the appeal. 9. Heard the learned counsel appearing for the appellants and the learned counsel appearing 6 MACA.No.806 OF 2010 for the second respondent in the appeal. 10. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 11. 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 standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 12. The first petitioner met with the accident on 17.9.2002. He was 54 years at the time of accident. He had claimed that he was a fish merchant getting a monthly income of Rs.3,000/-. It is on record, as evidenced by Exts A3 and A4, 7 MACA.No.806 OF 2010 that the first petitioner sustained cervical spine injury avulsion fracture C3 with Quadriplegia with facial injury. Accordingly, the Tribunal assessed his permanent disability at 100%. The Tribunal also held that the permanent disability had affected the future earning power of the first petitioner for a period of four years as he ultimately died on 22.8.2006. But, the Tribunal fixed the multiplier at 4 and his income at Rs.2,000/-. 13. Going by the law laid down by 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]** , wherein the notional income for persons who are working in unorganized sectors has been fixed in **Ramachandrappa** (supra) at Rs.4,500/- per month in the year 2004 and in **Syed Sadiq** (supra) at Rs.6,500/- per month in the year 2006. In view of the law laid down in the above decisions, I am of 8 MACA.No.806 OF 2010 the firm opinion that the deceased first petitioner's income can safely be fixed at Rs.3,000/- as claimed in the claim petition. 14. As the first petitioner expired on 22.8.2006, during the pendency of the claim petition, his permanent disability could not be assessed by a Medial Board. However, based on Exts A3 and A4, the Tribunal has fixed the disability at 100% because the deceased had sustained cervical spine injury avulsion fracture C3 with Quadriplegia. I uphold the finding of the Tribunal. Moreover, the respondents have not challenged the award. 15. It is seen that the Tribunal has erroneously fixed the multiplier at 4. In view of the decisions of the Hon'ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** and **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others- [(2020(3)KHC** 9 MACA.No.806 OF 2010 **760],** the multiplier to be adopted is 11. 16. A three Judge Bench of the Hon'ble Supreme Court in **Pappu Deo Yadav Vs. Naresh Kumar and others [Civil Appeal No.2567 of** **2020]** , after considering a plethora of decisions on the point of permanent disability has held that Court should award compensation for future prospects. 17. In light of fixing the income of the deceased first petitioner at Rs.3,000/- and adopting 11 as the multiplier, future prospects of the first petitioner is to be fixed at 10%. Accordingly, after reappreciating the facts of the case and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I refix the loss of disability including future prospects at Rs.4,35,600/- instead of Rs.96,000/- awarded by the Tribunal. 18. In view of the refixation of the income of the first petitioner at Rs.3,000/-, his loss of earnings is enhanced from Rs.12,000/- to Rs.18,000/- , i.e., by a further amount of Rs. 10 MACA.No.806 OF 2010 6,000/-. The Tribunal has failed to award any amount towards damage to clothing, which I fix at Rs.1,000/- . Similarly, it is seen that the first petitioner had undergone inpatient treatment for the period from 17.9.2002 to 29.9.2002, i.e., twelve days. Therefore, I fix the bystander expenses at Rs.3,000/-. 19. Considering the facts and circumstances of the case, I hold that the amounts of Rs.5,000/awarded under the head - transportation and Rs.20,000/- under the head – pain and sufferings are reasonable and just. The amount of compensation granted under the head difficulties, inconvenience and discomfort is found to be unwarranted and therefore I set aside the same. 20. 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 re-calculated above, and 11 MACA.No.806 OF 2010 ## given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|Loss of earnings|36,000/-|12,000/-|18,000/-| |2|Transport to hospital and<br>back to home|5,000/-|5,000/-|5,000/-| |3|Damage to cloth and<br>articles|1,000/-|Nil|1,000/-| |4|Expense for treatment|50,000/-|Nil|Nil| |5|Bystander expenses|4,000/-|Nil|3,000/-| |6|Expenses<br>for<br>extra<br>nursing by skilled nurse|50,000/-|Nil|Nil| |7|Extra nourishment|5,000/-|Nil|Nil| |8|Compensation for pain<br>and sufferings|50,000/-|20,000/-|20,000/-| |9|Compensation for loss of<br>amenities and comfort|70,000/-|Nil|Nil| |10|Compensation for total<br>disablement|3,96,000/-|96,000/-|4,35,600/-| |11|Loss of estate|5,000/-|Nil|Nil| |12|Compensation for loss of<br>dependency|25,000/-|Nil|Nil| |13|Other heads|Nil|10,000/-|Nil| ||Total|6,97,000/-|1,43,000/-|4,82,600/-| 21. In the result, the appeal is allowed enhancing the compensation by a further amount of Rs.3,39,600/- (Rupees Three Lakhs Thirty Nine Thousand Six Hundred only) with interest at the rate of 9% per annum on the enhanced compensation from the date of claim petition till 12 MACA.No.806 OF 2010 the date of realisation with proportionate costs. The second respondent shall deposit the additional compensation granted in this appeal before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment after deducting the liability if any of the petitioners towards balance court-fee and legal benefit fund. The disbursement of compensation and additional compensation to the appellants shall be done in accordance with law. Needless to mention that, the second respondent would be entitled to execute the award against the third respondent/additional fourth respondent in the claim petition, as directed by the Tribunal. **Sd/-** **C.S.DIAS JUDGE** SKS/2.11.2020