Dasan Pillai v. John Thomas, K.V. Varghese Kuttanpara and The National Insurance Co. Ltd.

1 MACA No.2030 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 MACA NO. 2030 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1648/2004 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA APPELLANT/S:** DASAN PILLAI S/O.RAMAN PILLAI, KUNNUMPURATH VEEDU, CMC 17, CHERTHALA. BY ADV SRI.T.B.SARASAN ## **RESPONDENT/S:** 1 JOHN THOMAS S/O.A.T.THOMAS, ADICHITHARA VEEDU, PURAMATTAM, PATHANAMTHITTA. 689 645. 2 K.V.VARGHESE KUTTANPARA VEEDU, MUNDAMALA, PURAMATTAM, PATHANAMTHITTA. 689 645. 3 THE NATIONAL INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, ALLEPPEY. 688 001. BY ADV SMT.DEEPA GEORGE - R3 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2030 of 2012 ## **C.S.DIAS, J. ====================== MACA No.2030 of 2012** ## **====================== Dated this the 2[nd] day of March, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1648/2004 on the file of the Additional Motor Accident Claims Tribunal, Alappuzha. 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 9.7.2004. It was his case that, on the above said date, while he was riding his motorcycle along the Alappuzha-Cherthala National Highway, a car bearing registration No.KL-03/F 2394, driven by the first respondent in a rash and negligent manner, hit the motorcycle. The appellant was employed as a Work Supervisor under a Contractor named, Royis John and was earning a monthly income of Rs.9,000/-. 3 MACA No.2030 of 2012 The second respondent was the owner and the third respondent was the insurer of the car. Hence, the appellant claimed a compensation of Rs.2,40,000/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. Even though the third respondent/insurer had entered appearance, no written statement was filed. 5. The appellant and his employer were examined as PWs 1 and 2 and Exts A1 to A9 were marked in evidence. The disability certificate was marked as Ext X1. 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 third respondent an amount of Rs.84,546/- with interest @ 6% per annum from the date of petition till the date of 4 MACA No.2030 of 2012 realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.T.B Sarasan, the learned counsel appearing for the appellant/petitioner and Smt.Deepa George, the learned counsel appearing for the third respondent/insurer. 9. The sole 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 A1 FIR and the uncontroverted averments in the claim petition substantiate that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext A1 FIR or controvert the averments in the claim 5 MACA No.2030 of 2012 petition. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 11. The appellant had claimed that he was a Work Supervisor under a Contractor named, Royis John and was earning a monthly income of Rs.9,000/-. To substantiate the said contention, he had produced Ext A9 salary certificate and examined his employer as PW2. However, the Tribunal for absolutely no reason stated, just reduced and fixed the notional monthly income of the appellant at Rs.4,000/-. The course adopted by the Tribunal is erroneous and unacceptable in law. 12. It is to be remembered that the respondents have not contested the proceeding. They had also not 6 MACA No.2030 of 2012 cross-examined PWs 1 and 2. Therefore, the case of the appellant stands unchallenged. 13. In view of the uncontroverted averments and oral testimonies of PWs 1 and 2 read with Ext A9 salary certificate, I do not find any reason to not accept Ext A9 salary certificate and take the salary stated therein at Rs.9,000/-. Hence, I re-fix the notional monthly income of the appellant at Rs.9,000/-. 14. The Hon'ble Supreme Court in **Kalpanaraj and others v. Tamil Nadu State Transport Corporation [(2015) 2 SCC 764]** has held that while fixing the income of an injured-claimant, the income tax as well as professional tax have to be deducted from the gross salary to fix the net income. 15. In the instant case, I find that the appellant had an annual income of Rs.1,08,000/-. As per the income tax slab in the year 2004-2005, the appellant had to pay 10% income tax, above the amount of 7 MACA No.2030 of 2012 Rs.60,000/-. Therefore, the taxable income of the appellant was Rs.48,000/-. In the above circumstances, I deduct 10% from Rs.48,000/- i.e., Rs.4,800/- and also fix the professional tax at Rs.500/- totaling to an amount of Rs.5,300/-. 16. In the above circumstances, I hold that the appellant was earning a net annual income of Rs.1,02,700/-, i.e., a monthly income of Rs.8,560/-. ## **Multiplier** 17. Admittedly, the appellant was aged 43 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 '14'. ## **Disability** 18. As per Ext X1 disability certificate issued by the Medical Board attached to the Medical College Hospital, Alappuzha, it is found that the appellant has a 8 MACA No.2030 of 2012 mal union of fracture and shortening of his leg by half an inch. In the above circumstances, the Tribunal has fixed the permanent disability of the appellant at 11%. 19. In Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)], the Hon'ble Supreme Court has held that what needs to be looked into in an injury claim is the functional disability of the injured-claimant. 20. On a consideration of the assessment made in Ext X1, I fix the functional disability of the appellant at 11%. ## **Loss of earning capacity** 21. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at 8,560/-, the multiplier at 14 and his functional disability at 11%, I award the appellant an amount of **Rs.1,58,188/-** towards loss of earning capacity instead of Rs.70,000/- awarded by the appellant. 9 MACA No.2030 of 2012 ## **Bystander expenses and extra nourishment** 22. It is proved that the appellant was treated as an inpatient for a period of 9 days. The Tribunal has awarded only an amount of Rs.1,800/- towards extra nourishment. In the said circumstances, I award the appellant an amount of **Rs.2,700/-** under the head 'bystander expenses'. ## **Loss of amenities** 23. Going by the nature of injuries sustained by the appellant, the fact that he was treated as an inpatient for a period of 9 days and that he has suffered a functional disability of 11%, I award him an amount of **Rs 10,000/-** under the head 'loss of amenities'. ## **Other heads of compensation** 24. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, 10 MACA No.2030 of 2012 materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled to 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<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|750/-|750/-| |2|Extra nourishment|1,800/-|1,800/-| |3|Bystander expenses|Nil|2,700/-| |4|Pain and suffering|10,000/-|10,000/-| |5|Medical expenses|1,996/-|1,996/-| |6|Loss of earningcapacity|70,000/-|1,58,188/-| |7|Loss of amenities|Nil|10,000/-| ||Total|84,546/-|1,85,434/-| In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.1,00,888/-** rounded off to **Rs.1,01,000/-** (Rupees 11 MACA No.2030 of 2012 One Lakh One Thousand 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 714 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 7.10.2021 in C.M Appln No.1/2012, and a cost of Rs.5,000/-. The third 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 same shall be disbursed to the appellant, in accordance with law. SD/- sks/2.3.2022 **C.S.DIAS, JUDGE**