Devandan (died) and others vs Abdulla Ambalathveettill House; Ali K.; New India Assurance Company Ltd.

MACA NO. 803 OF 2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 18[TH] DAY OF JANUARY 2022 / 28TH POUSHA, 1943** ## **MACA NO. 803 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 675/2010 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** 1 DEVANANDAN (DIED) AGED 45 YEARS S/O. BALAKRISHNAN NAIR, 'PRATHIBHA', PALLIYALI PARAMBA, P.O.FEROKE, NALLUR, KOZHIKODE-673 631. * 2 P.BALAKRISHNAN NAIR AGED 78 YEARS RESIDING AT PRATHIBHA ,PALLIYALI PARAMBA,FEROKE AMSAM,NALUR DESOM,FEROKE POST,KOZHIKODE-673631 * 3 P.PREMANDAN AGED 55 YEARS RESIDING AT PRATHIBHA,PALLIYALI PARAMBA,FEROKE AMSAM,NALUR DESAM,FEROKE POST,KOZHIKODE-673631 (LEGAL HEIRS AND DEPENDANTS OF THE DECEASED APPELLANT ARE IMPLEADED AS PER ORDER DATED 14/11/2018 IN IA NO.2/2018) BY ADV SMT.K.V.RESHMI ## **RESPONDENT/S:** 1 ABDULLA AMBALATHVEETTIL HOUSE, P.O.PAZHUVIL, KERALA-680 564. 2 ALI K.,S/O. MOIDEEN, KARUVANNOOR HOUSE, THUNERI, KOZHIKODE.673505 3 NEW INDIA ASSURANCE COMPANY LTD. S.S.N.SHOPPING COMPLEX, TEMPLE ROAD, VATAKARA P.O., MACA NO. 803 OF 2012 **==> picture [7 x 8] intentionally omitted <==** THRIPRAYAR, TRICHUR-680 567. BY ADVS. LAL GEORGE RENIL ANTO KANDAMKULATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 803 OF 2012 3 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.675/2010 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. Pending the appeal, the original appellant died and his legal representatives are impleaded as the additional appellants 2 and 3. Therefore, the parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner 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 22.10.2009. It was his case that, on the above said date, while he was riding his motor cycle bearing registration No.KL-12 C 376 from Kondotty to Nallur, a car bearing registration No.KL04-J 2187 (offending car), driven by the 2[nd] respondent in a rash and negligent manner, hit the motor cycle of the petitioner. The petitioner sustained multiple injuries including a haemorrhagic contusion and extra axial hematoma. He was treated as an inpatient at the Medical College Hospital from 20.02.2009 to 15.11.2009. The car was owned by the 1[st] MACA NO. 803 OF 2012 4 respondent and insured with the 3[rd] respondent. The petitioner was a businessman who was running a stationery shop and was earning a monthly income of Rs.9,500/-. The petitioner has become permanently disabled. Therefore, the petitioner claimed a compensation of Rs.4,65,000/- from the respondents, which claim was limited to Rs.3,00,000/-. 3. The 1[st] respondent did not contest the proceeding. 4. The 2[nd] respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the petitioner. 5. The 3[rd] respondent had filed a written statement admitting that the car had a valid insurance coverage. Nevertheless, it was reiterated that the accident occurred due to the negligence of the petitioner. The 3[rd] respondent also disputed the age, income and occupation of the petitioner. 6. The petitioner had produced and marked Exts.A1 to A12 in evidence. The disability certificate issued by the Medical Board was marked as Ext.C1. 7. The Tribunal, after analysing the pleadings and materials on record allowed the claim petition in part, by MACA NO. 803 OF 2012 5 permitting the petitioner to recover from the 3[rd] respondent an amount of Rs.2,22,300/- with interest and cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard Smt. Rashmi K.V., the learned counsel appearing for the appellant/petitioner and Sri. Renil Anto, the learned counsel appearing for the 3[rd] respondent/insurer. 10. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 11. Ext.A3 charge sheet filed by the Police 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 have not let in any evidence to discredit Ext.A3 charge sheet. Likewise, the 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. MACA NO. 803 OF 2012 6 ## **Income** 12. The petitioner had stated that he was a businessman and running a stationery shop. He claimed that he was earning a monthly income of Rs.9,500/-. For want of materials, the Tribunal fixed the monthly income of the petitioner notionally at Rs.3,000/-. 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd.** : (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. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2009, I refix the notional monthly income of the petitioner at Rs.7,000/-. ## **Loss of earnings** 15. The petitioner had claimed that he was indisposed for a period of five months. However, the Tribunal held that the petitioner was only indisposed for a period of three months. 16. On an evaluation of Ext.A2 wound certificate, Ext.A10 7 MACA NO. 803 OF 2012 scan report, Ext.A11 discharge summary and Ext.C1 Medical Report, I find that the petitioner had sustained multiple injuries and was indisposed for a period of five months. Accordingly, I hold that the petitioner was indisposed for a period of five months. 17. In view of the refixation of the notional monthly income of the appellant at Rs.7,000/-, I award him an amount of Rs.35,000/- towards ‘loss of earnings’, instead of Rs.9,000/awarded by the Tribunal. ## **Disability** 18. The Tribunal had referred the petitioner to the Medical Board attached to the Medical College Hospital, Calicut. The two member Medical Board has assessed the petitioner’s permanent disability at 24%. Following the principles laid down in **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], and considering the injuries certified in Ext.C1 and also taking note of the fact that the petitioner was running a stationery shop, I fix his 'functional disability' at '24%' as certified in Ext.C1. ## **Multiplier** 19. The petitioner was aged 43 years at the time of the MACA NO. 803 OF 2012 8 accident. In view of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant multiplier to be adopted is “14”. ## **Loss due to disability** 20. In view of the refixation of the notional monthly income of the petitioner at Rs.7,000/-, his functional disability at 24% and the multiplier at '14', I award him an amount of Rs.2,82,124/- towards ‘loss due to disability’ instead of Rs.1,29,600/- fixed by the Tribunal. ## **Bystander expenses and Extra nourishment** 21. The Tribunal has found that the petitioner needed the assistance of a bystander for a period of 68 days due to the serious injuries sustained to him. I confirm the said finding. Nevertheless, as the accident occurred in the year 2009, I award the petitioner 'bystander expenses' at Rs.400/- per day for a period of 68 days, which works out to Rs.27,200/-. Similarly, I award the petitioner an amount of Rs.200/- per day for a period of 68 days towards 'extra nourishment' which comes to Rs.13,600/-. ## **Pain and sufferings and loss of amenities** 22. The petitioner had claimed an amount of Rs.30,000/- MACA NO. 803 OF 2012 9 towards pain and sufferings and an amount of Rs.10,000/towards loss of amenities. The Tribunal has awarded an amount of Rs.15,000/- and Rs.5,000/- under the above two heads. 23. Taking into consideration the fact that the petitioner was treated as an inpatient for the period from 22.10.2009 to 15.11.2009, that he needed the assistance of a bystander for the period of 68 days, that he was indisposed for a period of five months and that he suffered a functional disability of 24%, I award him further amounts of Rs.10,000/- and Rs.5,000/respectively, under the heads ‘pain and sufferings’ and ‘loss of amenities’. 24. With respect to the compensation awarded, namely transportation expenses, clothing and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall 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. MACA NO. 803 OF 2012 10 **==> picture [448 x 483] 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 9,000 35,000<br> 2. Transportation expenses 1,500 1,500<br>3. Clothing 500 500<br>4. Bystander expenses 10,200 27,200<br>5. Extra nourishment 1,500 13,600<br>5. Medical expenses 50,000 50,000<br>6. Pain and sufferings 15,000 25000<br>7. Loss of amenities 5,000 10,000<br>8. Loss due to disability 1,29,600 2,82,240<br>Total 2,22,300 4,45,040<br>**----- End of picture text -----**<br> 26. As I re-fixed the notional income of the petitioner, following the principles in **Ramachandrappa** (supra) and re- fixed the multiplier at '14', I have awarded the petitioner more compensation amount than what is claimed in the claim petition. The said course is permissible in view of the law laid MACA NO. 803 OF 2012 11 down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC. 27. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.2,22,740/- with interest @ 7% per annum from the date of petition till the date of deposit, after deducting interest for the period from 27.12.2011 to 10.03.2016 as ordered by this Court on 21.01.2016, and a cost of Rs.15,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation amount with interest as stated above and cost. Immediately on the compensation amount being deposited, the same shall be disbursed to the additional appellants 2 and 3 in the ratio of 50:50, after deducting their liability, if any, towards payment of court fee, and in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** rkc/19.01.22