E.C.JOY v. I.C.SHAJIL and others

MACA NO. 2813 OF 2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943** **MACA NO. 2813 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 342/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/S:** E.C.JOY, S/O CHACKO, RESIDING AT ELUVATHINGAL HOUSE, P.O AVINISSERY, THRISSUR DISTRICT BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## **RESPONDENT/S:** 1 I.C.SHAJIL S/O CHANDRAN, RESIDING AT IRUDUKAVIL HOUSE, KALADITHARA P.O, SUKAPURAM, EDAPPAL, MALAPPURAM DISTRICT 676505 2 E.A ASOKAN S/O RAMAN, RESIDING AT EARAT ARAKKAL HOUSE, PUDUPONNANI, MALAPPURAM DISTRICT 676505 3 THE UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, WESTERN WING, AMBADY BUILDING, PONNANI, MALAPPURAM DISTRICT 679577 4 JOSEPH S/O THOMAS, RESIDING AT THAIKKADAN HOUSE, P.O, RAMAVARMAPURAM, THRISSUR DISTRICT 680631 5 SUNIL KUMAR S/O NARAYANAN, RESIDING AT KOTTILINGAL HOUSE, P.O, KANDANASSERY, KUNNAMKULAM, THRISSUR DISTRICT, 680102 MACA NO. 2813 OF 2012 2 6 THE ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDING, M.G. ROAD, THRISSUR 680001 BY ADVS. SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU SRI.GEORGE CHERIAN THIRUVALLA SRI.K.S.MADHUSOODANAN SRI.K.S.MIZVER SRI.P.K.RAKESH KUMAR SRI.THOMAS CHAZHUKKARAN SRI.M.M.VINOD KUMAR SRI.P.K.MANOJKUMAR SRI.K.S.MADHUSOODANAN SMT. LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2813 OF 2012 3 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.342/2005 on the file of the Motor Accidents Claims Tribunal, Thrissur. 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 14.06.2004. It was his case that, on the above said date, while he was traveling in a bus bearing registration No.KL 8.X 5593 from Kozhikode to Thrissur, driven by the 5[th] respondent, the bus was hit by another bus bearing registration No.KL.10J 1341, driven by the 2[nd] respondent. The accident occurred due to the negligence of the drivers of both the buses. The buses were owned by the respondents 1 and 4 and insured with the respondents 3 and 6, respectively. The appellant was a cleaner by profession and was earning a monthly income of Rs.5,000/-. Hence, the appellant had claimed a compensation of Rs.2,27,000/- from the respondents, which claim was limited to Rs.2,00,000/-. MACA NO. 2813 OF 2012 4 3. Another injured in the same accident had also filed OP(MV) No.343/2005 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1, 2, 4 and 5 did not contest the proceedings and were set ex-parte. 5. The respondents 3 and 6 had filed separate written statements denying the allegations in the claim petitions and attributing negligence as against the drivers of the other buses. The respondents 3 and 6 also disputed the age, income and occupation of the petitioners in the two claim petitions. 6. The Tribunal had consolidated and jointly tried the two claim petitions. 7. The petitioners had produced and marked Exts.A1 to A11 in evidence. The 3[rd] respondent had produced Exts.B1 and B2 insurance policies. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petition in part, by permitting that the appellant to recover an amount of Rs.79,400/- from the respondents 3 and 6, the insurers of the two buses with interest. MACA NO. 2813 OF 2012 5 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard Sri. T.C. Suresh Menon, the learned counsel appearing for the appellant/petitioner, Sri. P.K. Manojkumar, the learned counsel appearing for the 3[rd] respondent, Sri. K.S. Madhusoodanan, the learned counsel appearing for the 4[th] respondent and Smt. Latha Susan Cherian, the learned counsel appearing for the 6[th] respondent. 11. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 12. The Tribunal, on the basis of Ext.A3 final report, arrived at the conclusion that the accident occurred due to the negligence of the respondents 2 and 5. I confirm the said finding. The respondents 1 and 4 were the owners of the two buses and the respondents 3 and 6 were the insurers of the buses. As the respondents 3 and 6 have not proved that the owners had violated the insurance policy conditions, the respondents 3 and 6 are to indemnify the liability of the owners MACA NO. 2813 OF 2012 6 arising out of the accident in equal proportion. ## **Income** 13. The appellant had claimed that he was a cleaner by profession and was earning a monthly income of Rs.5,000/-. For want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 14. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance 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. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2004, I refix the notional monthly income of the appellant at Rs.4,500/-. ## **Loss of earnings** 16. The Tribunal found that the appellant was indisposed for a period of three months. I confirm the said finding. 17. However, in view of the refixation of the notional MACA NO. 2813 OF 2012 **==> picture [7 x 8] intentionally omitted <==** monthly income of the appellant at Rs.4,500/- per month, I refix his 'loss of earnings' at Rs.13,500/-, instead of Rs.9,000/awarded by the Tribunal. ## **Bystander expenses** 18. It is proved that the appellant was treated as an inpatient for a period of nine days. However, the Tribunal awarded only an amount of Rs.1,800/- under the head bystander expenses. 19. Taking into account the fact that the accident occurred in the year 2004, I award the appellant Rs.300/- per day for a period of nine days towards ‘bystander expenses’ which works out to Rs.2,700/-. ## **Disability** 20. The appellant had produced Ext.A5 disability certificate issued by an Orthopaedic Surgeon of the Government Medical College Hospital, Thrissur. The Doctor has assessed the disability of the appellant at 11% due to the fracture of middle third shaft of the humerus with 20% angulation. However, the Tribunal scaled down the disability to 6%. MACA NO. 2813 OF 2012 8 21. In **Rajkumar vs. Ajaykumar** [(2011) 1SCC 343], the Honourable Supreme court has categorically held that in an injury claim, if the Tribunal is not satisfied with the disability certificate produced before the Tribunal, the Tribunal has to refer the injured/claimant to a Medical Board. More over, it is also observed that if the disability is marked in evidence with the consent of the parties, the same can be accepted in evidence. Likewise, it is also held that what needs to be looked into is the functional disability of the injured/claimant. 22. In the instant case Ext.A5 was marked in evidence without any protest or objection from the respondents. The Tribunal also did not refer the appellant to a Medical Board. Therefore, I accept Ext.A5 in evidence. 23. On an appreciation of Ext.A5 it is seen that the appellant had a fracture of middle third shaft of the humerus right with 20% angulation. Considering the fact that he was a cleaner by profession, I fix his 'functional disability' at 10%. ## **Multiplier** 24. The appellant was aged 31 years at the time of the accident. In the light of the law laid down in **Sarla Varma vs.** MACA NO. 2813 OF 2012 9 **Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘16’. ## **Loss due to disability** 25. Taking into account the above mentioned factors namely, notional monthly income of the appellant at Rs.4,500/-, his functional disability at 10% and the multiplier at 16, I award the appellant an amount of Rs.86,400/- towards ‘loss due to disability’, instead of Rs.34,560/- awarded by the Tribunal. ## **Pain and sufferings and loss of amenities** 26. On a consideration of the fact that the appellant was treated as an inpatient for a period of nine days, that he suffered a disability of 10% and that he was indisposed for a period of three months, I award him a further amount of Rs.5,000/- under the head ‘pain and suffering’ and Rs.6,000/under the head ‘loss of amenities’. 27. With respect to the other heads of compensation, I hold that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore- MACA NO. 2813 OF 2012 10 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 400] 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 13,500<br> 2. Transportation expenses 3,000 3,000<br>3. Bystander expenses 1,800 2,700<br>4. Medical expenses 2,039 2,039<br>5. Pain and sufferings 15,000 20,000<br>6. Loss of amenities 14,000 20,000<br>7. Loss due to disability 34,560 86,400<br>Total Rs.79,399 1,47,639<br>rounded to<br>Rs.79,400<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.68,239/- with interest @ 7% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The respondents 3 and 6 are MACA NO. 2813 OF 2012 **==> picture [12 x 9] intentionally omitted <==** directed to deposit the enhanced compensation with interest and cost as stated above in equal shares before the Tribunal 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/15.02.22