Edison v. Dasan, M.R. Rathnavally and United India Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943 ``` ## `MACA NO. 1196 OF 2009` ``` AGAINST THE AWARD DATED 19.02.2008 IN OP(MV)NO.459/2002 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR. ``` ## `APPELLANT/PETITIONER:` ``` EDISON, S/O. THOMAS, MULLACKAL HOUSE, MATTOM P.O., THRISSUR. ``` ``` BY ADV SRI.SHEJI P.ABRAHAM ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1DASAN, S/O. MADHAVAN, THOTTUNGAL HOUSE, M.G.ROAD, NEAR OVER BRIDGE, THRISSUR. ``` ``` 2M.R.RATHNAVALLY, W/O.MOHAN, NADODY HOUSE, ANCHERRY, THRISSUR. ``` - `3 UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, PARK HOUSE, ROUND NORTH, THRISSUR.` ``` BY ADV SRI.RAJAN P.KALIYATH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1196/2009 -:2:- Dated this the 16[th] day of March,2022 ## **J U D G M E N T** The appellant was the petitioner in OP(MV) No.459/2002 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 25.11.2001. It was his case that, on the above said date, while he was travelling pillion on a motorcycle bearing registration No.KL-8/E 4567, an autorickshaw bearing registration NoKL-8-H196, driven by the first respondent in a negligent manner, hit the motorcycle. The appellant had suffered multiple injuries, including a fracture on his right leg and a head injury. He was treated as an M.A.C.A.No.1196/2009 -:3:- inpatient at the West Fort Hospital, Thrissur. The autorickshaw was owned by the second respondent and insured with the third respondent. The appellant was a printer and was earning a monthly income of Rs.4,000/-. Hence, the appellant claimed an amount of Rs.6,30,000/- as compensation from the respondents, which claim was limited to Rs.3,00,000/-. 3. The rider of the motorcycle had also filed O.P. (MV)No.983/2002 before the same Tribunal, against the respondents, seeking compensation on account of the injuries sustained to him in the accident. 4. The first respondent did not contest the proceeding. 5. The second respondent had filed separate written statements in the claim petitions contending that the accident occurred due to the negligence of the rider of the motorcycle. The second respondent also disputed the age, income and occupation of both the M.A.C.A.No.1196/2009 -:4:- petitioners. 6. The third respondent had also filed separate written statements in both the claim petitions, reiterating the same contentions as that of the second respondent. Nonetheless, the third respondent admitted that the autorickshaw had a valid insurance coverage. 7. The Tribunal consolidated and jointly tried the two claim petitions. 8. The appellant had produced and marked Exts.A1 to A13 in evidence. 9. The Tribunal, after analysing the pleadings and materials on record, by its common award allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,54,450/-. However, the Tribunal entered a finding that the second respondent had violated the insurance policy conditions, therefore, the M.A.C.A.No.1196/2009 -:5:- third respondent was given the right to pay the compensation amount and recover it from the second respondent. 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 11. Heard; Sri.Sheji P.Abraham, the learned counsel appearing for the appellant/petitioner and Sri.Rajan P. Kaliyath, the learned counsel appearing for the third respondent-insurer. 12. The sole point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?. ## **Negligence and liability** 13. Ext.A9 charge sheet filed by the Kunnamkulam Police in Crime No.746/2001, proves that the accident occurred due to the negligence of the first respondent. Even though the third respondent M.A.C.A.No.1196/2009 -:6:- had admitted the insurance policy, the third respondent had contended that the first respondent did not hold a valid driving licence. In fact, the Tribunal had granted the respondents 1 and 2 an opportunity to produce the driving licence of the first respondent, but the same was not produced. Accordingly, an adverse inference was drawn against the respondents 1 and 2 and Tribunal has granted the third respondent the right to recover the compensation amount from the second respondent. I confirm the finding of the Tribunal in this regard. Thus, in the appeal also, I hold that the third respondent is entitled to pay the enhanced compensation and recover the amount from the second respondent. ## **Income** 14. The appellant had claimed that he was a printer in an offset press and was earning a monthly income of Rs.4,000/-. For the want of materials, the M.A.C.A.No.1196/2009 -:7:- Tribunal fixed the notional monthly income of the appellant at Rs.2,000/-. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 16. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2001, I re-fix the notional monthly income of the appellant at Rs.3,000/-. ## **Disability:** 17. The appellant had produced Ext.A3 disability certificate issued by an Orthopedic Surgeon, who had certified that the appellant has a permanent disability of 18%. But, the Tribunal on the basis of Ext.A3 has fixed the ‘functional disability’ of the appellant at 10%. I confirm the said finding. M.A.C.A.No.1196/2009 -:8:- 18. In view of the re-fixation of the notional monthly income of the appellant at Rs.3,000/-, I award him an amount of **Rs.61,200/-** towards ‘loss of earning capacity’, instead of Rs.40,800/- awarded by the Tribunal. ## **Loss of earnings:** 19. The Tribunal has found that the appellant was indisposed for a period of five months. I confirm the said finding. 20. Again, in view of the re-fixation of the notional monthly income of the appellant at Rs.3,000/-, I award him an amount of **Rs.15,000/-** towards 'loss of earnings', instead of Rs.10,000/- awarded by the Tribunal. ## **Pain and sufferings and loss of amenities:** 21. The Tribunal has awarded an amount of Rs.15,000/- under the head ‘pain and sufferings’ and Rs.10,000/- under the head ‘loss of amenities’. M.A.C.A.No.1196/2009 -:9:- 22. On a consideration of the fact that the appellant was treated as inpatient for a period of 39 days, that he had undergone patellectomy, that he was indisposed for a period of five months and also had suffered a functional disability of 10%, I hold that he is entitled to a further amount of **Rs.10,000/-** under the head ‘pain and sufferings’ and **Rs.10,000/-** under the head ‘loss of amenities’. 23. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 24. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, 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. M.A.C.A.No.1196/2009 -:10:- |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transportation<br>expenses|2,000|2,000| |2|Loss of earnings|10,000|15,000| |3|Clothing|500|500| |4|Pain<br>and<br>sufferings|15,000|25,000| |5|Bystander<br>expenses|4,000|4,000| |6|Extra<br>nourishment|2,000|2,000| |7|Medical<br>expenses|70,150|70,150| |8|Loss of amenities|10,000|20,000| |9|Loss of earning<br>capacity|40,800|61,200| |**Total**||**1,54,450**|**1,99,850**<br>Rounded off to<br>**Rs.2,00,000**| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **Rs.45,550/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 263 days (i.e., the M.A.C.A.No.1196/2009 -:11:- period of delay in preferring this appeal and as ordered by this Court on 08.11.2021 in C.M.Appln.No.1/2009), and a cost of Rs.7,500/-. 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 this judgment. As the second respondent had violated the insurance policy conditions, the third respondent is permitted to recover the compensation amount from the second respondent. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/16.03.22 //True copy/ P.A.To Judge