E.N. RAGHAVAN PILLAI v. SHIBU MATHEW, YOHANAN @ SUNNY, SUNNY T. JOHN, ORIENTAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 31[ST] DAY OF AUGUST 2021 / 9TH BHADRA, 1943** **MACA NO. 780 OF 2008** **AGAINST THE AWARD DATED 07.02.2008 IN OP(MV)NO.1340/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA,** ## **NAME AND ADDRESS OF THE APPELLANT/PETITIONER:** **E.N.RAGHAVAN PILLAI, AGED 54 YEARS, S/O.NANU PILLAI, EDAKUNNATHU VEEDU, PERUMPATTI P.O., MALLAPALLY, PATHANAMTHITTA, DISTRICT.** **BY ADVS.SRI. K.SHAJ SRI.B.BALRAJ SRI.SAJJU.S** ## **NAME OF THE RESPONDENTS/ RESPONDENTS:** - **1 SHIBU MATHEW, VALIYAKALAYIL VEEDU, EETTICHUVADU P.O., RANNY.** - **2 YOHANAN @ SUNNY, S/O.PHILIP MATHAI, MARALIL VEEDU, PERUMPATTY P.O, MALLAPALLY.** - **3 SUNNY.T.JOHN, THEKKECHARUVIL VEEDU THONDADA, ANGADY P.O., RANNY.** - **4 THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE, RANNY.** **BY ADVS.ARUN.B.VARGHESE SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.780/2008 -:2:- Dated this the 31[st] day of August, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P. (MV)No.1340/1999 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: On 20.06.1999, while the appellant was walking through the Chettiyar Kavala on Perumpetty-Puthukkudimukku Panchayat road, a jeep bearing registration No. KL-3/D 846 (jeep), driven by the second respondent in a rash and negligent manner, hit the appellant. The appellant sustained serious injuries, including a compound fracture on his right leg. He was treated at the Pushpagiri Hospital, Thiruvalla, as an inpatient from M.A.C.A.No.780/2008 -:3:- the date of accident till 31.08.1999. The jeep was owned by the first respondent and insured with the fourth respondent. The third respondent was the authorised driver of the jeep. It was without the knowledge of the third respondent, the second respondent drove the jeep. The appellant was a labourer and earning a monthly income of Rs.4,000/-. Hence, the appellant claimed a compensation of Rs.2,00,000/- from the respondents. 3. The second respondent did not contest the proceedings and was set _ex parte_ . 4. Respondent Nos.1 and 3 filed separate written statements. The first respondent contended that he had entrusted the jeep to the third respondent, who was the duly licenced driver. The third respondent was not permitted to give the jeep to any other person. The second respondent, without the permission of the third respondent, drove the jeep and caused the M.A.C.A.No.780/2008 -:4:- accident. Hence, the first respondent was not liable to pay any amount as compensation. 5. The fourth respondent filed a written statement contending that they are not liable to indemnify the first respondent because the first respondent had violated the terms and conditions of the insurance policy, as the third respondent did not hold a valid and effective driving licence. Therefore, the fourth respondent may be exonerated of its liability. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to recover an amount of Rs.1,12,800/- with interest and costs from the fourth respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. M.A.C.A.No.780/2008 -:5:- 8. Heard; Sri. K. Shaj, the learned counsel appearing for the appellant/petitioner, Sri. Arun B. Varghese, the learned counsel appearing for the first respondent and Sri. Alexy Augustine, the learned counsel appearing for the fourth respondent. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability:** 10. It is proved through the materials available on record that the accident occurred on account of the negligence of the second respondent. Undisputedly, the first respondent was the owner and the fourth respondent was the insurer of the vehicle. Even though the fourth respondent had contended that there was a violation of the policy condition, no material was produced before the Tribunal to fortify M.A.C.A.No.780/2008 -:6:- their contention. Accordingly, the Tribunal by the impugned award, directed the fourth respondent to pay the compensation amount. With the available materials, I am satisfied with the finding of the Tribunal in this regard, especially for the want of any appeal/cross-appeal from the fourth respondent. ## **Notional income:** 11. The appellant had claimed that he was a casual labourer by profession and earning an amount of Rs.4,000/- per month. The Tribunal fixed the notional income of the appellant at Rs.1,500/- per month. 12. 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. 13. Following the ratio in the afore-cited decision M.A.C.A.No.780/2008 -:7:- and keeping in mind the fact that the accident occurred in the year 1999 and the appellant was a casual labourer by profession, I re-fix his notional income at Rs.2,000/- per month. ## **Loss of earnings:** 14. It is established and proved as per Ext.A4 wound certificate and Ext.A9 disability certificate that the appellant was incapacitated for a period of six months. I accept the said finding of the Tribunal. 15. In view of the re-fixation of the notional income of the appellant at Rs.2,000/- per month, I re-fix his 'loss of earnings' at Rs.12,000/- i.e., an enhancement by Rs.3,000/-. ## **Loss due to disability** 16. As per Ext.A9 disability certificate, it is proved that the appellant has a disability of 20%. In view of the re-fixation of 'notional income' of the appellant at Rs.2,000/- per month, the appellant is M.A.C.A.No.780/2008 -:8:- entitled for enhancement of compensation under the said head by a further amount of Rs.15,600/-. ## **Loss of amenities** 17. The appellant had claimed an amount of Rs.9,000/- as compensation for 'loss of earnings' including 'loss of amenities'. As the appellant had sustained a permanent disability of 20%, as per Ext.A9, and he had sustained serious injuries, including a compound fracture on his right leg and that he was indisposed for a period of six months, I am the definite opinion that the appellant is entitled for a further amount of Rs.6,000/- under the head 'loss of amenities'. 18. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 19. On an overall re-appreciation of the pleadings, materials on record and the law relied on in M.A.C.A.No.780/2008 -:9:- the afore-cited decision, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above i.e., an enhancement by a further amount of Rs.24,600/i.e., Rs.3,000/- towards 'loss of earnings', Rs.15,600/towards the 'loss due to disability' and Rs.6,000/towards 'loss of amenities'. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **Rs.24,600/-** with interest on the enhanced compensation at the rate of 6% per annum from the date of petition till the date of deposit and a cost of Rs.3,000/-. The fourth respondent is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in M.A.C.A.No.780/2008 -:10:- accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge