Fijo Anto v. Joffy Anto, Moy George and The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** **MACA NO. 2665 OF 2009** **AGAINST THE AWARD DATED 02.05.2009 IN OPMV 3485/2002 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** FIJO ANTO, 23 YEARS, S/O ANTO, THEKKEKKARA HOUSE, CHEMMANTHATTA P.O., PAZHUNNANA, THRISSUR. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** - 1 JOFFY ANTO, S/O ANTO, THEKKEKKARA HOUSE CHEMMANTHATTA P.O., PAZHUNNANA, THRISSUR. - 2 MOY GEORGE S/O.GEORGE PUTHANPURAYIL HOUSE, RAMANCHIRRA, THIRUMALA P.O.,, KOTTAYAM. 3 THE NEW INDIA ASSURANCE CO.LTD. ANUGRAHA BUILDING, VADAKKANCHERRY ROAD,, KUNNAMKULAM. BY ADVS. SRI.M.M.IRSHAD MOOPPAN SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No2665-2009 -:2:- Dated this the 10[th] day of January, 2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.3485/2002 on the file of the Motor Accidents Claims Tribunal,Trissur. 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 that he sustained in an accident on 17.07.2002. It was his case that, on the above said date, while he was travelling in a car bearing registration No. KL 3-C 3244 through the Thirssur Velankanny road, when the car reached a place named Manaparai, the car hit against a tree due to the negligence of the first respondent. The car was owned by the second respondent and insured with the third respondent. The appellant was a T.V. Mechanic by profession and earning a monthly income of M.A.C.A.No2665-2009 -:3:- Rs.3500/-. The appellant had sustained a fracture of his left clavicle and a fracture of his right 4[th] and 5[th] ribs. He was treated as an inpatient for a period of seven days. Hence, the appellant claimed a compensation of Rs.3,61,000/- from the respondents, which claim was limited to Rs.2,50,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex- parte. 4. The third respondent had filed a written statement, inter alia, refuting the allegations in the claim petition. The third respondent disputed the age, income and occupation of the appellant. It was also contended that the compensation claimed under the different heads was excessive. 5. The appellant examined himself as PW1 and the Doctor who issued the disability certificate as PW2 and marked Exhibits A1 to A9 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and M.A.C.A.No2665-2009 -:4:- materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.73,330/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Sheji P Abraham, the learned counsel appearing for the appellant/petitioner and Sri.M.M.Irshad Mooppan, the learned counsel appearing for the third respondent/insurer. 9. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Exhibit A2 accident register proves that the accident occurred due to the negligence of the first respondent. Undisputably, the second respondent was M.A.C.A.No2665-2009 -:5:- the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to controvert the assertions in the claim petition and the oral testimonies of PWs1 and 2. 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. ## **Income** 11. The appellant had claimed that he was a T.V. mechanic by profession and earning a monthly income of Rs.3500/-. For the want of material, the Tribunal has fixed the notional monthly income of the appellant at Rs.2000/-. ## 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the M.A.C.A.No2665-2009 -:6:- year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decisions and considering the fact that the accident occurred in the year 2002, I re-fix the notional monthly income of the appellant at Rs.3500/- per month. ## **Loss of earnings** 14. It is proved and established as per Exhibits A6 and A7 discharge summaries and Exhibit A5 disability certificate that the appellant had sustained a fracture on his left clavicle and fractures of his right 5[th] and 6[th] ribs. He was treated as an inpatient in the Bones and Joints Hospital, Trichirappally, Tamilnadu. As the appellant was a T.V.Mechanic and he had sustained a fracture on his left clavicle, I hold that he was indisposed for a period of four months. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.3500/-, I award the appellant an amount of Rs.14,000/- towards ‘loss of earnings’. M.A.C.A.No2665-2009 -:7:- ## **Disability** 16. The appellant had produced Exhibit A5 disability certificate, issued by an Orthopedic specialist, who had certified that the appellant has a permanent disability of 14% to his specific limb and 9% to his whole body. The Tribunal fixed the permanent disability of the appellant at 6%. 17. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that what needs to be looked into in a case of injury, is the functional disability of the injured/claimant. 18. In the instant case, the appellant had examined PW2, who proved Exhibit A5 disability certificate, wherein the appellant’s permanent disability to his upper limb and ribs was certified at 14%. 19. Since the appellant was a T.V. Mechanic by profession and his wrist movement and forearm M.A.C.A.No2665-2009 -:8:- movement have been impaired, I fix the functional disability of the appellant at 10%. 20. The appellant was aged 23 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘18’. ## **Loss due to disability** 21. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.3500/-, his functional disability at 10% and the multiplier at ‘18’, I award the appellant an amount of Rs.75,600/- towards ‘loss due to disability’, instead of Rs.24,480/- awarded by the Tribunal. 22. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 23. On an over all re-appreciation of the pleadings M.A.C.A.No2665-2009 -:9:- 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 re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|0|14000| |2|Transport<br>expenses|2000|2000| |3|Damage<br>to<br>clothing|500|500| |4|By-stander<br>expense|750|750| |5|Extra nourishment|1500|1500| |6|Medical expenses|23100|23100| |7|Pain and sufferings|15000|15000| |8|Loss of amenities|6000|6000| |9|Loss<br>due<br>to<br>disability|24480|75600| ||**Total**|**73330**|**138450**| In the result, the appeal is allowed in part, by M.A.C.A.No2665-2009 -:10:- enhancing the compensation by a further amount of Rs.65,120/- with interest at the rate of 7% per annum from the date of petition till the date of realisation, after deducting interest for a period of 48 days i.e the period of delay in filing the appeal and as ordered by this Court on 13.10.2021 in C.M.Application No. 1/2009, and a cost of Rs.7000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm11/01/2022