JERMY S/O GEORGE THADATHIL v. V.J. THOMAS; THE NEW INDIA ASSURANCE COMPANY LTD.; MARTIN K.C.

1 MACA No.1792 of 2009 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943 MACA NO. 1792 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 560/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI APPELLANT/S:** JERMY, S/O.GEORGE THADATHIL HOUSE, VAZHATHOPPU KARA,, IDUKKI VILLAGE, IDUKKI COLONY POST. BY ADV SRI.MATHEW JOHN (K) ## **RESPONDENT/S:** 1 V.J.THOMAS , S/O.JACOB VADASSERY HOUSE, PALLURUTHY,, ERNAKULAM, COCHIN682006. 2 THE NEW INDIA ASSURANCE COMPANY LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, NO.II,, MUNDUKOTTACKAL CHAMBERS, KANJIKUZHY POST,, KOTTAYAM. 3 MARTIN K.C., S/O GEORGE KUTTAEZATH HOUSE, KANNAGHAT ROAD,, PAMBAIMOOLABHAGAM, EDAKOCHI DESOM AND VILLAGE,, ERNAKULAM DISTRICT. BY ADV SMT.T.C.SOWMIAVATHY ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1792 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.1792 of 2009** **====================== Dated this the 9[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 560/2004 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 25.2.2004. It was the appellant's case that, on the above said day, while he was working as a Conductor in the Bus bearing registration No.KL-7R/8451 (Bus), when the Bus reached the Pyarry Junction, Thoppumpady, and the appellant was attempting to alight from the Bus, the third respondent moved the Bus in a 3 MACA No.1792 of 2009 negligent manner and the appellant fell on the road and sustained serious injuries, including a compound fracture on his left leg. The Bus was owned by the first respondent and insured with the second respondent. The appellant was a Conductor by profession and was earning a monthly income of Rs.5,000/-. He was treated as an inpatient at the Gautham Hospital, Kochi and Chazhikattu Hospital, Thodupuzha, for a period of 19 days. Hence, the appellant claimed a compensation of Rs.2,97,000/- from the respondents, which was limited to Rs.2,00,000/-. 3. The respondents 1 and 3 did not contest the proceeding and were set ex parte. 4. The second respondent had filed a written statement admitting that the Bus had a valid insurance coverage. It was contended that as the appellant was a workman under the first respondent, his remedy was to seek compensation under the Workmen's Compensation Act. The second respondent also contended that the 4 MACA No.1792 of 2009 compensation claimed under the different heads was excessive. 5. The appellant examined himself as PW1 and marked Exts A1 to A13 series in evidence. The second respondent produced the insurance policy, which was marked as Ext B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the second respondent an amount of Rs.1,28,700/- with interest and costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 8. Heard: Sri.Mathew John, the learned Counsel appearing for the appellant/petitioner and Smt.T.C Sowmiavathy, the learned counsel appearing for the second respondent – insurer. 9. The question that arises for consideration in the 5 MACA No.1792 of 2009 appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A3 charge-sheet filed by the City Traffic Police, Kochi in crime No.1997/2004 clearly proves that the accident happened due to the negligence of the third respondent. Admittedly, the first respondent was the owner and the second respondent was the insurer of the Bus. The second respondent has admitted that the Bus had a valid insurance coverage and has not proved that the first respondent had violated the terms of the insurance policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 11. The appellant has averred in the claim petition that he was a Conductor by profession and was earning a monthly income of Rs.5,000/-. However, the Tribunal fixed 6 MACA No.1792 of 2009 the notional monthly income of the appellant at Rs.3,000/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2004, I re-fix the appellant's notional monthly income at Rs.4,500/-. ## **Loss of earnings** 14. It is proved by Ext A5 discharge summary and Ext A11 disability certificate that the appellant had sustained a compound fracture of both bones of his left leg. As the appellant was a Conductor by profession, I hold that he was indisposed for a period of three months. 15. In view of the refixation of the notional monthly income of the appellant at Rs.4,500/-, I refix the loss of 7 MACA No.1792 of 2009 earnings at Rs.13,500/- instead of Rs.6,000/- awarded by the Tribunal. ## **Disability of the appellant** 16. The appellant was examined by a three member Medical Board of the Taluk Headquarters Hospital, Thodupuzha. The Medical Board has found that the appellant had sustained a compound fracture of both bones of his left leg in the accident. The Medical Board has assessed the permanent disability of the appellant at 22%. However, the Tribunal fixed the permanent disability of the appellant at 12%. 17. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)],** the Hon'ble 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, as the appellant was a Conductor by profession and he had sustained a compound fracture of both bones of his left leg and the duly 8 ## MACA No.1792 of 2009 constituted Medical Board has assessed his permanent disability at 22%, I hold that the appellant's functional disability has to be fixed at 22% as reflected in Ext A11. ## **Multiplier** 19. As the appellant was aged 22 years at the time of the accident, following the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier is '18'. ## **Loss due to disability** 20. Taking into account the above mentioned factors, i.e., the monthly income of the appellant at Rs.4,500/-, the multiplier at '18' and his functional disability at 22%, I hold that the appellant is entitled to compensation for loss due to disability at Rs.2,13,840/-, instead of Rs.69,120/awarded by the Tribunal. ## **Loss of amenities** 21. It is seen that the Tribunal has not awarded any amount under the head 'loss of amenities'. Considering 9 MACA No.1792 of 2009 the fact that the appellant was treated as an inpatient for a period of 19 days, he was indisposed for a period of three months and he has suffered a functional disability at 22%, I hold that the appellant is entitled to an amount of Rs.15,000/- under the head 'loss of amenities'. ## **Bystander expenses and extra nourishment** 22. The Tribunal has awarded an amount of Rs.1,500/- towards extra nourishment and Rs.3,000/towards bystander expenses. 23. Taking into account the fact that the appellant was treated as an inpatient for a period of 15 days , I hold that he is entitled for an amount of Rs.250/- per day, for a period of 15 days for both bystander expenses and extra nourishment, which amounts to Rs.4,750/- each under the said heads. ## **Other heads of claim** 24. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just 10 MACA No.1792 of 2009 compensation. 25. On a comprehensive re-appreciation of the pleadings, 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 re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|6,000/-|13,500/-| |2|Transport to hospital|7,000/-|7,000/-| |3|Extra nourishment|1,500/-|4,750/-| |4|Medical expenses|27,055/-|27,055/-| |5|Bystander expenses|3,000/-|4,750/-| |6|Pain and sufferings|15,000/-|15,000/-| |6|Loss of amenities|nil|15,000/-| |7|Loss due to disability|69,120/-|2,13,840/-| ||Total|1,28,675/-<br>rounded off to<br>Rs.1,28,700/-|3,00,895/-| 11 MACA No.1792 of 2009 In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.1,72,195/-** (Rupees One Lakh Seventy Two Thousand One Hundred and Ninety Five only) with interest at the rate of 8% per annum from the date of claim petition till the date of deposit and a cost of Rs.10,000/-. The second respondentinsurer is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant, after deducting his liability, if any, towards balance court-fee and in accordance with law. Sd/- sks/9.11.2021 **C.S.DIAS, JUDGE**