Job Thaddeus K.A. v. Aliyar, V.K. Krishnan, The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 10[TH] DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943 MACA NO. 1909 OF 2012** **AGAINST THE AWARD DATED 30.06.2011 IN OPMV 75/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/CLAIMANT IN OP(MV):** JOB THADDEUS K.A AGED 43 YEARS S/O. K.V.ANTONY, RESIDING AT KANNOTH HOUSE CHAKALAKAL ROAD, PERUMANOOR, KOCHIN-682 015. BY ADV SRI.BIJU HARIHARAN ## **RESPONDENTS/RESPONDENTS:** 1 ALIYAR, S/O MR.MEETHIYAN, 6/299, PALATHOOR HOUSE, N. EZHIPRAM, MARAMPILLY P.O., 683 107. 2 V.K. KRISHNAN, S/O.KODIYAN KUNJU VENGATTU THARA, KONTHURUTHY, THEVARA, KOCHI-13. 3 THE ORIENTAL INSURANCE COMPANY LTD. REPRESENTED BY ITS MANAGER, BRANCH OFFICE, EBENEZER GARDENS, EDAPALLY H.S. JUNCTION COCHIN-24. BY ADVS. SRI.C.A.CHACKO SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1909-2012 ## -:2:- ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.75/2007 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 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 02.01.2006. It was his case that, on the above said date, while he was driving his motorcycle along the Pundit Karuppan Road, a Goods Autorickshaw bearing registration No. KL 17A 4207, driven by the second respondent in a negligent manner, hit against the motorcycle of the appellant. The appellant fell down and sustained serious injuries including a fracture of both bones of his right forearm. He was treated as an inpatient for a period of 17 days ## M.A.C.A.No.1909-2012 -:3:- at the Medical Trust Hospital, Ernakulam. The autorickshaw was owned by the first respondent and insured with the third respondent. The appellant was a landscaper by profession and earning a monthly income of Rs.4500/-. Hence, the appellant claimed a compensation of Rs.9,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set exparte. 4. The third respondent had filed a written statement denying the negligence on the part of the second respondent. It was contended that the accident occurred due to the negligence of the appellant. Nevertheless, the third respondent admitted that the autorickshaw had a valid insurance coverage. The third respondent also disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked Exhibits A1 to A10 in evidence. The respondents did M.A.C.A.No.1909-2012 -:4:- ## not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.2,54,284/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Biju Hariharan the learned counsel appearing for the appellant/petitioner, Sri. C.A.Chacko, the learned counsel appearing for the second respondent and Sri.Jacob Murickan, the learned counsel appearing for the third respondent. 9. 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** 10. Exhibit A2 charge sheet filed by the City M.A.C.A.No.1909-2012 ## -:5:- Traffic Police in Crime No.62/2006 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the autorickshaw. The respondents have not let in any evidence to discredit Exhibit A2. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a landscaper by profession and earning a monthly income of Rs.4500/-. For want of material, the Tribunal fixed the monthly income of the appellant on notional basis at Rs.3500/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** M.A.C.A.No.1909-2012 -:6:- [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I re-fix his notional monthly income at Rs.4500/- as claimed in the claim petition. ## **Loss of earnings** 14. It is proved that the appellant had suffered a fracture of both bones of his right forearm and was treated as an inpatient for a period of 17 days. As the appellant was a landscaper by profession, necessarily, he was indisposed for a period of four months. In view of the re-fixation of the notional monthly income of the appellant at Rs.4500/-, I award him an amount of Rs.18,000/- under the head ‘loss of earnings’, instead of Rs.7000/- awarded by the Tribunal. M.A.C.A.No.1909-2012 ## -:7:- ## **Disability** 15. The appellant had produced Exhibit A9 disability certificate issued by the Medical Board attached to the District Medical Officer, Ernakulam. The Medical Board in Exhibit A9 has certified that the appellant has a functional disability of 5% as per the MC Bride scale. I accept the said assessment. ## **Multiplier** 16. The appellant was aged 39 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 ‘15’. ## **Loss due to disability** 17. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.4500/-, his functional disability at 5% and the M.A.C.A.No.1909-2012 ## -:8:- multiplier at 15, I award him an amount of Rs.40,500/- toward ‘loss due to disability’, instead of Rs.31,500/- awarded by the Tribunal. ## **- By stander expenses and extra nourishment** 18. The Tribunal has awarded an amount of Rs.2125/- under the head ‘by-stander expenses’ and Rs,500/- under the head ‘extra nourishment. The amounts are too low. 19. On a consideration of the fact that the accident occurred in the year 2006, I award the appellant an amount of Rs.400/- per day for a period of 17 days towards ‘by-stander expenses’, which works out to Rs.6800/- and an amount of Rs.200/- per day for a period of 17 days towards ‘extra nourishment’ which works out to Rs. 3400/-. ## **Pain and sufferings and loss of amenities** 20. The Tribunal has awarded only an amount of Rs.18,000/- under the head ‘pain and sufferings and Rs.14,000/- under the head ’loss of amenities. M.A.C.A.No.1909-2012 ## -:9:- 21. Taking into account the fact that the appellant was treated as an inpatient for a period of 17 days, that he was indisposed for a period of four months and he has suffered a functional disability of 5%, I award him a further amount of Rs.12,000/- under the head ‘pain and sufferings’ and a further amount of Rs.11,000/- under the head ‘loss of amenities’. 22. With respect to the other heads of compensation, I find the same to be reasonable and just compensation. 23. 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 to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. M.A.C.A.No.1909-2012 ## -:10:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|7000|18000| |2|Transportation<br>expenses|500|500| |3|clothing|1000|1000| |4|Bystander expense|2125|6800| |5|Extra nourishment|500|3400| |6|Medical expenses|169659|169659| |7|Pain and sufferings|18000|30000| |8|Loss of amenities|14000|25000| |9|Compensation for<br>dis figuration|10000|10000| ||Loss<br>due<br>to<br>disability|31500|40500| ||**Total**|**254284**|**304859**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.50,575/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 324 days i.e. the period of delay in filing the appeal and as ordered by this Court M.A.C.A.No.1909-2012 -:11:- on 03.11.2021 in C.M. Application No./2012, and a cost of Rs.1000/-. 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 the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm/10.02.2022