Joby T. John v. Jolly and Others (MACA No. 842 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942** ## **MACA.No.842 OF 2014** **AGAINST THE AWARD IN OP(MV) 118/2007 DATED 28-07-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/CLAIMANT:** **JOBY T.JOHN, AGED 30 YEARS, S/O.JOHN, THAMARASSERIL HOUSE, MULLAPUZHACHAL P.O., ENANALLOOR VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT.** **BY ADV. SRI.S.SREEDEV** ## **RESPONDENTS/RESPONDENTS:** **1 JOLLY, S/O.JOSEPH, VELLANKAL HOUSE, KARIMATTOM, AYAVANA KARA, AYAVANA P.O., MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 2 SOMASEKHARAN NAIR, S/O.RAMAN NAIR, AMBATTU HOUSE, CHERUVATOOR KARA, ERAMALOOR VILLAGE, ALAPPUZHA DISTRICT. 3 ORIENTAL INSURANCE COMPANY, ORIENTAL INSURANCE CO. LTD., MUVATTUPUZHA BRANCH, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** **R1 BY ADV. SMT.SIJI BALAKRISHNAN R2 BY ADV. SIJI BALAKRISHNAN R3 BY ADV. SRI.GEORGE CHERIAN (SR.) R3 BY ADV. SRI.ALEXY AUGUSTINE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2021, THE COURT ON 16-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.842 OF 2014 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.118 of 2007 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The respondents in the claim petition are the respondents in the appeal. 2. The concise case of the petitioner in the claim petition, for the determination of the appeal, is: on 27.2.2006, while the appellant was accompanying a tipper lorry bearing Reg.No.KL-7K-4575 (offending vehicle), the offending vehicle overturned as a result of which the appellant sustained injuries. The accident occurred due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent. The 1[st] respondent is the registered owner of the offending vehicle and the 3[rd] respondent is its insurer. The appellant was a B.A, B.Ed. Graduate and a Contractor by profession. He was earning a monthly income of Rs.10,000/-. He sustained 100% disability due to the accident. Hence, the respondents 1 to 3 were jointly and severally liable to compensate the appellant, ## **MACA.No.842 OF 2014 3** which he quantified at Rs.15,21,500/-, but limited to Rs.10 lakh. 3. The respondents 1 and 2 did not contest the proceedings and were consequently set ex parte. 4. The third respondent filed a written statement, inter alia, admitting that the offending vehicle had a valid insurance policy, which was only a limited liability policy. The policy issued by the said respondent did not cover the appellant as he was a gratuitous passenger in the goods vehicle. The appellant was not entitled to claim any compensation from the 3rd respondent. The 3[rd] respondent had not collected any additional premium to cover the risk of a gratuitous passenger. In the enquiry conducted by the third respondent it was revealed that the accident did not occur due to the negligence of the 2[nd] respondent. The amounts claimed by the appellant were excessive and exorbitant. Hence, the claim petition as against the 3[rd] respondent be dismissed. 5. The appellant examined two witnesses as PWs. 1 ## **MACA.No.842 OF 2014 4** and 2 and Exts.A1 to A20 were marked in evidence. The 3[rd] respondent produced Ext.B1 insurance policy of the offending vehicle. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award, allowed the claim petition in part by permitting the appellant to recover an amount of Rs.11,95,500/- with 8% interest per annum from the date of application till the date of deposit and proportionate costs from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 8. Heard Sri. S.Sreedev, the learned Counsel appearing for the appellant/petitioner and Sri. George Cherian, the learned Senior Counsel appearing for the 3[rd] respondent. 9. The learned counsel appearing for the appellant argued that the notional income of the appellant fixed by the Tribunal was very low. Even though the appellant had pleaded that he was a B.A, B.Ed Graduate and a Contractor ## **MACA.No.842 OF 2014 5** by profession earning an amount of Rs.10,000/- per month, the Tribunal only fixed the notional income of the appellant at Rs.3,000/- per month, which is against the law laid down in _**Pushkar Mehra vs. Brij Mohan Kushwaha and Others [(2015) 12 SCC 688)]**_ , wherein the Hon'ble Supreme Court has fixed the notional income of a skilled Worker/Clerical and non technical supervisor for an accident that occurred in the year 2004 at Rs.7,020/- per month. He also relied on the decision of the Hon'ble Supreme Court in _**Kajal vs. Jagdish Chand and Others [(2020 (1) KLT 743 (SC)]**_ to fortify its contention that in the case of a person who sustains 100% disability, the Tribunal is bound to award future prospects and bystander expenses adopting the multiplier method. Therefore, he submitted that even though the appellant had limited the claim to Rs.10 lakh, it is by now trite that the appellant is entitled to just compensation as laid down by the Constitutional Bench of the Hon'ble Supreme Court in _**National Insurance Company Ltd., v. Pranay Sethi (2017 (16) SCC 680).**_ **MACA.No.842 OF 2014 6** 10. Per contra, Sri.George Cherian, the learned Senior Counsel appearing for the 3[rd] respondent argued that the Division Bench of this Court in _**Mithun Subramanian v. Nidhish Eldo Joseph and Another (2017 (3) KHC 710)**_ has held that only if a person is aggrieved, falling within the meaning of Section 173 of the Motor Vehicles Act, 1988, (in short 'Act') an appeal would be maintainable. In the present case the Tribunal has already awarded an amount of Rs.11,95,473/- as against the claim of Rs.10 lakh. Therefore, it can never be said that the appellant is an aggrieved person falling within the purview of Section 173 of the Act. He also relied on the decisions of the Hon'ble Supreme Court in _**Lalan D Alias Lal and Another v. Oriental Insurance Company Limited [(2020) 9 SCC 805)]**_ and _**Rajendra Singh v. National Insurance Company Limited (2020 (4) KLT 6 (SC)**_ to contend that **Kajal (supra)** was rendered in the peculiar facts and circumstances of that case, especially considering the fact that the victim was a minor child. He also submitted that quantum of compensation towards **MACA.No.842 OF 2014 7** bystander expenses was granted in **Kajal (supra)** on the peculiar facts of the case, which was awarded in **Lalan (supra)** as a composite amount. Since, the appellant has already been granted compensation more than what was claimed in the claim petition, the appeal is to be dismissed. 11. The questions that emanate for consideration in this appeal are (i) whether the appeal is maintainable in view of the fact that the Tribunal has already awarded compensation of more than what was claimed in the claim petition, if not (ii) what is the just and reasonable compensation payable in the present case. 12. In **Pranay Sethi (supra)** , the Constitutional Bench of the Hon'ble Supreme Court has held that the concept of compensation u/s.168 of the Act is just compensation, which has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal status. The concept of 'just compensation' has to be viewed to the prism of fairness, reasonableness and non violation of principles of equitability. **MACA.No.842 OF 2014 8** 13. In _**Nagappa v. Gurudayal Singh (2003) 1 KLT 115 (SC)**_ a three Judge Bench of the Hon'ble Supreme Court has categorically laid down the law that there is no restriction for the Tribunal/Court in awarding more compensation than what was claimed in the claim petition. 14. The above position stands fortified in _**Rajesh and Others v. Rajbir Singh (2013) 9 SCC 54),**_ where the Hon'ble Supreme Court has held that when the Act enables the Tribunal to award just compensation based on a report filed by the Police u/s.158(6) of the Act, there is no question of any reference to any claim for different heads of compensation. It is the duty of the Tribunal to built on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on the assessment of damages. The Tribunal has a duty cast upon it, irrespective of the claims made in the application to award just, equitable, fair and reasonable compensation if necessary, ignoring the claim made in the application for compensation. 15. In view of the aforecited authoritative **MACA.No.842 OF 2014 9** pronouncements by the Hon'ble Supreme Court in **Pranay Sethi, Nagappa and Rajesh v. Rajbir Singh (supra)** , I am of the firm opinion that the quantification of each head of claim averred by the victim/dependent in the claim petition need not be taken as the final word, but only treated as a benchmark to decide the just compensation. Ultimately it for the Tribunal/Court, guided by the broad parameters laid down by the Hon'ble Supreme Court and this Court in the plethora of decisions that the just compensation is to be determined and awarded. Merely because the appellant had limited the claim to Rs.10 lakh, will not preclude this Court from reexamining whether the appellant is entitled to enhancement of just compensation as laid down by the Hon'ble Supreme Court in whole line of authoritative precedents. More over, even going by the decision of the Division Bench of this Court in **Midhun Subramanian (supra)** it is laid down in paragraph 8 that, it would be open to the Tribunal(s) to grant compensation in excess of the amount claimed if in its opinion the claimant deserves just compensation than the amount **MACA.No.842 OF 2014 10** actually claimed. Thus, I have no hesitation to hold that this Court is not precluded from examining whether the amount awarded by the Tribunal is just or not and award more compensation than claimed in the claim petition. 16. The specific case of the appellant in the claim petition was that he was a Graduate and a Contractor by profession, and that he was earning a monthly income of Rs.10,000/-. The Tribunal ignoring the qualifications and profession of the petitioner, fixed the notional income of the appellant @ Rs.3,000/- per month. 17. The Hon'ble Supreme Court in _**Ramachandrappa**_ _**vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)**_ and _**Syed Sadiq and Others vs. Divisional Manager, United India Insurance Company (2014 (2) SCC 735)**_ has fixed the notional income of a Coolie Worker at Rs.4.500/- per month in the year 2004, and that of a Vegetable Vendor in the year 2008 at Rs.6500/- per month, respectively. In **Pushkar Mehra (supra)** , the Hon'ble Supreme Court has fixed the notional **MACA.No.842 OF 2014 11** income of a skilled Worker/Clerk and non technical supervisory staff, for an accident that occurred in the year 2004 @ Rs.7,020/- per month. 18. Following the above parameters laid down by the Hon'ble Supreme Court in the aforecited decisions and considering the fact that the appellant was only 29 on the date of accident and he was claimed to be a contractor by profession, I fix the notional income of the appellant @ Rs.6,000/- per month. 19. Going by Ext.A5 charge sheet r/w Ext.A3 vehicle mahazar and Ext.A4 AMVI report, it is proved that the accident occurred on 27.2.2006 due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent. It is also substantiated by Exts.A7 to A12 discharge records that the appellant sustained serious injuries in the accident. Ext.A19 disability certificate issued by the Medical Board, Ernakulam has also established that the appellant suffers from 100% permanent disability. Exts.A17 to A 18(b) Medical Bills proves that the appellant has sustained expenses for his **MACA.No.842 OF 2014 12** treatment. Similarly, the appellant was examined as PW1 and the Physiotherapist, who treated the petitioner was examined as PW2. All these aspects clinchingly prove that the accident was caused due to the 2[nd] respondent and that the appellant sustained serious injuries. 20. In a recent decision of the Hon'ble Supreme Court in _**Pappudeo Yadav v. Naresh Kumar and Others (AIR 2020 SC 4424)**_ , following a host of earlier precedents on the point of granting future prospects to a victim injured in an accident, it has been laid down that a self employed person and the relevant multiplier being 17, the appellant is entitled for future prospects @ 40%. Undisputedly, the Tribunal has not awarded any amount towards future prospects. Therefore, in view of the fact that the Tribunal has unilaterally fixed the notional income of the appellant @ Rs.3,000/- ignoring the law laid down in **Ramachandrappa, Syed Sadiq and Pushkar Mehra (supra)** and also that the Tribunal has failed to award any amount towards future prospects, I am of the definite view that the appellant is a ## **MACA.No.842 OF 2014 13** person, who is aggrieved by the impugned award as provided under Section 173(1) of the Act. Therefore, the appeal is sustainable at the instance of the appellant even though the appellant was awarded more than the amount that was claimed in the claim petition. Accordingly, I answer question No.(i) in favour of the appellant. ## **Loss due to disability with future prospects** 21. Now proceeding to the question No.(ii), I hold that in light of the re-fixation of the notional income of the appellant at Rs.6,000/- and that he is a person 29 years of age with the relevant multiplier of 17, going by the parameters laid down in **Papudiya Yadav supra** , I am of the opinion that the appellant is entitled to future prospects at 40%. Thus, the appellant is entitled for compensation under the head 'loss due to disability with future prospects' at Rs.17,13,600/instead of Rs.6,48,000/- awarded by the Tribunal. ## **Loss of Earnings** 22. Since the appellant was a person with 100% disability, I am of the opinion that grant of Rs.36,000/- under ## **MACA.No.842 OF 2014 14** the head 'loss of earnings' is wrong. There is no question of awarding any further amount under the said head, as compensation has been awarded under the head 'loss due to disability with future prospect's. In such circumstances, I set aside the amount awarded under the head 'loss of earnings'. ## **Bystander expenses:** 23. The Tribunal has awarded an amount of Rs.1,35,000/- under the head bystander expenses. It is proved beyond any doubt by Ext.A19, that the appellant has suffered 100% permanent disability and he requires the assistance of a bystander round the clock for the rest of his life. Going by the law laid down in **Kajal (supra)** , this Court is bound to follow the multiplier method. In the case on hand, the relevant multiplier is 17. If the bystander expenses is fixed at Rs.200/- per day, an amount of Rs.12,41,000/- would have to be paid under the head bystander expenses as laid down in **Kajal supra** . As pointed out in **Lalan (supra)** , the Supreme Court has adopted the multiplier method in **Kajal** taking into consideration is the peculiar facts and ## **MACA.No.842 OF 2014 15** circumstances. Therefore, in the case on hand as the appellant is 29 years and is being looked after his mother, I am of the opinion that a composite amount can be fixed towards bystander expenses. Accordingly, I refix the bystander expenses at Rs.3,00,000/- instead of Rs.1,35,000/fixed by the Tribunal. ## **Pain and suffering** 24. Taking into consideration the fact that the appellant has sustained 100% disability as a result of the accident, I am of the firm opinion that the amount of Rs.50,000/- awarded by the Tribunal under the head pain and suffering is less. Hence, I enhance the compensation under the said head by a further amount of Rs.25,000/-. ## **Other heads of claim** 25. With respect to the other heads of claim, namely, medical expenses, loss of amenities, loss due to marriage prospects, I find that the Tribunal has awarded just and reasonable compensation. 26. On an over all re-appreciation of the pleadings and **MACA.No.842 OF 2014 16** materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head|Amount<br>claimed<br>(in Rs.)|Amount<br>claimed<br>(in Rs.)|Amount<br>Awarded<br>by<br>the<br>Tribunal<br>(in Rs.)|Amounts<br>modified<br>and<br>recalculated by<br>this Court| |---|---|---|---|---| |||||| |Loss of earnings||90,000/-|36,000/-|-| |Bystander<br>(including<br>bystanders<br>expenses<br>and<br>transportation<br>expenses)||2,21,500/-|1,35,000/-|3,00,000/-| |Medical expenses||3,00,000/-|3,06,473/-|3,06,473/-| |Pain and suffering||50,000/-|25,000/-|50,000/-| |Loss of amenities||50,000/-|20,000/-|20,000/-| |Loss of marriage<br>prospects||3,00,000/-|25,000/|25,000/-| |Loss<br>due<br>to<br>disability<br>with<br>futureprospects|5,00,000/-||6,48,000/-|17,13,600/-| |Total|15,21,500||11,95,473-|24,15,073/-| **MACA.No.842 OF 2014 17** In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.12,19,600/- with interest at the rate of Rs.8% per annum on the enhanced compensation from the date of application till the date of deposit and proportionate costs. The third respondent shall deposit the enhanced compensation within a period of two months from the date of receipt of a certified copy of this judgment after deducting the liability of the appellant to pay the balance court fee and legal benefit on the enhanced compensation, if any. The disbursement of the compensation to the appellant shall be made by the Tribunal in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm