Jose s/o Varkey v. Shino s/o Joseph, Maya Shaji, and The National Insurance Company Limited

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 ## MACA NO. 174 OF 2013 AGAINST THE JUDGMENT IN OPMV 839/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM ## APPELLANT: JOSE` S/O.VARKEY, MANNANKARA NIKARTHIL, THURAVOOR, CHERTHALA, NOW RESIDING AT KANJIRATHUMOOTTIL, AMARA P.O., VENKOTTA, MADAPPALLY, CHANGANACHERRY. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.N.ASWATHY ## **RESPONDENTS:** 1 SHINO S/O.JOSEPH, THYNAMVEETTIL, THALAIKANAM, CHELACHUVADU P.O., KANJIKUZHY, IDUKKI 685602. 2 MAYA SHAJI W/O.C.O.SHAJI, CHAKKUPARAMBIL, KOKKAPILLY P.O., THIRUVANKULAM, ERNAKULAM-682305. 3 THE NATIONAL INSURANCE COMPANY LIMITED KOTTAYAM-686001. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.AGI JOSEPH SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.JOSON MANAVALAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 174 of 2013 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No.174 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of June, 2021 ## **JUDGMENT** The appellant was the petitioner in O.P(MV)No.839 of 2007 on the file of Motor Accident Claims Tribunal, Kottayam. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief in the claim petition, relevant for the determination of the appeal are: on 22.12.2006, while the appellant was walking along the PuthenkurishuThiruvankulam road, a lorry bearing registration No. KL-17/C 8206 driven by the 1[st] respondent in a rash and negligent manner, hit the appellant. The appellant sustained serious injuries and was treated at Medical College Hospital, Kolenchery as an inpatient from 22.12.2006 to 01.02.2007. He suffered a fracture and injury to his bladder and had a MACA No. 174 of 2013 3 deformity to his pelvis and crush injury on his hip. The appellant was an Agriculturist by profession and was also a manual labourer. He used to earn a monthly income of Rs.6,000/-. The 2[nd] respondent was the owner of the offending vehicle and 3[rd] respondent was the insurer. The appellant contended that respondents 1 to 3 were jointly and severally liable to which he at pay compensation, quantified Rs.13,18,000/-, but limited to Rs.10,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set exparte. 4. The 3[rd] respondent filed a written statement, disputing the age, occupation and income of the appellant. It was also contended that the accident occurred due to the negligence on the part of the appellant. 5. The appellant examined Pws 1 to 3 and Exts.A1 to A30 and Ext.X1 were marked in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award, allowed the claim MACA No. 174 of 2013 4 petition in part, by permitting the appellant to pay the an amount of Rs.4,89,755/- with interest at the rate of 7.5 % per annum from the date of the petition till the date of realisation along with proportionate costs. The 3[rd] respondent was directed to pay compensation amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. The sole question that emerges for consideration in this appeal is whether the compensation awarded by the Tribunal is reasonable and just. 9. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, MACA No. 174 of 2013 5 reasonableness and non-violation of the principle of equitability. 10. Ext.A2 charge sheet filed by the police substantiates that the accident occurred due to the rash and negligent driving of the offending vehicle by the 1[st] respondent. Undisputedly, the 2[nd] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. Hence the 3[rd] respondent is liable to indemnify the liability of the 2[nd] respondent. 11. On a re-appreciation of the pleadings and materials on record, it is proved that the appellant was hospitalised under different spells as seen from Ext.A18 to Ext.A22 discharge summaries during the period from 22.12.2006 to 02.09.2007, i.e spanning a period of nearly 10 months totalling 88 days. 12. It was the case of the appellant that he was a manual labourer and getting a monthly income of Rs.6,000/-. However, the Tribunal fixed his income at Rs.4,000/-. MACA No. 174 of 2013 6 13. 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. It was also held that an enhancement of Rs.500/- has to be made every year. 14. Taking into account the fact that the appellant was 46 years of age at the time of accident which occurred in 2006, I am of the opinion that the appellant's notional income has to be fixed at Rs.5,500/- per month, following the ratio in Ramachandrappa (supra). Hence I fix the notional income of the appellant at Rs.5,500/- per month. 15. Ext.X1 disability certificate issued by the Medical Board of the Government Medical College Hospital has certified that the appellant had neuro disability of 30% and orthopedic disability of 17%. The Tribunal has fixed the functional disability of the appellant at 40%. The appellant had not appeared before the Tribunal for personal assessment. MACA No. 174 of 2013 7 Therefore, I am of the opinion that the functional disability of the appellant assessed by the Tribunal at 40% is reasonable and just. ## Loss due to disability for future prospects 16. As the appellant was aged 46 years and the relevant multiplier being '13' and the appellant has a disability of 40%, the appellant is entitled for future prospects as laid down by the Hon'ble Supreme Court in Pappu Deo Yadav V. Naresh Kumar and others (AIR 2020 SC 4424) and a whole line of decisions on the point. Therefore, I fix the compensation under the head, loss due to disability along with future prospects at Rs.4,29,000/- instead of Rs. 2,49,600/- fixed by the Tribunal. ## Loss of Earnings 17. As the appellant's notional income has to be refixed at Rs.5,000/-, he is entitled to enhancement of compensation under the head, loss of earnings for a period of 10 months. Accordingly, I re-fix the compensation under the said head at MACA No. 174 of 2013 8 Rs.55,000/-. ## Pain and sufferings 18. On going through Ext.A3 wound certificate, Exts.A18 to A22 discharge summaries and Ext.X1 disability certificate, it is seen that the appellant had suffered serious injuries and had to undergo inpatient treatment for a period of nearly a year. Even though he claimed Rs.2,00,000/- towards pain and sufferings, only Rs.40,000/- was awarded under that head, which according to me, is on the lower side. Taking into account the said aspects, I am of the firm opinion that appellant is entitled to enhanced compensation under the said head at Rs.1,00,000/- . 19. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 20. On an overall appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I MACA No. 174 of 2013 9 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. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|**40,000/-**|**55,000/-**| |2|Transportation expenses|10,785/-|10,785/-| |3|Damages to clothing|500/-|500/-| |4|Bystander expenses|17,600/-|17,600/-| |5|Extra Nourishment|2,000/-|2,000/-| |6|Medical expenses|99,270/-|99,270/-| |7|Pain and sufferings|**40,000/-**|**1,00,000/-**| |8|Loss of amenities|30,000/-|30,000/-| |9|Loss due to disability for future<br>prospects|**2,49,600/-**|**4,29,000/-**| ||total|**4,89,755/-**|**7,44,155/-**| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.2,54,400/(Rupees Two lakhs Fifty four thousand four hundred only) with interest at the rate of 7.5% per annum on the enhanced compensation, from the date of petition till date of deposit, after excluding the period of 74 days, i.e, the period of delay in MACA No. 174 of 2013 10 filing the appeal and as ordered by this court on 25.03.2021 in C.M.A.No.195 of 2013, and proportionate costs. The 3[rd] respondent shall deposit the additional compensation awarded in this appeal before the Tribunal, along with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** **lgk/01.07.2021**