Josemon @ Joseph s/o Padammattummal Thomas v. Sajayan s/o Kuttan and The Manager, New India Assurance Co., Ltd.

1 MACA No.2703 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 11[TH] DAY OF OCTOBER 2021 / 19TH ASWINA, 1943 MACA NO. 2703 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 645/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/S:** JOSEMON @ JOSEPH S/O.PADAMMATTUMMAL THOMAS, THURUTHIPURAM, PUTHENVELIKKARA, PARAVUR TALUK, ERNAKULAM DISTRICT REPRESENTED BY THE POWER OF ATTORNEY HOLDER THOMAS S/O.OUSU PADAMMATTUMMAL HOUSE, THURUTHIPURAM, PUTHENVELIKKARA, PARAVUR TALUK, ERNAKULAM DISTRICT. BY ADV SRI.T.N.MANOJ ## **RESPONDENT/S:** 1 SAJAYAN S/O.KUTTAN, 7/128, GURUVILASOM, IRINJALAKUDA VILLAGE, IRINJALAKUDA P.O.686502 2 THE MANAGER NEW INDIA ASSURANCE CO., LTD, MAIN ROAD IRINJALAKUDA.686502 BY ADVS. SMT.P.R.REENA SRI.RENIL ANTO KANDAMKULATHY SRI.RENJITH THAMPAN SR. SRI.THOMAS MATHEW NELLIMOOTTIL **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2703 of 2012 ## **C.S.DIAS, J. ====================== MACA No.2703 of 2012** ## **====================== Dated this the 11[th] day of October, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.645/2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. 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 30.10.2005. It was his case that, on the said day, while he was travelling as pillion on a motor cycle bearing registration No.KL-8/N 1883 along the Chandakunnu-Edathirinji public road, when the vehicle reached near Durga Devi temple, another motor cycle bearing registration No.KL-8/AF 1794 (offending motor cycle) ridden by the first respondent in a negligent manner 3 MACA No.2703 of 2012 and in a high speed, hit the motor cycle on which the appellant had travelled. The appellant sustained serious injuries and was treated at Irinjalakkuda Co-operative Hospital, Nadavaramba in three spells spanning 43 days. The offending motor cycle was owned by the first respondent and insured with the second respondent. The appellant was a Mechanic of Air Conditioners by profession and earning a monthly income of Rs.4,500/-. The appellant claimed a compensation of Rs.3,30,000/- from the respondents, which was limited to Rs.2,50,000/-. 3. The rider of the motor cycle also filed OP (MV) 646/2006 before the same Tribunal seeking compensation on account of the injuries sustained by him. 4. The first respondent did not contest the proceedings and was set exparte. 5. The second respondent filed separate written statements in both the claim petitions admitting that the offending motor cycle had a valid insurance policy. 4 MACA No.2703 of 2012 However, it was contended that the amount of compensation claimed was excessive. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in two claim petitions produced and marked Exts A1 to A14 in evidence. The second respondent marked Exts B1 and B2 insurance policies in evidence. 8.. The Tribunal, after considering the pleadings and materials on record, by its common award, allowed the captioned claim petition, by permitting the appellant to realise from the second respondent an amount of Rs.1,27,725/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.T.N Manoj, the learned counsel appearing for the appellant/petitioner, Smt.P.R Reena, the learned counsel appearing for the first respondent and 5 MACA No.2703 of 2012 Sri.Thomas Mathew Nellimoottil, the learned counsel appearing for the second respondent. 11. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal reasonable and just. ## **Negligence and liability** 12. Ext A2 charge-sheet filed by the Irinjalakkuda Police in Crime No.853/2003 substantiates that the accident occurred due to the negligence of the first respondent. Undisputedly, the second respondent was the insurer of the offending motor cycle. The second respondent admitted that the motor cycle had a valid insurance policy and had not proved that the first respondent had violated the policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent. ## **Notional Income** 13. The appellant had claimed that he was a 6 MACA No.2703 of 2012 Mechanic of Air Conditioners and earning a monthly income of Rs.4,500/-. However, the Tribunal fixed the monthly notional income of the appellant at Rs.2,000/-. 14. 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. 15. Following the yardstick in the aforecited decision and keeping in mind that the accident occurred in the year 2005, I fix the monthly notional income of the appellant at Rs.4,500/-, as claimed in the claim petition. ## **Loss of earnings** 16 It is on record that the appellant sustained serious injuries as evidenced by Exts A4, A5, A11 and A12 discharge summaries. He was treated as inpatient in three spells spanning a period of 43 days from 30.10.2005 to 21.11.2005, 30.11.2005 to 10.12.2005 and 18.4.2006 to 7 MACA No.2703 of 2012 29.4.2006. Thus, I hold that the appellant was indisposed for a period of six months. 17. In view of the refixation of the notional monthly income of the appellant at Rs.4,500/-, I refix his loss of earnings at Rs.27,000/-, instead of Rs.8,000/- awarded by the Tribunal. ## **Loss due to disability** 18 **.** The appellant had produced Ext A8 disability certificate wherein it is certified that the appellant has a restriction of his right knee movements beyond 100 degrees flexion, moderate pain around anterior aspect knee joint due to secondary PF arthritis and waisting of right thigh muscles by 2 cm. The Doctor who treated the appellant assessed his permanent disability at 10%. 19. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that what needs to be looked into in a case of compensation for injury is the functional disability of the injured-claimant. 8 MACA No.2703 of 2012 20 **.** In the instant case, the appellant is a Mechanic of Air Conditioners. The restriction of his right knee movements beyond 100 degrees flexion and waisting of right thigh muscles by 2 cm will certainly impair his occupation. In Ext A8, the Doctor has assessed the appellant's functional disability at 10%, but the Tribunal fixed the same at 5%, which according to me is on the lower side. Therefore, I refix the functional disability of the appellant at 10%. 21. Admittedly, the appellant was aged 22 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier is '18'. 22. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.4,500/-, his functional disability at 10% and the multiplier at '18', I refix the compensation for loss due to disability at Rs.97,200/- instead of Rs.20,400/- awarded by the Tribunal. 9 MACA No.2703 of 2012 ## **Bystander expenses** 23. The appellant had claimed an amount of Rs.9,000/- as bystander expenses. However, the Tribunal awarded only an amount of Rs.5,000/-. It is proved that the appellant was treated as inpatient for a period of 50 days in three spells in the same hospital. It is also found that he was indisposed for a period of six months. In such circumstances, I award an amount of Rs.9,000/- as bystander expenses as claimed in the claim petition. ## **Loss of amenities** 24. The appellant had claimed an amount of Rs.20,000/- as compensation towards loss of amenities. It is proved and held that the appellant has 10% functional disability. He was treated as inpatient for a period of 50 days and was indisposed for a period of six months. Therefore, I award him a further amount of Rs.5,000/towards loss of amenities. 10 MACA No.2703 of 2012 ## **Other heads of compensation** 25. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 26. On an over all re-appreciation of the pleadings, materials on record and the law referred to in the aforecited 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 the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|8,000/-|27,000/-| |2|Medical and miscellaneous<br>expenses|73,825/-|73,825/-| |3|Bystander expenses|5,000/-|9,000/-| |4|Transportation expenses|500/-|500/-| |5|Pain and sufferings|15,000/-|15,000/-| |6|Loss of disability|20,400/-|97,200/-| |7|Loss of amenities|5,000/-|10,000/-| ||Total|1,27,725/-|2,32,525/-| 11 MACA No.2703 of 2012 In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of **Rs.1,04,800/-** (Rupees One Lakh Four Thousand Eight Hundred only) with interest at the rate of 7% per annum on the enhanced compensation from the date of claim petition till the date of deposit and a cost of Rs.4,000/-. Even though this Court had by order dated 19.3.2021 in C.M Appln 3178/2012 had ordered that the petitioner would be disentitled for interest for a period of 588 days, i.e., a period of delay in filing the appeal, it is brought to the notice of this Court that the above delay had occurred due to the mistake committed by the Tribunal. There were corrections in the certified copy of the award issued to the appellant and the corrections had to be carried out by the Tribunal on two occasions. Finally, the appellant received the certified copy of the award only after 17.2.2012. Therefore, after deducting the said period, the 12 MACA No.2703 of 2012 appeal was preferred well within the statutory time period. Hence, the appellant cannot be deprived of interest due to the mistake committed by the Tribunal. Therefore, I recall the order dated 19.3.2021 in C.M Appln 3178/2012 and hold that the appellant is entitled for interest all throughout the period, from the date of petition till the date of realisation. The second respondent is ordered to deposit the enhanced compensation 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 to the appellant in accordance with law. sd/- sks/11.10.2021 **C.S.DIAS, JUDGE**