Joseph @ George M.S. and Ammini v Mini @ Rani and Gopi V. Bhaskaran and National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942** **MACA.No.632 OF 2015(D)** **AGAINST THE AWARD IN OPMV 1132/2011 DATED 29-09-2014 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA** ## **APPELLANT/S:** **1 JOSEPH @ GEORGE M.S. AGED 49 YEARS R/O.MANIYANKOTTU THAZHATHIL VEEDU,, ANANDAPALLI P.O., ADOOR, PATHANAMTHITTA. 2 AMMINI AGED 45 YEARS W/O.JOSEPH, R/O.MANIYANKOTTU THAZHATHIL VEEDU,, ANANDAPALLI P.O., ADOOR, PATHANAMTHITTA. BY ADVS. SRI.P.HARIDAS SRI.P.C.SHIJIN** ## **RESPONDENT/S:** |**1**|**MINI @ RANI**| |---|---| ||**W/O.ANANDANM B., R/O.VALLUVILA VEEDU,**| ||**ANANDAPALLI P.O., ADOOR, PATHANAMTHITTA - 689**| ||**645.**| |**2**|**GOPI V. BHASKARAN**| ||**S/O.BHASKARAN, R/O.VALLUVILA VEEDU,**| ||**ANANDAPALLI P.O., ADOOR, PATHANAMTHITTA - 689**| ||**645.**| ## **MACA.No.632 OF 2015** **==> picture [18 x 7] intentionally omitted <==** **3 DIVISIONAL MANAGER** **NATIONAL INSURANCE CO.LTD., KAYAMKULAM - 689 645.** **R1, R3 BY ADV. SRI.T.V.AJAYAKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2020, THE COURT ON 16-12-2020 DELIVERED THE FOLLOWING:** **MACA.No.632 OF 2015** **==> picture [17 x 8] intentionally omitted <==** ## **JUDGMENT** ## **Dated this the 16[th] day of December 2020** The appellants were the petitioners in OP (MV) No.1132 of 2011 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that the 1[st] petitioner sustained in a motor accident that took place on 01.09.2010. 3. The case of the petitioners, in brief, in the claim petition was that, the 2[nd] petitioner is the next friend and wife of the 1[st] petitioner. On 01.09.2010, while the 1[st] petitioner was standing at Anandappally junction, a maruti car bearing Regn.No.KL-26/A-9662 driven by the ## **MACA.No.632 OF 2015** **==> picture [18 x 8] intentionally omitted <==** 1[st] respondent in a rash and negligent manner, hit the 1[st] petitioner. The 1[st] petitioner sustains serious injuries and was admitted as an inpatient in the Medical College Hospital, Kottayam from 01.09.2010 to 21.09.2010. The 1[st] petitioner was a rubber tapper by profession and was earning a monthly income of Rs.12,000/-. The 2[nd] respondent was the owner of the vehicle and the 3[rd] respondent was the insurer. The petitioners had claimed a total compensation of Rs.10,00,000/- under various heads. 4. The respondents 1 and 2 were set ex parte. 5. The 3[rd] respondent filed a written statement, inter alia, contending that the vehicle was covered by a valid insurance policy. However, the 3[rd] respondent denied the liability of the insured due to violation of policy conditions. According to the 3[rd] respondent, the accident was caused due to the negligence on the part of the 1[st] petitioner, who crossed the road without obeying the traffic regulations. The compensation claimed was ..5.. ## **MACA.No.632 OF 2015** excessive and exorbitant. 6. The petitioners produced and marked Exhibits A-1 to A-8 series in evidence. 7. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the respondents 1 to 3 to pay an amount of Rs.5,67,820/- with interest at the rate of 9% per annum from the date of petition till realization with proportionate costs. 8. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |**Sl.**<br>**No.**|**Head under which**<br>**compensation is claimed**|**Amount claimed**<br>**(in Rupees)**|**Amount allowed**<br>**(in Rupees)**| |---|---|---|---| |1|Loss of Future earnings|----|268,320| |2|Loss of earnings|1,50,000|48,000| |3|Transport to hospital|25,000|15,000| |4|Extra nourishment|25,000|12000| |5|Damage to clothing and articles|2,000|500| |6|Others:-<br>(a) Medical expenses|50,000|20,000| ||Bystander expenses|50,000|18,000| |7|Pain and sufferings`|0|1,00,000| |8|Permanent disability|300,000|86,000| ## **MACA.No.632 OF 2015** ..6.. |9|Loss of amenities|98,000|----| |---|---|---|---| ||**Total**|**Rs.3,00,000/-**|**Rs.75,980/-**| 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal before this Court. 10. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the 3[rd] respondent/3[rd] respondent. 11. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable? 12. 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 **MACA.No.632 OF 2015** **==> picture [17 x 8] intentionally omitted <==** through the prism of fairness, reasonableness and nonviolation of the principle of equability. 13. It is an undisputed fact that the 1[st] petitioner was aged 49 years as on the date of accident, i.e., 01.09.2010. It is the specific case of the petitioners that the 1[st] petitioner was a rubber tapper by profession and earning a monthly income of Rs.12,000/-. The petitioners also produced Exhibit A-6 disability certificate which substantiates that the 1[st] petitioner has a disability of 43%. 14. The Tribunal after considering the evidence and materials on record, by the impugned award fixed the 1[st] petitioner’s notional income at Rs.4,000/-. Accordingly, the Tribunal awarded an amount of Rs.5,67,820/-. 15. The appellants/petitioners have produced Annexure A-1 certificate before this Court to substantiate that the 1[st] petitioner has now a disability of 80%. Therefore, the loss of disability has to be calculated in accordance with Annexure – A1 certificate. **MACA.No.632 OF 2015** ..8.. 16. On an appreciation of Exhibit A-6 certificate issued by the Medical Board, pursuant to the direction of the Tribunal, it is seen that a duly constituted Medical Board consisting of five medical experts, after examining the 1[st] petitioner, found that he has a permanent disability of 43%. This certificate was issued on 16.04.2011. The Tribunal, on the basis of Exhibit A-2, came to a conclusion that the petitioner has a disability of 43%. Now, before this Court, the petitioners have produced Annexure A-1 dated 31.05.2019 issued by a consultant orthoepaedic surgeon of the General Hospital, Adoor, wherein it is certified that the petitioner has 80% permanent loco moto disability. 17. It is unfortunate that the 1[st] petitioner’s leg was amputated due to the accident. There is no change in circumstances of the disability of the 1[st] petitioner as on the date of issuance of Exhibit A-6 on 16.04.2011 till date because the disability of the petitioner is due to the amputation, which was certified by a duly constituted ## **MACA.No.632 OF 2015** ..9.. Board at 43%. Now by Annexure-A1, the Doctor has certified that the 1[st] petitioner has 80% permanent loco moto disability. The Doctor has not certified the disability in respect of the limb that has been amputated, which is mandatory in law. Therefore, I am of the firm opinion that the disability certified by the Doctor in Annexure A-1 cannot supercede the findings of the duly constituted Medical Board, who has certified in Exhibit A-6 that the 1[st] petitioner has 43% disability. Hence, I am not inclined to accept the Annexure-A1 certificate issued by the Doctor. The same is therefore rejected and I fix the disability of the 1[st] petitioner at 43% itself, as per Exhibit A-6. ## **Income** 18. The next point that arises for consideration is with regard to the notional income fixed by the Tribunal at Rs.4,000/-. The 1[st] petitioner had claimed that he was a rubber tapper and that he was earning an amount of Rs.12,000/-. **MACA.No.632 OF 2015** ..10.. 19. The law in respect of notional income is well settled by a host of judicial pronouncements by the Hon'ble Supreme Court, particularly in **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236] and **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd.** [(2014) 2 SCC 735]. 20. The Hon'ble Supreme Court in **Ramachandrappa** (supra) has fixed the notional income of a coolie worker in the year 2004 @ Rs.4,500/- per month. In **Syed Sadiq** (supra), the Hon'ble Supreme Court fixed the notional income of a vegetable vendor in the year 2006 @ Rs.6,500/- per month. 21. This Court in **Soman vs. Jinesh James and others** [ILR 2020 (3) Kerala 1003] has fixed the notional income of a coolie worker in the year 2010 @ Rs.7,500/per month. 22. Going by the parameters laid down in the afore cited decisions and considering the fact that the 1[st] ## **MACA.No.632 OF 2015** ..11.. petitioner was a rubber tapper and that the accident occurred on 01.09.2010, I am of the definite opinion that the petitioner's notional income can safely be re-fixed at Rs.8,000/-, instead of Rs.4,000/- fixed by the Tribunal. Accordingly, I re-fix the notional income of the 1[st] petitioner @ Rs.8,000/- per month. ## **Loss of Earnings** 23. In light of the re-fixation of the monthly income of the 1[st] petitioner at Rs.8,000/-, I re-fix the loss of earnings of the 1[st] petitioner for twelve months at Rs.96,000/- instead of Rs.48,000/- arrived at by the Tribunal. ## **Loss of amenities** 24. Similarly, in view of the re-fixation of the notional income, the loss of amenities of the 1[st] petitioner is enhanced to Rs.10,000/- from Rs.8,000/- fixed by the Tribunal. **MACA.No.632 OF 2015** ..12.. ## **Future Prospects with loss due to disability** 25. The Tribunal has rightly adopted multiplier @ 13. However, it is seen that the Tribunal has failed to award future prospects to the 1[st] petitioner. 26. It is settled law in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], **United India Assurance Company Ltd. v. Satinderr Kaur @ Satwinder Kaur** [2020(3) KLT 760] and **Pappu Deo Yadav Vs. Naresh Kumar and others** (Civil Appeal No.2567 of 2020) that a person is entitled for future prospects in addition to loss due to disability. 27. In the said circumstances, considering that the 1[st] petitioner was 49 years old and the multiplier is 13, I award 25% towards future prospects. Considering the disability of the 1[st] petitioner at 43% and his income at Rs.8,000/-, I re-fix the compensation under loss due to disability with future prospects at Rs.6,70,800/- instead of Rs.86,000/- awarded by the Tribunal under the head 'loss due to disability' and Rs.2,68,320/- under the head loss of ## **MACA.No.632 OF 2015** ..13.. future earnings. 28. With respect to the compensation under the other heads of claim, I find that the compensation awarded by the Tribunal is reasonable and just. Therefore, I do not find any reason to enhance the amounts under the above heads of claim. 29. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the afore cited decisions, I am of the firm opinion that the 1[st] petitioner is entitled for enhanced compensation under the heads of claim modified, re-fixed and re-calculated above, and given in the table below for easy reference. |**Sl.**<br>**No.**|**Head under which**<br>**compensation is claimed**|**Amount claimed**<br>**(in Rupees)**|**Amount**<br>**allowed**<br>**(in Rupees)**|**Amounts**<br>**modified and**<br>**recalculated by**<br>**this Court**| |---|---|---|---|---| |1|Loss of Future earnings|----|2,68,320|------| |2|Loss of earnings|1,50,000|48,000|96,000| |3|Transport to hospital|25,000|15,000|15,000| |4|Extra nourishment|25,000|12,000|12000| |5|Damage to clothing and<br>articles|2,000|500|500| ## **MACA.No.632 OF 2015** ..14.. |6|Others:-<br>(a) Medical expenses|50,000|20,000|20,000| |---|---|---|---|---| ||Bystander expenses|50,000|18,000|18,000| |7|Pain and sufferings`|1,00,000|1,00,000|1,00,000| |8|Permanent disability|3,00,000|86,000|6,70,800<br>(with future<br>prospects)| |9|Loss of amenities|98,000|----|----| ||**Total**|**Rs.10,00,000/-**|**Rs.5,67,820/-**|**Rs.9,32,300/-**| In the result, the appeal is allowed by re-fixing the compensation at Rs.9,32,300/- (Rupees Nine Lakh Thirty Two Thousand and Three Hundred only) with interest at the rate of 9% per annum from 28.10.2011 till the date of payment with proportionate costs, instead of Rs.5,67,820/- fixed by the Tribunal in the impugned award, i.e., a further enhancement of Rs.3,64,480/(Rupees Three Lakh Sixty Four Thousand Four Hundred Eighty Only). The 3[rd] respondent shall deposit the additional compensation granted in the appeal before the Tribunal together with interest @ 9% per annum from the date of petition till the date of deposit with proportionate costs within a period of two months from the date of ## **MACA.No.632 OF 2015** **==> picture [22 x 8] intentionally omitted <==** receipt of a certified copy of the judgment, after deducting the liability, if any, of the petitioners towards balance court-fee and legal benefit fund. The disbursement of the compensation, if any, and the additional compensation to the petitioners shall be done by the Tribunal, in accordance with law. **Sd/-** **C.S.DIAS JUDGE** kkj