K. Benny Peter v. Oriental Insurance Co. Ltd. and Others

1 MACA No.807 of 2010 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943 MACA NO. 807 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 560/2005 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** K.BENNY PETER, S/O.K.O PETER 40/1018, ST:VINCENT ROAD,, PALARIVATTOM, COCHIN - 25, EKM DIST. BY ADV SRI.G.BALAMURALEEDHARAN (PARAVUR) ## **RESPONDENT/S:** 1 ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDINGS, M.G.ROAD,, THRISSUR. 2 SHANAVAS, SIBI MANZIL PAZHAMBALAKKODU, PALAKKAD. 3 VIJAYAN P.M., S/O.ACHUTHAN VILAKKAKUNNEL HOUSE, PILAKKODE,, CHELAKKARA, THRISSUR. BY ADVS. SRI.DINESH MATHEW J.MURICKEN R3 SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.807 of 2010 ## **C.S.DIAS, J. ====================== MACA No.807 of 2010** ## **====================== Dated this the 10[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 560/2005 on the file of the Motor Accident Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 11.4.2004. It was his case that,on the above said date, while he was driving a car bearing registration No.TN 59/M 3649 from Madurai to Chalakkudy, a lorry bearing registration No.NL 02/D 1139, driven by the third respondent in a rash and negligent manner, hit the car of the appellant. The appellant's wife and child were also travelling in the car. The appellant sustained serious injuries including 3 MACA No.807 of 2010 fractures and was treated as an inpatient at two hospitals for a period of 37 days. The appellant was a Marketing Manager in a Private Company and was drawing a monthly income of Rs.10,000/-. The car was owned by the second respondent and insured with the first respondent. Hence, the appellant claimed a compensation of Rs.11,42,500/- from the respondents. 3. The other injured in the same accident also filed OP(MV) Nos 3604 and 559 of 2005 before the same Tribunal seeking compensation. 4. The respondents 2 and 3 did not contest the proceedings and were set ex parte. 5. The first respondent had filed a written statement admitting that the lorry had a valid insurance coverage. However, the first respondent contended that the accident occurred due to the negligence of the appellant. The first respondent also disputed the age, income and occupation of the appellant. 4 MACA No.807 of 2010 6. The Tribunal consolidated and jointly tried the three claim petitions. 7. The appellant was examined as PW1 and Exts A1 to A32 were marked in evidence in the three claim petitions. The third respondent produced Ext B1 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petition, in part, by permitting the appellant to recover from the first respondent an amount of Rs.2,74,600/with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard: Sri.G.Balamuraleedharan, the learned Counsel appearing for the appellant/ petitioner, Sri.Dinesh Mathew J.Muricken, the learned counsel appearing for the third respondent and Sri.P.Jacob Mathew, the learned counsel appearing for the first 5 MACA No.807 of 2010 respondent/insurer. 11. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Income** 12. The appellant had claimed that he was working as a Marketing Manager in a Private Company and was drawing a monthly income of Rs.10,000/-. 13. The Tribunal for the reason that the appellant had not proved the salary certificate through its author, fixed the notional monthly income of the appellant at Rs.5,000/-. 14. Taking note of the fact that the accident occurred in the year 2004, I confirm the finding of the Tribunal regarding the fixation of notional monthly income of the appellant at Rs.5,000/-. ## **Disability** 6 MACA No.807 of 2010 15. The appellant had asserted that he had suffered a permanent disability. He produced Ext A24 disability certificate to prove that he has permanent disability of 31%. However, the Tribunal fixed the functional disability of the appellant at 16%. 16. This Court by order dated 8.10.2021, dissatisfied with Ext A24 disability certificate and following the principles laid down in **Raj Kumar v. Ajay Kumar [2011** **(1) KLT 620(SC)]** , referred the appellant to a duly constituted Medical Board attached to the District Hospital, Ernakulam. The Medical Board, after examining the appellant, has assessed the appellant's disability at 9% due to 1cm shortening of his right leg. I accept the disability certificate issued by the three member Medical Board of the District Hospital, Ernakulam, which is marked in evidence as Ext X1. 17. Taking into consideration the fact that the appellant was a Marketing Manger, I fix his functional 7 MACA No.807 of 2010 disability at 9% again following the principles in **Raj Kumar** (supra). ## **Multiplier** 18. The appellant was 44 years at the time of the accident. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '14'. ## **Loss due to disability** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.5,000/-, the multiplier at '14', and the appellant's functional disability at 9%, I award him an amount of **Rs.75,600/-** towards loss due to disability, i.e., an enhancement by a further amount of **Rs.24,600/-** under the said head. ## **Bystander expenses and Extra Nourishment** 20. It is proved that the appellant was treated as an inpatient for a period of 37 days in three spells in two 8 MACA No.807 of 2010 hospitals. Therefore, I award the appellant an amount of Rs.250/- per day for a period of 37 days towards bystander expenses, which works out to Rs.9,250/-, i.e., an enhancement of **Rs.5,250/-** . 21. Similarly, I award the appellant an amount of Rs.150/- per day for a period of 37 days towards extra nourishment, which works out to **Rs.5,550/-** . ## **Other heads of compensation** 22. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of **Rs.35,400/-** (Rupees Thirty Five Thousand Four Hundred only) (i.e, a further amount of Rs.24,600/- towards loss due to disability + a further amount of Rs.5,250/- towards bystander expenses + an amount of Rs.5,550/- towards extra nourishment) with interest on the enhanced amount 9 MACA No.807 of 2010 at the rate of 7% per annum from the date of claim petition till the date of deposit and a cost of Rs.5,000/-. The first respondent/insurer 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, in accordance with law. SD/- sks/10.1.22 **C.S.DIAS, JUDGE**