K. Janardhanan and others v. M.K. Abdul Najeem and others (MACA No. 265 of 2010)

MACA NO. 265 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** ## **MACA NO. 265 OF 2010** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 1271/2006 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/S:** - 1 K.JANARDHANAN, AGED 39 YEARS, S/O.KIZHAKKEKKARA KRISHNAN,REPRESENTED BY HIS WIFE BINDU, AGED 35 YEARS, WHO IS NEXT FRIEND AND GUARDIAN OF PETITIONER AND BOTH ARE RESIDING, AT PALAKALVATTI P.O,VIA THUVOOR,NILAMBUR TALUK. ADDL. APPELLANTS 2 TO 6 IMPLEADED - *2 BINDU P., W/O. LATE K.JANARDHANAN, AGED 42 YEARS, KIZHAKKEKKARA HOUSE, ARIKUZHY, PALAKALVATTI PO, THUVOOR, NILAMBUR TALUK, MALAPPURAM DISTRICT 679327 - *3 KUNCHI, MOTHER OF LATE JANARDHANAN, KIZHAKKEKKARA HOUSE, ARIKUZHY, PALAKALVATTI PO, THUVOOR, NILAMBUR TALUK, MALAPPURAM DISTRICT 679327 - *4 ASHWINI K.K., D/O.LATE K. JANARDHANAN, KIZHAKKEKKARA HOUSE, ARIKUZHY, PALAKALVATTI PO, THUVOOR, NILAMBUR TALUK, MALAPPURAM DISTRICT 679327 - *5 AISHWARYA K.K., D/O.LATE K.JANARDHANAN, KIZHAKKEKKARA HOUSE, ARIKUZHY, PALAKALVATTI PO, THUVOOR, NILAMBUR TALUK, MALAPPURAM DISTRICT 679327 - *6 ANASHWARA K.K., D/O.LATE K.JANARDHANAN, KIZHAKKEKKARA HOUSE, ARIKUZHY, PALAKALVATTI PO, THUVOOR, NILAMBUR TALUK, MALAPPURAM DISTRICT 679327 MACA NO. 265 OF 2010 2 ADDITIONAL APPELLANTS 2 TO 6 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED FIRST APPELLANT AS PER ORDER DATED 11.03.2019 IN IA 1/2019 IN MACA 265/2010. BY ADV SRI.K.M.SATHYANATHA MENON ## **RESPONDENT/S:** 1 M.K.ABDUL NAJEEM, S/O.ALAVI, MOONNUKANDAM HOUSE,P.O.THUVOOR, NILAMBUR TALUK, (DRIVER) 2 ABDUL RAZACK KURIKKAL, S/O.MOIDEENKUTTY KURIKKAL,MANCHERI HOUSE,, P.O.PAYYANAD, MALAPPURAM DISTRICT(OWNER). 3 THE ORIENTAL INSURANCE COMPANY LTD., JASEELA COMPLEX, NILAMBUR ROAD, P.O.MANJERI, (INSURER) BY ADV SRI.S.K.AJAY KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 265 OF 2010 3 ## **JUDGMENT** The original appellant was the petitioner in OP(MV) No.1271/2006 on the file of the Motor Accidents Claims Tribunal, Manjeri. Pending the appeal, the original appellant died and his legal representatives are impleaded as the additional appellants 2 to 6. The respondents in the appeal were the respondents before the Tribunal. 2. The original appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 24.04.2006. It was his case that, on the above said date, while he was riding his motor cycle bearing registration No.KL10.R.7184 along the Thuvoor -Ailassery road, a bus bearing registration No.KL-10A/9599 (bus), driven by the 1[st] respondent in a negligent manner and on the wrong side of the road, hit his motor cycle. The original MACA NO. 265 OF 2010 4 appellant sustained multiple injuries, including a compound fracture mandible left, mastoid fracture, subdural haemotoma, fracture of the sygoma right and fracture of both bones of his right leg. He was treated as an inpatient for a period of 195 days at the Al-Shifa Hospital, Perinthalmanna, Kovai Medical Centre and EMS Memorial Co-operative Hospital, Perinthalmanna. The original appellant was a Concrete Centring Worker and was earning a monthly income of Rs.7,500/-. The bus was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. The original appellant was permanently disabled. Hence, the original appellant claimed an amount of Rs.17,16,000/- as compensation from the respondents. 3. The respondents 1 and 2, though entered appearance through counsel, did not file any written statement. 4. The 3[rd] respondent had filed a written statement admitting that the bus had a valid insurance coverage. MACA NO. 265 OF 2010 5 However, the 3[rd] respondent disputed the age, income and occupation of the original appellant. 5. The original appellant had produced and marked Exts.A1 to A9 in evidence. The disability certificate issued by a three member Medical Board, attached to the District Hospital, Manjeri, was marked as Ext.X1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the original appellant to recover from the 3[rd] respondent an amount of Rs.12,74,816/- with interest and cost of Rs.1,000/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. K.M. Sathyanatha Menon, the learned counsel appearing for the appellants/petitioner and Sri. S.K.Ajaykumar, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The point that emerges for consideration in the 6 MACA NO. 265 OF 2010 appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A3 final report filed by the Police after investigation substantiates that the accident occurred due to the negligence of the 1[st] respondent. Indisputably, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Ext.A3 charge sheet. Likewise, the 3[rd] respondent has not proved that the 2[nd] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Income** 11. The original appellant had claimed that he was a Concrete Worker and was a Centring earning monthly income of Rs.7,500/-. The original appellant MACA NO. 265 OF 2010 7 did not produce any material to substantiate his pleading. Therefore, the Tribunal fixed the notional monthly income of the original appellant at Rs.2,500/-. 12. In **Ramachandrappa vs. Manager, Royal** : **Sundaram Alliance Insurance Company Ltd.** (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I refix the notional monthly income of the original appellant at Rs.5,500/-. ## **Disability** 14. The Tribunal, on the basis of Ext.X1 disability certificate, fixed the permanent disability of the original appellant at 100%. 15. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has categorically MACA NO. 265 OF 2010 8 held that what needs to be looked into an injury claim is the functional disability of the injured/claimant. 16. Going by nature of injuries in Ext.X1, I am of the definite view that the original appellant had a functional disability of 100%. ## **Future prospects** 17. In **V. Mekala v. M.Malathi and another –** [(2014) 11 SCC 178], **Jagdish v. Mohan and others** [(2018) 4 SCC 571], **Pappu Deo Yadav v. Naresh Kumar & others** [AIR 2020 SC 4424] and **Anthony @ Anthony Swamy vs The Managing Director, K.S.R.T.C** [ (2020) 7 SCC 161], the Hon'ble Supreme Court has repeatedly reminded the Tribunals/Courts that in a case of serious injury, the injured-claimant is entitled to future prospects. 18. Following the ratio in the aforecited decisions, and considering the grave injuries sustained by the original appellant, which had left him confined to his bed for the remaining period of his life, I hold that the 9 MACA NO. 265 OF 2010 original appellant is entitled to future prospects. As the original appellant was aged 35 years at the time of the accident, I hold that he is entitled to future prospects at 40%. ## **Multiplier** 19. The original appellant was aged 35 years at the time of the accident. In view of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant multiplier to be adopted is “16”. ## **Loss of earning capacity** 20. Taking into consideration the above mentioned factors, namely, monthly income of the original appellant at Rs.5,500/-, his functional disability at 100%, the multiplier at '16' and future prospects at 40%, I award him an amount of Rs.14,78,400/- towards ‘loss of earning capacity’ instead of Rs.4,80,000/awarded by the Tribunal. MACA NO. 265 OF 2010 10 ## **Loss of earnings** 21. The Tribunal found that the original appellant was indisposed for a period of 12 months. 22. On a re-appreciation of the materials on record, I find that the accident occurred on 24.04.2006 and the original appellant had filed the claim petition before the Tribunal on 12.10.2006, that is within a period of six months. Therefore, I am of the firm view that the original appellant is only entitled to 'loss of earnings' for a period of six months i.e., from the date of accident till the date of filing of the claim petition. 23. In view of the refixation of the notional monthly income of the original appellant at Rs.5500/-, I award him an amount of Rs.33,000/- towards ‘loss of earnings’, instead of Rs.30,000/- awarded by the Tribunal. ## **Extra nourishment and Bystander expenses and** 24. It is proved and established that the original appellant was treated as an inpatient for a period of MACA NO. 265 OF 2010 11 195 days. The Tribunal has awarded an amount of Rs.100/- per day towards extra nourishment and bystander expenses, which according to me is on the lower side. On a consideration of the fact that the original appellant was treated as an inpatient for a period of 195 days in the year 2006, I am of the definite view that he is entitled to Rs.200/- per day for 195 days towards 'extra nourishment and bystander expenses', which works out to Rs.39,000/-. ## **Pain and sufferings** 25. The Tribunal has awarded an amount of Rs.25,000/- under the head 'pain and sufferings as against the claim of Rs.50,000/-. 26. Taking into account the serious nature of injuries suffered by the original appellant, that he was treated as an inpatient for a period of 195 days, that he was indisposed for a period of 6 months and that he has suffered a functional disability of 100%, I hold that the original appellant is entitled to an additional MACA NO. 265 OF 2010 12 amount of Rs.25,000/- under the head 'pain and sufferings'. 27. With respect to the compensation awarded under the other heads, I find that the Tribunal has awarded reasonable and just compensation. 28. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellants are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [427 x 261] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 30,000 33,000<br> 2. Transportation 6,350 6,350<br>expenses<br>3. Clothing 250 250<br>4. Bystander expenses 19,500 39,000<br>5. Medical expenses 6,86,716 6,86,716<br>**----- End of picture text -----**<br> MACA NO. 265 OF 2010 13 **==> picture [427 x 200] intentionally omitted <==** **----- Start of picture text -----**<br> 6. Pain and sufferings 25,000 50,000<br>7. Future treatment 25,000 25,000<br>Loss for dis-figuration 2,000 2,000<br>8. Loss of earning 4,80,000 14,78,400<br>capacity<br>Total 12,74,816 23,20,716<br>**----- End of picture text -----**<br> 29. Even though the original appellant had claimed only an amount of Rs.17,60,000/- as compensation, I have awarded him more compensation than what is claimed in the claim petition by awarding the original appellant future prospects as well as fixing his functional disability at 100%. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC. In the result, the appeal is allowed by enhancing the compensation by an amount of **Rs.10,45,900/-** with interest @ 6% per annum from the date of petition MACA NO. 265 OF 2010 **==> picture [13 x 9] intentionally omitted <==** till the date of deposit and proportionate cost. The 3[rd] respondent-insurer is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the additional appellants 2 to 6 , after deducting their liability, if any, towards payment of court fee, in the ratio of 30:10:20:20:20 and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/24.03.22