Kaushik H Pandey v. Mohammed Aslam and others (MACA No. 490 of 2011)

MACA NO. 490 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 16[TH] DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943 MACA NO. 490 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1304/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** KAUSHIK H PANDEY, AGED 53 YEARS, SON OF HARISHANKAR PANDEY,, SIVA SADAN, V/1060, PANDITHAN TEMPLE ROAD,, MATTANCHERY P.O., MATTANCHERY VILLAGE,, KOCHI TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SRI.G.ARUN GOPAN SMT.K.N.RAJANI ## **RESPONDENT/S:** 1 MOHAMMED ASLAM, PROPRIETOR, M/S.OCEANS, BAY PRIDE BUILDING,, KOCHANGADI, KOCHI-682002. 2 CHAKKUNNY, S/O.VAREED, CHEERAN HOUSE,, EDAYAKKUNNAM, CHERANALLORE,, COCHIN-682034. 3 NATIONAL INSURANCE COMPANY LIMITED D.O., W.ISLAND, COCHIN-682003. 4 THE ORIENTAL INSURANCE COMPANY LIMITED MATTANCHERY, COCHIN-682002. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.RUPA MARIAM THOMAS SRI.TITUS MANI MACA NO. 490 OF 2011 **==> picture [7 x 9] intentionally omitted <==** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 490 OF 2011 3 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1304/2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 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 24.05.2002. It was his case that, on the above said date, while he was riding pillion on a scooter bearing registration No.KL-7X 1245, along the Airport road, a car bearing registration No.KL7AE 6883 (car), driven by the 2[nd] respondent in a rash and negligent manner, hit the scooter. The appellant sustained serious injuries including a type III open comminuted fracture with bone loss right femur shaft M/3, type I open fracture both bones right leg, M/3, D/3 junction and tibial plateau fracture right with P/3 comminuted tibial fracture. He was treated as an inpatient at the Medical Trust Hospital, Ernakulam, for a period of 111 days in three spells. The appellant was a broker in the India Pepper & Spice Trade Association, Jew Town, Kochi and MACA NO. 490 OF 2011 4 was earning a monthly income of Rs.4,000/-. The car was owned by the 1[st] respondent and insured with the 3[rd] respondent. The scooter was insured with the 4[th] respondent. Hence, the appellant claimed a compensation of Rs.10,35,000/- from the respondents, which claim was limited to Rs.6,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the car had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the rider of the motor cycle. The 3[rd] respondent also disputed the age, income and occupation of the appellant. 5. The 4[th] respondent had filed a written statement contending that the accident occurred due to the negligence of the 2[nd] respondent. Therefore, the 4[th] respondent prayed to be exonerated. 6. The appellant had produced and marked Exts.A1 to A18 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and MACA NO. 490 OF 2011 5 materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.5,48,445/- with interest @ 8% per annum from the date of petition till the date of realisation and proportionate cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard Smt. Rajani K.N., the learned counsel appearing for the appellant, Sri. P. Jacob Mathew, the learned counsel appearing for the 3[rd] respondent and Sri.Titus Mani (Vettom) the learned counsel appearing for the 4[th] respondent-insurer of the scooter. 10. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 11. Ext.A6 charge sheet filed by the Kochi City Traffic Police in Crime No.1585/2002 proves that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the 6 MACA NO. 490 OF 2011 insurer of the car. The respondents have not let in any evidence to discredit Ext.A6 charge sheet. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was working as a broker in the India Pepper & Spice Trade Association and earning a monthly income of Rs.4,000/-. He produced Ext.A14 identity card and Ext.A13 series of receipt vouchers to show the commission received by him. Nevertheless, the Tribunal fixed the notional monthly income of the appellant at Rs.3,500/-. 13. In **Chameli Devi & Ors. vs. Jivrail Mian** [2019 KHC 5352 SC], the Honourable Supreme Court has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5,000/per month. 14. Following the yardstick in the afore-cited decision and considering the fact that the appellant was a professional, I refix the appellant’s notional monthly income at Rs.4,000/- as MACA NO. 490 OF 2011 7 claimed in the claim petition. ## **Disability** 15. Pursuant to the direction of the Tribunal, the disability of the appellant was assessed by a duly constituted Medical Board of the General Hospital, Ernakulam. The Medical Board found that the appellant has a permanent physical disability of 25% due to the difficulty in walking, disability to his right knee, 3 centimetres shortening of his right leg, and mal-union of the right thigh. 16. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has categorically held that, what needs to be looked in an injury claim, is the functional disability of the injured. 17. In the instant case, as evident from Ext.A12, the Medical Board has found that the appellant has a permanent physical disability of 25%. On a re-appreciation of the materials on record and considering the fact that the appellant was a broker, I am of the firm view that his functional disability has to be fixed at 25%. MACA NO. 490 OF 2011 8 ## **Multiplier** 18. As the appellant was aged 48 years at the time of accident, the relevant multiplier to be adopted is ‘13’. ## **Loss due to disability** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.4,000/-, his functional disability at 25% and adopting the Multiplier at '13', I award him an amount of Rs.1,56,000/towards 'loss due to disability', instead of Rs.1,36,500/awarded by the Tribunal. ## **Loss of earnings** 20. The Tribunal found that the appellant was indisposed for a period of six months. On a consideration of the materials on record, I confirm the said finding. However, in view of the refixation of the notional monthly income of the appellant at Rs.4,000/-, I award him an amount of Rs.24,000/- under the head ‘loss of earnings’. ## **Bystander expenses and extra nourishment** 21. As per Exts.A8 to A11 disability certificates, the appellant was treated as an inpatient for a period of 111 days. MACA NO. 490 OF 2011 9 The Tribunal awarded him an amount of Rs.15,000/- towards bystander expenses and Rs.3,000/- towards extra nourishment which according to me is on the lower side. 22. Considering the fact that the accident occurred in the year 2002, I award the appellant an amount of Rs.250/- per day for a period of 111 days towards bystander expenses which works out to Rs.27,750/-. Similarly, I award the appellant Rs.150/- per day for a period of 111 days towards extra nourishment which comes to Rs.16,650/- ## **Pain and suffering and loss of amenities** 23. The appellant had claimed an amount of Rs.1,50,000/towards pain and suffering and Rs.1,50,000/- towards loss of amenities. The Tribunal awarded only an amount of Rs.50,000/and Rs.40,000/-, respectively under the said heads. 24. On a consideration of the fact that the appellant was treated as an inpatient for a period of 111 days that he had sustained serious injuries as evident from Ext.X1 disability certificate, that he was indisposed for a period of six months and he has sustained functional disability of 25%, I award the appellant an amount of Rs.75,000/- each under the heads of MACA NO. 490 OF 2011 10 'pain and suffering' and 'loss of amenities'. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. 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 appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [448 x 339] 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 21,000 24000<br> 2. Transportation expenses 2,000 2,000<br>3. Clothing 250 250<br>4. Bystander expenses 15,000 27,750<br>5. Extra nourishment 3,000 16,650<br>6. Medical expenses 2,80,695 2,80,695<br>7. Pain and sufferings 50,000 75000<br>8. Loss of amenities 40,000 75,000<br>**----- End of picture text -----**<br> MACA NO. 490 OF 2011 11 **==> picture [448 x 69] intentionally omitted <==** **----- Start of picture text -----**<br> 9. Loss due to disability 1,36,500 1,56,000<br>Total 548455 657345<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,08,900/- with interest @ 8% per annum from the date of petition till the date of realisation and a cost of Rs.20,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation 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 Tribunal shall disburse the deposited compensation amount to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/17.12.21