K.K. Joemon v. V.A. Ramesh Prabhu, V. Vinod Kumar alias Kuttan, and The Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943** ## **MACA NO.3030 OF 2009** **AGAINST THE AWARD IN O.P.(MV) NO.2059/2001 DATED 30.12.2008 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER IN O.P.(MV):** K.K.JOEMON S/O.KUTTAPPAN, M.I.G.100, GANDHI NAGAR, ELAMKULAM VILLAGE, KADAVANTHRA P.O, ERNAKULAM DISTRICT, KOCHI-20. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS 1 TO 3 IN O.P.(MV):** 1 V.A.RAMESH PRABHU S/O.V.V.ANANDA PRABHU, PRABHU'S SANITARY, PALLURUTHY NADA, KOCHI-6. 2 V.VINOD KUMAR @ KUTTAN S/O.VIJAYAN MALIYAMVEETTIL, NEAR ST.ALOCIOUS CONVENT, CHIRAKKAL KARA, PALLURUTHY, KOCHI-6. 3 THE ORIENTAL INSURANCE CO.LTD PALLURUTHY, KOCHI-6. BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE GEORGE A.CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.3030/2009 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(M.V.) No.2059 of 2001 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were respondents 1 to 3 before the Tribunal. The parties are, for the sake for convenience, referred to as per their status before the Tribunal. 2. The petitioner 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 13.3.2001. It was the case that, on the above said day, while he was riding pillion on a scooter bearing registration No.KL-7AC 5024, an autorickshaw bearing registration No.KL-7R 8728, driven by the second respondent in a negligent manner, hit the scooter of the petitioner on the Thevara – Thoppumpady road. The petitioner sustained serious injuries, including a trimolecular fracture right angle and fracture of both bones of his lower end of the right leg. He was treated as an inpatient, at the Medical Trust Hospital, Ernakulam, for a period of 19 days. He underwent open reduction and internal fixation of the fracture. The appellant was working as M.A.C.A.No.3030/2009 3 an air-conditioner mechanic and drawing a monthly income of approximately Rs.2,000/-. The autorickshaw was owned by the first respondent and insured with the third respondent. The scooter was owned by the fourth respondent, ridden by the fifth respondent and insured with the sixth respondent. Hence the appellant had claimed a compensation of Rs.3,26,000/- from the respondents, which claim was limited to Rs.3,00,000/-. 3. The respondents 1 and 3 had filed separate written statements. The third respondent contended that the accident occurred due to the negligence of the rider of the scooter. However, the third respondent admitted that the autorickshaw had a valid insurance coverage. The third respondent also disputed the compensation claimed under different heads in the claim petition. 4. The doctor who issued Ext.A12 disability certificate was examined as PW1 and Exts.A1 to A13 were marked in evidence. The third respondent produced the insurance policy which was marked as Ext.B1. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of M.A.C.A.No.3030/2009 4 Rs.65,427/- with interest and cost of Rs.1,500/-. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard ; Sri.A.N.Santhosh, the learned counsel appearing for the appellant/petitioner and Smt.K.Santhi, the learned counsel appearing for the third respondent-insurer. 8. The sole point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. Negligence and liability 9. Ext.A6 charge sheet filed by the Kochi City Traffic Police in Crime No.673/2001 proves that the accident occurred due to the negligence of the second respondent - the driver of the autorickshaw. Admittedly, the first respondent was the owner and the third respondent was the insurer of the autorickshaw. The respondents have not let in any evidence to discredit Ext.A6 charge sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising in the accident. M.A.C.A.No.3030/2009 5 ## Income 10. The petitioner had claimed that he was an airconditioner mechanic and earning a monthly income of Rs.2,000/-. The Tribunal, accepted the said pleading, and fixed the monthly income of the appellant at Rs.2,000/-. The Tribunal also awarded the petitioner four months' loss of earnings, which I find to be reasonable and just. Loss due to disability 11. The doctor – PW1 who issued Ext.A12 has assessed that the petitioner has a permanent disability of 12% as per Mc-Brides scale. However, the Tribunal has awarded the petitioner a consolidated amount of Rs.12,000/- towards loss due to disability. I find that the assessment made by the Tribunal to be erroneous and wrong. 12. In _**Raj Kumar v. Ajay Kumar [2011 (1) KLT 620 SC]**_ , the Honourable Supreme Court has categorically held that what needs to be looked into an injury claim is the functional disability of the injured - claimant. 13. In the instant case, it is seen as per Ext.P12, that the petitioner has sustained a permanent disability of 12% due to the M.A.C.A.No.3030/2009 6 trimolecular fracture of the right angle and fracture of both bones of his lower end of the right leg. Since the petitioner was airconditioner mechanic by profession, I fix his the functional disability at 12% as assessed in Ext.A12 corroborated by PW1. ## Multiplier 14. The petitioner was aged 27 years at the time of accident. In view of the law laid down in _**Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121]**_ , the relevant multiplier is '17'. ## Loss due to disability 15. Taking into account the aforementioned factors, namely the monthly income of the petitioner at Rs.2,000/-, his functional disability at 12% and the multiplier at 17, I re-fix the compensation for loss due to disability at Rs.48,960/-, instead of Rs.12,000/awarded by the Tribunal. ## Bystander expenses and extra nourishment 16. The Tribunal has awarded an amount of Rs.2,000/- and Rs.1,000/-, respectively, under the heads 'bystander expenses' and 'extra nourishment'. I find the same to be too low. 17. As the petitioner was treated as the inpatient for a M.A.C.A.No.3030/2009 7 period of 19 days, I award him an amount of Rs.250/- per day for 19 days towards 'bystander expenses' which works out Rs.4,750/and Rs.150/- per day for 19 days towards 'extra nourishment', which comes to Rs.2,850/-. ## Pain and sufferings and loss of amenities 18. The Tribunal has awarded the petitioner an amount of Rs.17,000/- under the head 'pain and sufferings' and Rs.5,000/under the head 'loss of amenities'. 19. On a consideration that the petitioner was treated as an inpatient for a period of 19 days, that he has suffered a trimolecular fracture on his right angle and a fracture of both bones of the lower end of his right leg, that he was indisposed for a period of four months and he has suffered a functional disability of 12%, I award him further amounts of Rs.13,000/- and Rs.15,000/- under the heads 'pain and sufferings' and 'loss of amenities', respectively. 20. With respect to the other heads of compensation awarded by the Tribunal, I find the same to be reasonable and just. 21. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the aforesaid decisions, I hold the appellant/petitioner is entitled for M.A.C.A.No.3030/2009 8 ## enhancement of compensation as modified and recalculated the above are given in the table below for easy reference. |Sl.<br>No.|Head of Claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Amounts modified<br>and recalculated<br>by this Court (Rs.)| |---|---|---|---| |1|Loss of earnings|8000|8000| |2|Transport|2000|2000| |3|Bystander expenses|2000|4750| |4|Extra nourishment &<br>clothing|1000|2850| |5|Medical Expenses|15800|15800| |6|Pain and sufferings|17000|30000| |7|Loss of amenities|5000|20000| |8|Future treatment|5000|5000| |9|Loss due to disability|12000|48960| ||Total|67800|137360| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.69,560/- with interest @7% per annum from the date of petition till the date of deposit and cost of Rs.5,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within 60 days from the date of receipt of a certified copy of the judgment. Immediately on M.A.C.A.No.3030/2009 9 the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** csl