Krishna Kumar v. Pankajakshan, Manikan and The New India Assurance Co. Ltd.

**MACA NO. 2658 OF 2009** **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. 2658 OF 2009 AGAINST THE ORDER/JUDGMENT IN OP(MV) 2753/2002 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** KRISHNA KUMAR, S/O.SANKARANARAYANAN, THARAYIL HOUSE, CHEMBUTHARA,, PANANCHERY, PATTIKKAD P.O. THRISSUR BY ADV SRI.V.BINOY RAM ## **RESPONDENTS/RESPONDENTS:** 1 PANKAJAKSHAN, S/O.SREEDHARAN, 3/384, COTTARA, VADAVANNUR, PALAKKAD. 2 MANIKAN S/O. ARU, KOLLENGAD, WARD IX NENMARA VILALGE, CHITTUR TALUK, PALAKKAD, DISTRICT. 3 THE NEW INDIA ASSURANCE CO.LTD. PALAKKAD DIVISIONAL OFFICE, PDC, BANK BUILDING, HPO ROAD, SULTANPET,, PALAKKAD. BY ADVS. SRI.T.M.CHANDY SRI.M.JACOB MURICKAN 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. 2658 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.2753/2002 on the file of the Principal Motor Accidents Claims Tribunal, Thrissur. 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 7.2.2002. It was his case that, on the abovesaid day, while he was driving his Maruti van bearing Reg.No.KL-08P 8265 along the Palakkad- Thrissur National Highway, a lorry bearing Reg.No.KL-08P-8240 (lorry), driven by the 2[nd] respondent in a rash and negligent manner, hit the maruti van. The appellant had sustained serious injuries including fracture of the body of Talus right and fracture of the medial mellelous right. **MACA NO. 2658 OF 2009** **3** He was treated as an inpatient at the Medical College Hospital, Thrissur for a period of 30 days. The appellant was a driver by profession and was earning a monthly income of Rs.6,000/-. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.4,26,000/from the respondents, which claim was limited to Rs.2,00,000/-. 3. The appellant also filed O.P (MV) No.2752/2002 before the same Tribunal, against the respondents, seeking compensation for damages caused to his vehicle. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The 3[rd] respondent had filed a written statement contending that the accident occurred due to the negligence of the appellant. However, the 3[rd ] respondent also disputed the age, income and occupation of the appellant. Hence the 3[rd] respondent prayed that the **MACA NO. 2658 OF 2009** **4** claim petition may be dismissed. 6. The Tribunal consolidated and jointly tried the two original petitions. 5. The appellant examined the Doctor, who assessed his disability, as PW1 and marked Exts.A1 to A14 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.94,140/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Binoy Ram.V, the learned counsel appearing for the appellant/petitioner and Sri.M.Jacob Murikken the learned counsel appearing for the 3rd **MACA NO. 2658 OF 2009** **5** respondent/insurer. 9. The sole 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** 10. Ext.A3 final report filed by the Mannuthy Police in Crime No.41/2002 establishes that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit the final report. 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** 11. The appellant had claimed that he was a driver by profession and was earning a monthly income of **MACA NO. 2658 OF 2009** **6** Rs.6,000/-. However, the Tribunal, for the want of materials, fixed the notional monthly income of the appellant at Rs.2,000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble 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 2002, I hold that the appellant's notional monthly income can safely be fixed at Rs.3,500/-. ## **Disability** 14. The appellant had examined PW1 and proved Ext.A13 disability certificate. In Ext.A13, the appellant's permanent disability has been assessed at 12%. **MACA NO. 2658 OF 2009** **7** 15. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has held that what needs to be looked into in a case of injury, is the functional disability of the injured-claimant. 16. On a re-appreciation of Ext.A13 disability certificate read with the oral testimony of PW1, I find that the appellant has a malunion of the body of talus with stiffness of right ankle and united fracture of the medial mallelous. Therefore, PW1 has assessed the appellant's disability at 12%. Taking into account the fact that the appellant was a driver by profession, I fix his functional disability at 12% as certified in Ext.A13. ## **Multiplier** 17. The appellant was aged 26 years at the time of the accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '17'. **MACA NO. 2658 OF 2009** **8** ## **Loss due to Disability** 18. Taking into account the above-mentioned factors, namely, the notional monthly income of the appellant at Rs.3,500/-, his functional disability at 12% and the multiplier at '17', I hold that the appellant is entitled for compensation for 'loss due to disability’ at Rs.85,680/-, instead of Rs.51,840/- awarded by the Tribunal. ## **Loss of earnings** 19. The Tribunal has found that the appellant was indisposed for a period of five months. 20. On a re-consideration of the materials on record, I confirm the finding of the Tribunal in this regard. However, in view of the refixation of the notional monthly income of the appellant at Rs.3,500/-, I re-fix the compensation for 'loss of earnings' at Rs.17,500/- instead of Rs.10,000/- awarded by the Tribunal. **MACA NO. 2658 OF 2009** **9** ## **Bystander expenses and Extra nourishment** 21. It is on record that the appellant was treated as an inpatient for a period of 30 days. The Tribunal has awarded only an amount of Rs.3,000/- towards 'bystander expenses', and Rs.1,000/- towards 'extra nourishment expenses, which, according to me, is on the lower side. 22. Taking into account the fact that the accident occurred in the year 2002, I hold that the appellant/petitioner is entitled to Rs.300/- per day for a period of 30 days towards 'bystander expenses', which works out to Rs.9,000/- and Rs.150/- per day for a period of 30 days towards 'extra-nourishment expenses' which comes to Rs.4,500/-. ## **Loss of amenities** 23. The appellant had claimed an amount of Rs.50,000/- towards the’ loss of amenities’. The Tribunal awarded only an amount of Rs.8,000/- which is too meager. **MACA NO. 2658 OF 2009** **10** 24. On a consideration of the fact that the appellant was treated as an inpatient for a period of 30 days, that he had sustained two major fractures, that he was indisposed for a period of five months and that he has suffered a functional disability of 12%, I hold that the appellant is entitled to an amount of Rs.20,000/- towards ‘loss of amenities’ . ## **Other heads of compensation** 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 aforecited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 2658 OF 2009** **11** **==> picture [474 x 435] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts<br>the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 10,000 17,500<br>2. Transport to hospital 1,000 1,000<br>3. Damage to clothing 5,00 5,00<br>4. Bystander expenses 3,000 9,000<br>5. Extra nourishment 1,000 4,500<br>6. Medical Expenses 6,800 6,800<br>7 Pain and suffering 12,000 12,000<br>8. Loss of amenities 8,000 20,000<br>9. Loss due to disability 51,840 85,680<br>Total 94,140 1,56,980<br>=========== =======<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.62,840/with interest at the rate of 7% per annum on the enhanced **MACA NO. 2658 OF 2009** **12** compensation from the date of petition till the date of realisation after deducting interest for a period of 141 days , i.e. the period of delay in filing the appeal and as ordered by this Court on 13.10.2021 in C.M.Appli. No.3137/2009, and a cost of Rs.10,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. ma/16.12.2021 Sd/- **C.S.DIAS, JUDGE**