L. Sreekumar v. C.V. Job, Saurabh Pandey and The New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** ## **MACA.No.2067 OF 2010(C)** **AGAINST THE AWARD IN OPMV 2739/2004 DATED 25-01-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT:** **L.SREEKUMAR AGED 35 YEARS. S/O.SRI.LEKSHMANAN,TC 48/1295,AMBALATHARA,, POONITHURA PO,AIRANIMUTTOM VILLAGE,, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SRI.G.ARUN GOPAN SMT.K.N.RAJANI** ## **RESPONDENTS:** **1 C.V.JOB, CHAKKALAKKAL HOUSE, VYTTILA,COCHIN 682 019. 2 SAURABH PANDEY, S/O.JAGESH CHANDRA PANDEY C-2,CENTRAL COURT APARTMENTS,NEAR LISIE HOSPITAL,, ERNAKULAM,COCHIN 682 018.** **3 THE NEW INDIA ASSURANCE COMPANY LTD., VYTTILA,COCHIN 682 019.** ## **R1 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2067 OF 2010(C) 2 ## **JUDGMENT** **Dated this the 16th day of September 2020** The appellant is the claimant in OP(MV) No.2739 of 2004 on the file of the Motor Accident Claims Tribunal, Ernakulam. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of a motor accident that took place on 6.3.2004. The parties are, for the sake of convenience, referred to as per their litigate status in the appeal. 2. It is the case of the appellant that while he was riding pillion on the motor cycle bearing No.KL-7/T 1768, which was driven by the 2[nd] respondent on Chittoor Road - Karakkatt Road, Ernakulam, the motor cycle hit against an electric post. The appellant was admitted as an inpatient in a local hospital and he underwent prolonged MACA.No.2067 OF 2010(C) 3 treatment. The appellant sustained the following injuries:- : (i). Contusion with bogginess on the occipital region (ii). Abrasion on the low back over the lumbar region (iii). Right temporal thin subdural haematoma (iv). Left parietal subdural haematoma and Right frontal contusion. 3. The appellant was on ventilation for the period from 6.3.2004 to 26.3.2004. 4. Accordingly, the appellant filed the claim petition before the Tribunal, claiming a total amount of Rs.14,05,000/- as compensation, under various heads, which was limited to Rs.12,00,000/-. The respondents 1 to 3 are the owner, driver and the insurer, respectively, of the Motor Cycle. 5. The respondents 1 and 2 were set exparte. The 3[rd] respondent filed a written statement admitting Exts.B1 and B2 insurance policies of the MACA.No.2067 OF 2010(C) 4 motor cycle. The 3[rd] respondent however contended that the accident occurred due to rash and negligent driving of the 2[nd] respondent, who did not have a valid driving licence at the time of accident, and that the amounts claimed under various heads were excessive and disproportionate to the injuries sustained. 6. Neither party adduced oral evidence. The appellant produced and marked Exts.A1 to A24 and the 3[rd] respondent produced and marked Exts.B1 and B2 in evidence. Ext.X1 was marked as Court Exhibit. 7. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by permitting the appellant to recover an amount of Rs.2,18,600/- from respondents 1 and 3 with 7.5% interest per annum from the date of petition till the MACA.No.2067 OF 2010(C) 5 ## date of payment with proportionate costs. 8. The comparative table of compensation that was claimed by the appellant and that was awarded by the Tribunal is as follows:- |a)|Loss of earnings for 5 months|1,10,000|Nil| |---|---|---|---| |b)|Partial loss of earnings||Nil| |c)|Transport expenses|15,000|10,000| |d)|Extra nourishment|10,000|5,000| |e)|Attendant expenses|20,000|10,000| |f)|Others 1. Medical expenses|3,50,000|77,605| ||2. Damage to clothingetc.|2,000|1000| |g)|Compensation for pain and<br>suffering|1,50,000|40,000| |h)|Compensation for continuing<br>and permanent disability|2,50,000|25,000| |i)|Loss<br>of<br>amenities<br>&<br>enjoyments in life|2,00,000|Nil| |j)|Compensation for the loss of<br>earningpower|1,50,000|Nil| |k)|Compensation for reduced<br>prospects in marriage|1,00,000|Nil| |l)|For mental shock & agony|50,000|25,000| ||Total|14,07,000|1,93,605| |But the claim is limited to 12,00,000|||| 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, under the MACA.No.2067 OF 2010(C) 6 various heads mentioned above, the appellant has preferred this appeal. 10. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3[rd] respondent. 11. The sole question that emerges for consideration in this appeal is whether the appellant is entitled for enhancement of compensation. 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed MACA.No.2067 OF 2010(C) 7 through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. The appellant met with the accident on 6.3.2004. At that time, he was aged 29 years old. The appellant had claimed that he was conducting an Advertising Agency and getting a monthly income of Rs.22,000/-. The appellant had also claimed to have suffered 16% disability, based on Ext.A10 disability certificate, due to the accident. ## **Disability Certificate** 14. The Tribunal by its order dated 20.10.2008 referred the appellant to the Superintendent of Medical College Hospital, Thiruvananthapuram. The Medical Board by Disability Certificate dated 31.10.2008, which was marked as Ext.X1, found that the appellant does not suffer from any disability. 15. The appellant had produced Ext.A18 MACA.No.2067 OF 2010(C) 8 SARAL form which shows that he had an annual income of Rs.53,400/- as on 12.4.2005. 16. Even though the appellant had produced Ext.A19 SARAL form dated 28.7.2005, i.e., the income subsequent to the date of accident, the Tribunal rightly refused to accept the same. Similarly, the appellant produced Ext.A16 service agreement dated 27.11.2003 to prove that he had monthly income of Rs.22,000/- which was also rightly turned down by the Tribunal. ## **Income** 17. Admittedly, the appellant was an Income Tax assesee. As on the date of accident, the relevant document to prove the income of the appellant is Ext.A18 SARAL form. Therefore, **I am of the considered opinion that the appellant's income can be fixed at Rs.5,000/- per month (Rupees five Thousand only) per month,** as on MACA.No.2067 OF 2010(C) 9 the date of accident, ie. 6.3.2004. ## **Multiplier** 18. The appellant was aged 29 years at the time of the accident. The multiplier to be adopted is 17, as per the decision in **Sarla Verma & Otrs Vs. Delhi Transport Corporation [(2009) 6 SCC 121]** and **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** . 19. Thus, on an overall re-appreciation of the pleadings, materials on record and the law laid down by the Supreme Court, I find that just and reasonable compensation has been awarded to the appellant under the various heads, except under the head - loss of earnings. 20. The Tribunal rejected the claim of the appellant on the ground that the employer had given the appellant some payment on compassionate grounds. I am of the firm opinion MACA.No.2067 OF 2010(C) 10 that, following principles in **Pranay Sethi (supra),** the appellant is legitimately entitled to compensation under the head - loss of earnings for a period of 5 months at the rate of Rs.5,000/-, since the income of the appellant under Ext.A19 agreement was not accepted by the Tribunal and only Ext.A-18 was accepted to fix the income of the appellant. Therefore, the appellant is entitled to loss of income for a period of five months i.e.,Rs.25,000/-. In the result, the appeal is allowed in part, by directing the 3[rd] respondent to deposit an additional amount of Rs.25,000/- within a period of two months from the date of receipt of a certified copy of the judgment, failing which the 3[rd] respondent is liable to pay interest at the rate of 9% p.a, from the date of this judgment till the date of payment. It is made clear that the appellant MACA.No.2067 OF 2010(C) 11 would be entitled to withdraw the entire amount and also the amount lying in deposit before the Tribunal, if any, since the time period stipulated in the impugned award has already lapsed. **Sd/-** **C.S.DIAS JUDGE** ska