Lijo Jose v. Rema W/o RadhaKrishnan & Prasad; Oriental Insurance Co. Ltd. (MACA No. 1236 of 2009)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943** **MACA NO. 1236 OF 2009** **AGAINST THE JUDGMENT DATED 22.09.2008 IN OPMV 155/2004 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **LIJO JOSE S/O.JOSE, ARAKKAPARAMBIL HOUSE RAJASREE LANE, KIZHAKKUMPATTUKARA, THRISSUR DISTRICT.** **BY ADV SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** **1 REMA W/O.RADHAKRISHNAN, POTTANATTU HOUSE, THAIKKATTUSSERY, THRISSUR DISTRICT.** - **2 PRASAD S/O.DAMODHARAN CHULLIKKATTIL HOUSE, NEAR PATTATH TILE COMPANY, PALIAKKARA, NENMANIKKARA,, THRISSUR DISTRICT.** - **3 THE ORIENTAL INSURANCE CO.LTD. GURUVAYOOR ROAD, KUNNAMKULAM.** **BY ADVS. GEORGE CHERIAN (SR.) SRI.V.BINOY RAM ALEXY AUGUSTINE GEORGE A.CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1236 OF 2009 2** Dated this the 25[th] day of August,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.155/2004 on the file of the Motor Accidents Claims Tribunal,Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are; on 10.12.2003, while the appellant was riding as pillion on a motorcycle bearing registration No. KL 8/Y-4434 riden by his friend named Sholly Varghese through the Vadanapally-Thrissur road, when they reached Kunnathangadi, an autorickshaw bearing registration No.KL 8Z 1162(autorickshaw) driven by the 2[nd] respondent in a rash and negligent manner and while attempting to overtake a car, came from the wrong side and hit on the motorcycle. Due to the impact, the appellant and his friend were thrown on the road. The ## **MACA NO. 1236 OF 2009 3** appellant's friend-rider of the motorcycle-succumbed to injuries on the same day. The appellant sustained serious injuries, including fractures of his left radius, C1 and C2 and he lost two teeth and broke two teeth. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the autorickshaw. The appellant was employed as a salesman in C.K.Mathew Footwear, Thrissur, and earning a monthly income of Rs.3500/-. Hence, the appellant claimed an amount of Rs.2,23,500/- as compensation from the respondents, which was limited to Rs.2,00,000/- under Section 166 of the Motor Vehicles Act, 1988. 3. The legal representatives of the deceased/rider Sholly Varghese also filed O.P.(M.V) No.217/2004 before the same Tribunal against the respondents. 4. The respondent Nos.1 and 2 did not contest both the claim petitions. 5. The third respondent filed a written **MACA NO. 1236 OF 2009 4** statement in both the claim petitions, admitting that the autorickshaw had a valid insurance policy. However, it is contended that the accident occurred due to the negligence on the part of the deceased rider of the motorcycle. The 3[rd] respondent also disputed the age, income and occupation of the appellant. 6. The Tribunal consolidated and jointly tried the original petitions. 7. The doctor who issued the disability certificate in favour of the appellant was examined as PW1 and Exhibits A1 to A21 were marked in evidence. The third respondent produced the copy of insurance policy, which was marked in evidence as Exhibit B1. 8. The Tribunal by a common award allowed the claim petition filed by the appellant, permitting him to recover an amount of Rs.1,37,830/- with interest and costs from the 3[rd] respondent. ## **MACA NO. 1236 OF 2009 5** 9. Dissatisfied by the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri. T.C. Suresh Menon the learned counsel appearing for the appellant/petitioner and Sri.Alexy Augustine, the learned counsel appearing for the third respondent/insurer. 11. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 12. Exhibit A5 charge sheet filed by the Anthikkad Police in Crime No.372/2003 clearly proves that the accident occurred solely due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the autorickshaw. Therefore, the 3[rd] respondent is liable to indemnify the 1[st] respondent of her liability to pay compensation. 13. The appellant had claimed that he was **MACA NO. 1236 OF 2009 6** working as salesman in a Footwear shop and earning a monthly income of Rs.3500/-. Nevertheless, the Tribunal fixed the notional income of the appellant at Rs.2000/-. 14. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. ## **Notional Income** 15. Following the ratio in the afore cited decision and considering the fact that the accident occurred in the year 2003, I fixed the notional income of the appellant at Rs.3500/- as claimed in the claim petition. ## **Loss of earnings** 16. It is on record, as per Exhibit A11 disability certificate that was proved through PW1, that the appellant sustained a united fracture of C1 and C2 and ## **MACA NO. 1236 OF 2009 7** also a fracture of his left radius. PW1 has certified that the appellant has 17% permanent disability. It is also on record that the appellant had claimed that he was indisposed for a period of three months, but the Tribunal held the petitioner's indisposed only for a period of two months. 17. Taking into consideration the serious injuries that the appellant had sustained, as evidenced by Exhibit A2 wound certificate and A6 discharge summary, I am of the firm opinion that the appellant was indisposed for a period of three months. 18. Therefore, in view of the refixation of the notional income of the appellant at Rs.3500/- per month, I refix his loss of earning at Rs.10,500/- instead of Rs.4000/- awarded by the Tribunal. ## **Loss due to disability** 19. The appellant was aged 23 years at the time of accident. In the light of the law laid down in **Sarla** **MACA NO. 1236 OF 2009 8** **Verma and Others v. Delhi Transport Corporation and another** [2010 (2) KLT 802 SC], the multiplier is - '18' instead of 17 fixed by the Tribunal. 20. As per Exhibit A11 disability certificate, which was proved through PW1, the appellant's permanent disability has been assessed at 16%. 21. In light of the law laid down in **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC] and the examination of PW1, I do not find any reason to defer from the opinion expressed by the expert in Exhibit A11. Accordingly, I fix the appellant's permanent disability at 16% as per Exhibit A6. 22. Taking into account the aforementioned parameters, namely, the notional income of the appellant at Rs.3500/-, his disability at 16%, the multiplier at 18, I refix the compensation for loss due disability at Rs.1,20,960/- instead of Rs.65,280 awarded by the Tribunal. **MACA NO. 1236 OF 2009 9** ## **Loss of amenities** 23 **.** The appellant had claimed an amount of Rs.15,000/- for loss of amenities. 24. It is proved by Exhibit A11 disability certificate, that the appellant has suffered a permanent disability of 16%. Similarly it is on record that the appellant had lost two teeth and two of his teeth were broken in the accident. 25. Keeping in mind the severe injuries sustained by the appellant, as evidenced by Exhibit A2 wound certificate and A11 disability certificate, I am of the opinion that the appellant is entitled for loss of amenities at Rs.15,000/- as claimed in the claim petition. 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. ## **MACA NO. 1236 OF 2009 10** 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion 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. |Sl.No|Head of claim|Amount<br>awarded<br>by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|4000|10500| |2|Transportation<br>expenses|1000|1000| |3|Extra nourishment|1000|1000| |4|Damage to clothing|500|500| ||Medical treatment|42050|42050| |4|Bystander expense|1000|1000| |6|Pain and sufferings|15,000|15,000| ## **MACA NO. 1236 OF 2009 11** |7|Loss of amenities|8000|15000| |---|---|---|---| ||Loss<br>due<br>to<br>disability|65280|120960| |**Total**||**137830**|**207010**| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.69,180-. with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of deposit and a cost of Rs.3000/-. The third respondent shall deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm