M. I. John v. Shajan, Ashokan and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943** ## **MACA NO. 2024 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 3369/2002 BEFORE THE MOTOR ACCIDENTS** **CLAIMS TRIBUNAL, ERNAKULAM,** ## **APPELLANT/PETITIONER:** 1 M.I.JOHN, AGED 60, S/O.ISSAAC, MANGALATH HOUSE, KARIKODE.P.O., PERUVA, NOW RESIDING AT VARITTAL HOUSE, KAKKADE, MAMALA.P.O., THIRUVANKULAM VILLAGE ERNAKULAM DIST. PETITIONERS 2 AND 3 IMPLEADED AS ADDITIONAL APPELLANTS 2 AND 3 IN THE APPEAL AS PER ORDER DATED 31.3.2021 IN I.A.NO.3.2018 ADDL.A2 SARAMMA JOHN, AGED 70 YEARS, W/O.M.I.JOHN, MANGALATH HOUSE, KARIKKODE P.O., PERUVA, KOTTAYAM DISTRICT. JESSY JOY, D/O.M.I.JOHN, MANGALATH HOUSE, KARIK ADDL.A3 KODE P.O., PERUVA,KOTTAYAM DISTRICT. BY ADVS. SRI.P.K.SAJEEV SRI.K.N.JOY ## **RESPONDENTS/RESPONDENTS:** 1 SHAJAN, S/O.ALIVER, SRAMBICKAL HOUSE, ADIMALI.P.O. IDUKKI. 2 ASHOKAN, AGED 35, S/O. BHASKARAN, MADATHU HOUSE, SILENT VALLEY, ADIMALI,IDUKKI. 3 THE ORIENTAL INSURANCE CO. LTD., BY ITS REGIONAL MANAGER, METRO PLAZA, ERNAKULAM NORTH, KOCHI. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2024 OF 2009 2** ## **JUDGMENT** The deceased 1[st] appellant was the petitioner in OP(MV) No.3369 of 2002 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents 1 to 3 before the Tribunal. During the pendency of the appeal, the 1[st] appellant expired on 9.6.2018. Pursuant to the orders of this Court on 31.3.2021, the wife and the daughter of the deceased 1[st] appellant were impleaded as additional appellants 2 and 3. Similarly, the appellants had not impleaded the respondents 4 to 6 before the Tribunal as parties in the appeal. Therefore, for the sake of convenience, the parties are referred to as per their status in the claim petition. 2. The petitioner had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming **MACA NO. 2024 OF 2009 3** compensation on account of the injuries that he sustained on 12.4.2002. It was his case that while he was travelling from Machiplavu to Adimaly through the National Highway 49 in an auto rickshaw bearing Reg. No.10-D3318, a lorry bearing Reg.No.KL-4-B 1967 (lorry) coming from the opposite direction hit the auto rickshaw. The petitioner was taken to the Morning Star Medical Centre, Adimaly and, thereafter, to the Malankara Orthodox Syrian Church Medical Mission Hospital, Kolencherry. He was treated as an inpatient from 12.4.2002 to 6.5.2002 and was referred to the Amritha Institute of Medical Science and Research Centre, Elamakkara and treated as an inpatient from 6.5.2002 to 18.5.4. 3. The petitioner underwent major operations for interlaminar wiring and posterior fixation and bone grafting. Although he was discharged, he was advised **MACA NO. 2024 OF 2009 4** continuous treatment and Psychotherapic exercise. He was also treated at the Dhanwanthari Vaidyasala, Thodupuzha from 27.2.2002 to 11.7.2002 and from 17.82002 to 27.8.2002. The petitioner suffered a permanent disability and cannot move or sit by himself. The petitioner was an A Class contractor and earning a monthly income of Rs.20,000/-. The auto rickshaw as well as the lorry were driven by the 2[nd] and 5[th] respondents in a rash and negligent manner. The said vehicles were owned by the 1[st] and 4[th] respondents and insured with the 3[rd] and 6[th] respondents, respectively. The petitioner claimed that the respondents were jointly and severally liable to pay him compensation, which he quantified at Rs.20,00,000/-. 4. The respondents 1, 2, 4 and 5 did not contest the proceedings and were set ex parte. The insurers of **MACA NO. 2024 OF 2009 5** both vehicles namely, respondents 3 and 6, resisted the petition by filing separate written statements. The 3[rd] respondent contended that the accident was caused due to the negligent driving of the lorry by the 5[th] respondent. The 6[th] respondent contended that the accident occurred due to the negligent driving of the auto rickshaw by the 2[nd] respondent. The respondents 3 and 6 played a blame game and tried to pass the buck to each other. 5. The petitioner was examined as PW1 and the author of Ext.A16 employment certificate was examined as PW2, and Exts.A1 to A20 were marked in evidence. The respondents produced Ext.B1 settlement award of the Motor Accidents Claims Tribunal, Muvattupuzha. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to realise an amount of ## **MACA NO. 2024 OF 2009 6** Rs.7,98,100/- with interest @ 7.5 % per annum from the date of petition till the date of award, thereafter @ 9% till the date of deposit with proportionate costs. The 3[rd] respondent was directed to pay the compensation amount as it was found that the 2[nd] respondent was negligent in causing the accident. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard, the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent - insurer. 9. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. Ext.A2 final report filed by the Adimaly Police in Crime No.121 of 2002 proves that the accident occurred **MACA NO. 2024 OF 2009 7** due to the negligence of the 2[nd] respondent, the driver of the auto rickshaw. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the auto rickshaw. Therefore, it is the 3[rd] respondent who is liable to indemnify the 1[st] respondent of the liability caused due to the accident. ## **Disability** 11. The disability of the appellant was assessed by the Medical Board attached to the Medical College Hospital, Kottayam. By Ext.A14 certificate, the Medical Board assessed the permanent disability of the appellant at 70% and categorised the disability as severe. The above assessment was accepted by the Tribunal. ## **Notional Income** 12. Although the petitioner had contended that he was a A Class Contractor and earning a monthly income **MACA NO. 2024 OF 2009 8** of Rs.20,000/-, the Tribunal for want of materials fixed his notional income at Rs.10,000/-. After going through the pleadings and materials on record and the oral testimonies of PWs.1 and 2, I refix the notional net income of the petitioner, after deducting income tax, at Rs.10,000/- per month. ## **Multiplier** 13. The petitioner was 54 years at the time of accident. In light of the law laid down in _**Sarala Verma v. Delhi Transport Corporation (2020 2 KLT 802 SC)**_ and _**Pappudeo Yadav v. Nareshkumar and others (AIR 2020 SC 4424)**_ , the relevant multiplier is ‘11’. **Future Prospects** 14. In _**Pappudeo Yadav**_ (supra) and a lie of precedents, the Hon’ble Supreme Court has held that if the disability is severe, the injured is also entitled for **MACA NO. 2024 OF 2009 9** future prospects. In view of the fact that the petitioner has suffered disability of 70% and he was aged 54 years, and the relevant multiplier being ‘11’, the petitioner is entitled to future prospects at 10%. ## **Loss due to disability** 15. In view of the re-fixation of the net notional income of the petitioner at 10,000/- per month, the disability at 70%, the multiplier at ‘11’ and future prospects at 10%, I refix the compensation for loss due to disability at Rs.10,16,400/- instead of Rs.2,24,000/awarded by the Tribunal. 16. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 17. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the ## **MACA NO. 2024 OF 2009 10** aforecited decisions, I am of the definite opinion that the petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount<br>Awarded by the<br>Tribunal (in Rs.)|Amounts<br>modified<br>and<br>recalculated by<br>this Court| |---|---|---| |Loss of earnings|80,000/-|80,000/-| |Transport|5,000/-|5,000/-| |Clothing|2,000/-|2,000/-| |Extra nourishment|5,000/-|5,000/-| |Bystander<br>expenses|16,800/-|16,800/-| |Future bystander<br>expenses|2,00,000/-|2,00,000/-| |Treatment<br>expenses|95,300/-|95,300/-| |Pain and sufferings|50,000/-|50,000/-| ## **MACA NO. 2024 OF 2009 11** |Mental shock|50,000/-|30,000/-| |---|---|---| |Short expectancy<br>of life|30,000/-|30,000/-| |Loss<br>due<br>to<br>disability|2,24,000/-|10,16,400/-| |Future treatment|40,000/-|40,000/-| |Total|7,98,100/-|15,70,500/-| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.7,72,400/- with interest at the rate of Rs.7.5% per annum from the date of petition till the date of deposit, after deducting the period of 65 days, i.e., a period of delay in preferring the appeal and ordered by this Court on 31.3.2021 in C.M.Appln. No.2323 of 2009, and proportionate costs. The 3rd respondent shall deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of **MACA NO. 2024 OF 2009 12** a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation in equal shares to the appellants/petitioners 2 and 3 and in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm