MACA No. 1047 of 2011 (C. Premachandran v. The National Insurance Company Limited, Popular Vehicles and Services, Kannur District; The National Insurance Company Limited, Maruthi Vehicles and Services Ltd, Kozhikode District)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943 ``` ## `MACA NO. 1047 OF 2011` ``` AGAINST THE AWARD DATED 28.02.2011 IN OP(MV)NO.1100/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## `APPELLANT/PETITIONER:` ``` C.PREMACHANDRAN, S/O.LATE GOPALAN NAIR, "THEERTHAM", PONNANA PARAMBA, KARUVISSERY AMSOM, DESOM & POST, KOZHIKODE DISTRICT. ``` ``` BY ADV SRI.K.M.SATHYANATHA MENON ``` ## `RESPONDENTS / RESPONDENTS 3 AND 6:` ``` 1THE NATIONAL INSURANCE COMPANY LIMITED, POPULAR VEHICLES AND SERVICES, KANNUR DISTRICT, PIN-670 001. ``` ``` 2THE NATIONAL INSURANCE COMPANY LIMITED MARUTHI VEHICLES AND SERVICES LTD, KOZHIKODE DISTRICT. PIN-673 001. ``` ``` BY ADV SRI.E.M.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1047/2011 -:2:- Dated this the 3[rd] day of February,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P(MV) No.1100/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents 3 and 6 – the insurers – before the Tribunal. As respondents 3 and 6 had admitted their liability, the appellant has not impleaded respondents 1, 2, 4 and 5 as parties in the appeal. Therefore, the parties are for the sake of 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 that he sustained in an accident on 19.12.2008. It was his M.A.C.A.No.1047/2011 -:3:- case that, on the above said day, while he was travelling in a car bearing registration No.KL-11-T5538 through Kozhikode-Kannur road, another car bearing registration No.KL-13-K-6170(offending car), driven by the first respondent in a rash and negligent manner, hit the car in which the petitioner was travelling. The petitioner sustained serious injuries and was treated at the Baby Memorial Hospital, Kozhikode, for a period of six days. The offending car was owned by the second respondent and insured with the third respondent. The respondents 4 to 6 were the driver, owner and insurer of the car in which the petitioner was travelling. The petitioner was a salesman by profession and was earning a monthly income of Rs.9,500/-. Hence, the petitioner claimed a compensation of Rs.4,46,000/- from the respondents, which claim was limited to Rs.3,50,000/-. 3. The respondents 2 to 6 had filed separate M.A.C.A.No.1047/2011 -:4:- written statements. They denied the allegations in the claim petition. They also contended that the accident occurred due to the contributory negligence on the part of the fourth respondent. Nonetheless, the respondents 3 and 6, the very same insurance company – the insurer of both the cars – admitted that both the cars were validly insured. 4. The petitioner and a Doctor were examined as PWs.1 and 2 and Exts.A1 to A16 were marked on their side. The disability certificate of the Medical Board was marked as Ext.C1. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to recover from the third respondent an amount of Rs.68,530/- with interest and cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner M.A.C.A.No.1047/2011 -:5:- is in appeal. 7. Heard; Sri.Sathyanatha Menon, the learned counsel appearing for the appellant/petitioner and Sri. E.M. Joseph, the learned counsel appearing for the respondents 1 and 2/ respondents 3 and 6 – the insurer of both the vehicles. 8. The sole point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 9. Ext.A1 First Information Report(FIR) and Ext.A2 scene mahazar prove that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the offending car. The respondents have not let in any M.A.C.A.No.1047/2011 -:6:- evidence to discredit Exts.A1 and A2 or controvert the pleadings in the claim petition. The third respondent was not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income:** 10. The petitioner had claimed that he was a salesman by profession and earning a monthly salary of Rs.9,500/-. He produced Ext.A7 certificate issued by his employer to corroborate the pleading. However, the said certificate was not proved through his author. Therefore, the Tribunal fixed the monthly income of the petitioner on notional basis at Rs.3,000/-. 11. In **Ramachandrappa v. Manager, Royal** **Sundaram Alliance Insurance Company Limited** M.A.C.A.No.1047/2011 -:7:- [(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. 12. Following the yardstick in the afore-cited decision and considering the fact that the accident had occurred in 2008, I re-fix the notional monthly income of the petitioner at Rs.6,500/-. ## **Loss of earnings:** 13. The Tribunal found that the petitioner was indisposed for a period of six months, due to the multiple injuries suffered by him. I confirm the said finding. 14. In view of the re-fixation of the notional income of the petitioner at Rs.6,500/-, I award him an amount of **Rs.39,000/-** towards 'loss of earnings'. M.A.C.A.No.1047/2011 -:8:- ## **Disability:** 15. The Medical Board attached to the Medical College Hospital, Calicut, by Ext.C1 disability certificate has certified that the petitioner has a permanent disability of 8%. The said certificate was accepted by the Tribunal and the petitioner's permanent disability is fixed at 8%. I confirm the said finding. ## **Multiplier:** 16. The petitioner was aged 54 years at the time of the accident. In the light of the law laid down in ## **Sarla Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier to be adopted is '11'. ## **Loss due to disability:** 17. Taking into account the above-mentioned M.A.C.A.No.1047/2011 -:9:- factors, namely; the notional monthly income of the petitioner at Rs.6,500/-, his functional disability at 8% and the multiplier at ‘11’, I award the petitioner an amount of **Rs.68,640/-** towards 'loss due to disability', instead of Rs.31,680/- awarded by the Tribunal. ## **Bystander expenses:** 18. The petitioner was treated as an inpatient for a period of six days. The Tribunal has awarded an amount of Rs.600/- under the above head, which is too meager. 19. On a consideration of the fact that the petitioner was treated as an inpatient for a period of six days in the year 2008, I award the petitioner an amount of Rs.400/- per day for a period of six days, towards ‘bystander expenses’, which works out to **Rs.2,400/-.** M.A.C.A.No.1047/2011 -:10:- ## **Pain and sufferings and loss of amenities:** 20. The Tribunal has awarded the petitioner only an amount of Rs.15,000/- under the head 'pain and sufferings'. Taking note of the fractures suffered by the petitioner, his functional disability of 8%, and that he was indisposed for a period of six months, I award him an amount of **Rs.15,000/-** under the head 'loss of amenities'. 21. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above, M.A.C.A.No.1047/2011 -:11:- ## and given in the table below for easy reference. |Sl.No.|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| ||Loss of earnings|18,000|39,000| ||Transport<br>expenses|750|750| ||Clothing|750|750| ||Extra<br>nourishment|750|750| ||Pain<br>and<br>sufferings|15,000|15,000| ||Medical expenses|1,000|1,000| ||Bystander<br>expenses|600|2,400| ||Loss of amenities|Nil|15,000| ||Loss due to<br>disability|31,680|68,640| ||**TOTAL**|**68,530**|**1,43,290**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.74,760/-** with interest at the rate of 7% per annum M.A.C.A.No.1047/2011 -:12:- from the date of petition till the date of deposit and a cost of Rs.5,000/- The first respondent is ordered to 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. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant/petitioner in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/02.02.22 //True copy/ P.A.To Judge