MACA No. 1530/2012 – Mani v. Ashokan N., Bharathi, Oriental Insurance Company Limited and The New India Assurance Company Limited

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 3[RD] DAY OF JANUARY 2022 / 13TH POUSHA, 1943 ``` ``` MACA NO. 1530 OF 2012 ``` ``` AGAINST THE AWARD DATED 30.12.2010 IN OP(MV)NO.1451/2003 OF THE I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM ``` ## `APPELLANT/PETITIONER IN THE O.P.:` ``` MANI, S/O.JANARDHANAN MANI BHAVANAM, ADINAD, KOLLAM DISTRICT. ``` ``` BY ADVS.SRI.B.MOHANLAL SRI.T.PRASAD ``` ## `RESPONDENTS/RESPONDENTS: IN THE O.P.` ``` 1ASHOKAN N. BHARATHI, H.NO.201, WARD NO.IX, THATTAMALA P.O. KOLLAM. PIN.691020. ``` ``` 2BIJU KUNNATHU VEEDU, PATTATHANAM EAST, PATTATHANAM P.O., KOLLAM. PIN.691 016. ``` ``` 3THE ORIENTAL INSURANCE COMPANY LIMITED, KOLLAM. 691001. ``` ``` 4THE NEW INDIA ASSURANCE COMPANY LIMITED KOLLAM BRANCH, KOLLAM- 691 001. ``` ``` BY ADVS.SRI.LAL K.JOSEPH SRI. VPK.PANICKER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1530/2012 -:2:- Dated this the 3[rd] day of January,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1451/2003 on the file of the Additional Motor Accidents Claims Tribunal-I, Kollam. 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 28.05.2002. It was his case that, on the above date, while he was driving his car along the Kollam-Alappuzha National Highway road, a jeep bearing registration No.KL-2-J-399 (jeep), driven by the second respondent in a rash and negligent manner, hit the car of the appellant. The appellant sustained serious injuries. He was treated as an inpatient for a period of 85 days at the A.M. Hospital, Karunagappally and the Upasana Hospital, M.A.C.A.No.1530/2012 -:3:- Kollam. He sustained a fracture to the right tibia and the fourth rib. The appellant has suffered permanent disability. The first respondent was the owner and the third respondent was the insurer of the jeep. The appellant was a tailor by profession and earning a monthly income of Rs.3,500/-. Hence, he claimed a compensation of Rs.2,50,000/- from the respondents. 3. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. The third respondent entered appearance and filed a written statement contending that the jeep was not insured by them. Thereafter, the appellant impleaded the additional fourth respondent, on the assertion that the additional fourth respondent was the insurer of the jeep. 4. The additional fourth respondent had filed a written statement admitting that the jeep had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the M.A.C.A.No.1530/2012 -:4:- appellant and the police had initially filed the chargesheet against the appellant. Subsequently, on the basis of a private complaint filed by the appellant, the matter was investigated and then it was found that it was the second respondent who was negligent in causing the accident. Therefore, the additional fourth respondent prayed for exoneration of its liability. 5. The appellant produced and marked Exts.A1 to A5 in evidence. The respondent did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the additional fourth respondent an amount of Rs.90,750/with interest and cost. 7. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard; Sri.B.Mohanlal, the learned counsel appearing for the appellant/petitioner, Sri. M.A.C.A.No.1530/2012 -:5:- VPK.Panicker, the learned counsel appearing for the third respondent/insurer and Sri. Lal K. Joseph, the learned counsel appearing for the additional fourth respondent-insurer. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A2 judgment passed by the Judicial First Class Magistrate-I, Karunagappally, substantiates that the second respondent had pleaded guilty to the charges levelled against him in C.C.No.2041/2006 for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code. The second respondent was convicted and sentenced to a fine of pay Rs.2,000/-. The respondents have not let in any evidence to the contrary to the findings in Ext.A2 judgment. Admittedly, the additional fourth respondent M.A.C.A.No.1530/2012 -:6:- was the insurer of the jeep, which was owned by the first respondent. The additional fourth respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the additional fourth respondent is to indemnify the liability of the first respondent arising out of the accident. **Income:** 11. The appellant had claimed that he was a tailor by profession and earning a monthly income of Rs.3,500/-. However, the Tribunal, for the want of materials, fixed the notional monthly income of the appellant at Rs.2,500/-. 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 keeping in mind the fact that the accident M.A.C.A.No.1530/2012 -:7:- occurred in the year 2002, I re-fix the notional monthly income of the appellant at Rs.3,500/-. ## **Loss of earnings:** 14. The Tribunal has found that the appellant was indisposed for a period of five months. Taking into account the serious injuries sustained by the appellant, I confirm the said finding. 15. Nevertheless, in view of the re-fixation of the notional monthly income of the appellant at Rs.3,500/-, I award the appellant a further amount of Rs.5,000/towards ‘loss of earnings’. ## **: Loss due to disability** 16. The Tribunal found that the appellant has a permanent disability of 8% and awarded the appellant an amount of Rs.33,600/-. 17. In view of the re-fixation of the notional income of the appellant at Rs.3,500/- per month, I enhance the compensation under the head ‘loss due to disability’ by a further amount of Rs.13,440/-. M.A.C.A.No.1530/2012 -:8:- ## **Bystander expenses and extra nourishment:** 18. The appellant was treated as an inpatient for a period of 85 days. The Tribunal has awarded only an amount of Rs.2,000/- towards ‘bystander expenses’ and Rs.2,000/- towards ‘extra nourishment’, which according to me, is too meager. Taking into account the fact that the appellant was treated as an inpatient for a period of 85 days in the year 2002, I award him an amount of Rs.200/- per day for a period of 85 days towards ‘bystander expenses’ which works out to Rs.17,000/- i.e., an enhancement by Rs.15,000/-, and Rs.100/- per day for a period of 85 days towards ‘extra nourishment’, which amounts to Rs.8,500/- i.e., an enhancement of Rs.6,500/-. ## **Pain and sufferings:** 19. The Tribunal awarded the appellant an amount of Rs.10,000/- towards ‘pain and sufferings’ and Rs.3,000/- towards ‘loss of amenities’. On a M.A.C.A.No.1530/2012 -:9:- consideration of the serious injuries sustained by the appellant, that he was was indisposed for a period of five months, that he was treated as an inpatient for a period of 85 days, and that he has suffered a permanent disability of 8%, I award him a further amount of Rs.5,000/- under the head ‘pain and sufferings’ and Rs.17,000/- under the head ‘loss of amenities. 20. With respect to the other heads of compensation namely; 'transportation expenses’, 'damage to clothing’ and 'medical expenses', I find that the Tribunal has awarded reasonable and just compensation. 21. On a overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decision, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and M.A.C.A.No.1530/2012 -:10:- ## given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|12,500|17,500| |2|Transportation|750|750| |3|Damage<br>to<br>Clothing|500|500| |4|Bystander<br>expenses|2,000|17,000| |5|Extra nourishment|2,000|8,500| |6|Medical expenses|26,400|26,400| |7|Pain and sufferings|10,000|15,000| |8|Loss of amenities|3,000|20,000| |9|Loss<br>due<br>to<br>disability|33,600|47,040| ||**Total**|**90,750**|**1,52,690**| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.61,940/-** with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of realisation, after deducting interest for a M.A.C.A.No.1530/2012 -:11:- period of 311 days i.e., the period of delay in preferring this appeal and as directed by this Court on 02.08.2012 in C.M.Appln.No.1837/2012, and a cost of Rs.5,000/-. The additional fourth respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/03.01.22 //True copy/ P.A.To Judge