MACA No. 1947 of 2009

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943** **MACA NO. 1947 OF 2009** ## **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1553/2003 OF ADDITIONAL MOTOR** ## **ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** MR.THOMAS K.THOMAS, S/O.K.A.THOMAS, KANNANKERIL HOUSE, SUNDRAGIRI, KALAMASSERY P.O.,, ERNAKULAM. BY ADVS. SRI.LALJI P.THOMAS SMT.C.N.NOORUL HIDAYA ## **RESPONDENTS/RESPONDENTS:** 1 P.KALIAPPAN, MANAGING PARTNER, M/S.JAYASREE TRANSPORT CORPORATION,, 3/213 A, BADARIYA COMPLEX, NORTH KALAMASSERY, KOCHI. 2 SHANMUGHAVEL K., S/O.KARUPASWAMI, 3/111, PILLAIYAR KOIL STREET, KEELAPPILAIYARKULAM, MANOOR, THIRUNELVELI-627 201. 3 M/S.NEW INDIA ASSURANCE CO. LTD., RAM COMPLEX, 29 PARAMATH ROAD, NAMAKKAL. BY ADVS. SHRI.SURESH SUKUMAR SRI.LAL K.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1947 OF 2009 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1553 of 2003 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The concise case of the appellant in the claim petition, relevant for the determination of the appeal are: on 26.2.2003, while the appellant and his daughter were travelling on a scooter bearing Reg.No.KL-07/R 7715 through the Ernakulam - Aluva road, when they reached Kalamassery Premier Junction, a tanker lorry bearing Reg.No.KL-07/AG 9117 (offending vehicle) driven by the 2[nd] respondent passed by the side of the scooter and concentrated sulfuric acid spilt from the offending vehicle and fell on the appellant and his **MACA NO. 1947 OF 2009 3** daughter. They sustained burn injuries and were treated as in patient at the Ernakulam Medical Centre Hospital from 26.2.2003 to 3.3.2003. The appellant was a Pharmacist by profession and earning a monthly income of Rs.9,510/-. The offending vehicle belonged to the 1[st] respondent and was insured with the 3[rd] respondent. The appellant claimed a total compensation of Rs.5,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings. 4. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy, but denied the negligence on the part of the 2[nd] respondent. 5. The appellant had also filed OP(MV) No.1552 of 2003 before the same Tribunal, claiming **MACA NO. 1947 OF 2009 4** compensation on account of the burn injuries sustained by his daughter. 6. The Tribunal consolidated both the original petitioners and jointly tried the same. The appellant marked Exts.A1 to A14 in his claim petition. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by directing the 3[rd] respondent to pay the appellant an amount of Rs.17,777/- with interest at 8% per annum from the date of filing of the claim petition till the date of realization and Rs.500/- as costs. 8. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 9. Heard, the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent/insurance company. ## **MACA NO. 1947 OF 2009 5** 10. The sole question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. 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 through the prism of fairness, reasonableness and non-violation of the principle of equitability. 12. Ext.A3 charge sheet filed by the police proves that the appellant sustained burn injuries due to the **MACA NO. 1947 OF 2009 6** spiling over sulfuric acid from the offending vehicle. The offending vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. Therefore, it is the 3[rd] respondent who is liable to indemnify the 1[st] respondent for the liability caused on account of the accident. 13. As per Ext.A11 wound certificate, proves that the appellant sustained superficial burn injuries on parietal region, right side of forehead, right side of face, right shoulder chest wall, both forearms, both wrists, both knees and both legs. The appellant was treated as an inpatient from 26.2.2003 to 3.3.2003. Notional Income 14. The appellant had claimed that he was a Pharmacist by profession and earning a monthly income of Rs.9510/- as reflected in Ext.A8 salary certificate. **MACA NO. 1947 OF 2009 7** However, the Tribunal did not fix the income of the appellant. Taking into account Ext.A8 salary certificate and that the appellant was a Pharmacist by profession, I accept and fix his income at Rs.9,500/- per month as per Ext.A8. ## **Loss of earnings** 15. Considering the fact that the appellant had sustained burn injuries all over his body as evidenced from Ext.A11 wound certificate and that he was indisposed for a period of three months, I fix his loss of earnings at Rs.28,530/-, i.e., Rs.9510/- for three months, the period he was incapacitated, instead of Rs.5,000/awarded by the Tribunal, i.e., an enhanced compensation of Rs.23,530/-. ## **Pain and sufferings** 16. The appellant had claimed an amount of **MACA NO. 1947 OF 2009 8** Rs.1,00,000/- as compensation for 'pain and sufferings'. The Tribunal awarded only an amount of Rs.5,000/-, which according to me is on the lower side. Taking note of the burn injuries sustained by the appellant and that he was hospitalized for a period of five days, I refix the compensation under the head 'pain and sufferings' at Rs.10,000/-, i.e., the enhancement by Rs.5,000/-. ## **Loss of Amenities** 17. The appellant had claimed an amount of Rs.1,00,000/- under the head 'loss of amenities'. The Tribunal only awarded an amount of Rs.2,000/-, which again is a meager amount. Keeping in mind injuries sustained by the appellant and that he was indisposed for a period of three months, I hold that the appellant is entitled for 'loss of amenities' at Rs.12,000/-, i.e., an enhancement of Rs.10,000/-. **MACA NO. 1947 OF 2009 9** ## **Compensation due to disfigurement** 18. The appellant had claimed an amount of Rs.1,00,000/- as compensation under the above said head. Nonetheless, the Tribunal did not award any amount. 19. Ext.A11 wound certificate proves that the appellant sustained burn injuries on the parietal region, right side of forehead, right side of face, right shoulder chest wall, both forearms, both wrists, both knees and both legs, which one second degree burns has led to disfiguration of the body of the appellant. Taking into account the peculiar facts and circumstances of the case and the disfiguration caused to the appellant due to burn injuries, I hold that the appellant is entitled for Rs.25,000/- as compensation for disfigurement. 20. With respect to the other heads of **MACA NO. 1947 OF 2009 10** compensation, I find that the Tribunal has awarded reasonable and just compensation. 21. On an over all re-appreciation of the pleadings and materials on record, I am of the definite opinion that the appellant is entitled for an enhanced compensation as mentioned and recalculated above, i.e., an enhancement of Rs.23,530/- for 'loss of earnings', Rs. 25,000/for compensation for disfiguration, enhancement of Rs.10,000/- for compensation under the head 'loss of amenities' and an enhancement of Rs.5,000/- under the head 'pain and sufferings', totaling to an Rs.68,530/-. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.68,530/ with interest @ 8% per annum on the enhanced compensation from the date of petition till the **MACA NO. 1947 OF 2009 11** date of deposit and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. sd/- **C.S.DIAS, JUDGE** pm