MACA No. 1973-2006

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 ``` ## **`MACA NO. 1973 OF 2006`** ## **`AGAINST THE AWARD DATED 27.09.2005 IN OPMV 24/2002 OF MOTOR`** ## **`ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA`** ## **`APPELLANT/PETITIONER:`** ``` VELAYUDHAN, S/O ARUMUGHAM ALUVILA PUTHEN VEEDU, KALLAMBALAM, BALARAMAPURAM P.O. ``` ``` BY ADV SRI.B.JAYASURYA ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 M.R.RAJAGURUBAL, MAVILA VEEDU, KANJIRAMKULAM P.O.` - `2 MADHUKUMAR S/O.NESAMONY NEDIYAKADA VEEDU,, KANJIRAMKULAM P.O.` - `3 THE MANAGER NEW INDIA ASSURANCE CO. LTD.,, SREE HARI BUILDING, IIND FLOOR,, BUS STAND, NEYYATTINKARA.` - `4 CHANDRASENAN S/O.SOMAN PARVANENDU VEEDU, KAVINPURAM,, PANAYARAKUNNU, KOTTUKAL,, KATTACHALKUZHI P.O. SMT.T.C.SOWMIAVATHY.` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 MACA No1973-2006 ## **Dated this the 25[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.24/2002 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. 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 11.11.2001. It was his case that, on the aforesaid date, while he was walking along the Thiruvananthapuram - Balaramapuram National Highway road, a Maruti car bearing registration No.KL 01/M/8769 (car), driven by the 2[nd] respondent in a rash 3 MACA No1973-2006 and negligent manner, hit on the back of a scooter bearing registration No. KL 01 G 4348 (scooter), which in turn hit the appellant. The appellant sustained serious injuries, including a fracture of his scapula right, fracture of the lateral malleolus left and head a injury. The appellant was treated as an inpatient at the Medical College, Hospital, Thiruvananthapuram from 11.11.2001 to 21.11.2001 and from 3.12.2001 to 20.12.2001. The car was owned by the 1[st] respondent and insured with the 3[rd] respondent. The scooter was owned and driven by the 4[th] respondent and insured with the same insurance company – the 3[rd] respondent. The appellant claimed that he was a hotel worker by profession and earning a monthly income of Rs.3000/-. Hence the appellant claimed from the respondents a compensation of Rs.3,45,000/-, which claim was limited to Rs.2,50,000/- 3. The respondents 1 and 2 had filed a joint written statement refuting the allegations in the claim petition. 4 MACA No1973-2006 They contended that there was no negligence on the part of the 2[nd] respondent. They asserted that the accident occurred due to the negligence of the 4[th] respondent, who hit the appellant from behind. 4. The third respondent had filed a written statement admitting that both the car and scooter had valid insurance coverages. However, it was contended that the compensation claimed by the appellant was excessive. 5. The fourth respondent had filed a written statement contending that the accident occurred due to the negligence of the 2[nd] respondent. It was also stated that the 4[th] respondent had filed O.P.(M.V) No.489/2002, seeking compensation from the respondents 1 to 3. Hence, the 4[th] respondent prayed for exoneration of any liability. 6. The appellant had examined himself as PW1 and marked Exhibits A1 to A16 in evidence. The respondents did not let in any evidence. 5 MACA No1973-2006 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise from the 3[rd] respondent an amount of Rs.57,620/- with interest. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard Sri. B.Jayasurya, the learned counsel appearing for the appellant/petitioner and Smt.T.C.Sowmiavathy, the learned counsel appearing for the 3[rd] respondent/insurer. 10. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Exhibit A6 charge sheet filed by the Balaramapuram police in Crime No.380/2001, proves that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. 6 MACA No1973-2006 The respondents have not let in any evidence to discredit Exhibit A6 the charge sheet. Similarly, the third respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was a hotel worker by profession and earning monthly income of Rs.3000/-. For the want of material, the Tribunal fixed the notional monthly income of the appellant at Rs.2000/-. 13. 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. 14. Following the yardstick in the afore-cited 7 MACA No1973-2006 decision and considering the fact that the accident occurred in the year 2001, I fix the notional monthly income of the appellant at Rs.3000/-. ## **Disability** 15. It is on record, as per Exhibit A2 wound certificate, that the appellant had sustained a fracture of his right scapula, fracture of the left lateral malleolus and a head injury. The Tribunal, on the basis of Exhibit A2 wound certificate and Exhibit A3 treatment certificate, fixed the permanent disability of the appellant at 8%. 16. The appellant has produced before this Court Exhibit A17 disability certificate, issued by the Assistant Professor of Orthopedics, Medical College Hospital, Thiruvananthapuram, certifying that the appellant has a malunion of the fracture in 10[0 ] and 12[0] angulation of his left ankle and right shoulder respectively. It is also stated that the appellant gets recurrent headache and loss of memory. The appellant also has partial ankylios 8 MACA No1973-2006 of his left ankle and right shoulder. The Doctor has assessed and certified that the appellant has a permanent disability of 12%. 17. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has held that what needs to be looked into in a case of injury, is the functional disability of the injured-claimant. 18. Going by the assessment made by the Doctor in Exhibit A17, and considering the fact that the appellant was a hotel worker by profession, I fix the functional disability of the appellant at 12%. ## **Multiplier** 19. The appellant was aged 55 years at the time of the accident. Going by the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘11’. 9 MACA No1973-2006 ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.3000/-, his functional disability at 12% and the multiplier at 11, I award the appellant an amount of Rs.47,520/- towards ‘loss due to disability’, instead of 21,120/- awarded by the Tribunal. ## **Loss of earnings** 21. It is proved by Exhibit A2 wound certificate, Exhibit A3 treatment certificate and Exhibit A17 disability certificate that the appellant had sustained serious injuries. He was advised ten weeks bed rest as evidenced by Exhibit A3. The appellant being a hotel worker, certainly could not have done his work. Thus, I hold that the appellant was indisposed for a period of six months. 22. In view of the re-fixation of the notional monthly income of the appellant at Rs.3000/-, I award 10 MACA No1973-2006 him an amount of Rs.18,000/- towards ‘loss of earnings’. ## **- By stander expenses** 23. The appellant was treated as an inpatient for the period from 11.11.2001 to 21.11.2001 and from 3.12.2001 to 20.12.2001 i.e.for a period of 27 days. The Tribunal has awarded an amount of Rs.250/- towards bystander expenses, which is too meagre. 24. Considering the fact that the accident occurred in the year 2001, and that the appellant was hospitalised for a period of 27 days, I award him an amount of Rs.200/- per day for a period of 27 days, which works out to Rs.7250/-. 25. With respect to other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of 11 MACA No1973-2006 ## compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|6000|18000| |2|Transportation|500|500| |3|Clothing|250|250| |4|By stander expenses|250|7250| |5|Medical expenses|10000|10000| |6|Pain and suferings|12000|12000| |7|Loss of earnings|7500|7500| |8|Loss due to disability|21120|47520| ||||| ||Total|57620|103020| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.45,400/- with interest on the said amount at the rate of 6% per annum from the date of petition till the date of realisation, after deducting interest for a period of 116 days i.e the period of delay and as ordered by this Court on 15.9.2021 in C.M.Application No. 2075/2006, and a cost of Rs.5000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with 12 MACA No1973-2006 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 compensation amount to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** ## rmm25/11/2021 The figure shown as Rs.7,250/- in paragraph No.24 as well as against Sl.No.3 in the table in paragraph No.26 of the judgment dated 25.11.2021 in MACA No.1973/2006 stands corrected as ‘Rs.5,400/- and the total amount shown as Rs.1,03,020/- under the head amounts modified and recalculated by this Court in the above said table is corrected as Rs.1,01,170/and the enhanced compensation shown in the last paragraph is corrected as Rs.43,550/- instead of Rs.45,400/- as per the order dated 04/03/2022 in IA No.1/2022 in MACA No.1973/2006. Sd/Deputy Registrar 13 MACA No1973-2006 ## APPELLANT’S EXHIBITS ANNEXURE A1 – DISABILITY CERTIFICATE DATED 25.07.2003 ISSUED BY DR. J.R. JAGAJEEV, MEDICAL COLLEGE, THIRUVANANTHAPURAM. RESPONDENTS EXHIBITS NIL