MACA No. 2146 of 2009

``` MACA NO. 2146 OF 2009 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, ``` ``` 1943 ``` ``` AGAINST THE AWARD DATED 28.02.2009 IN OP(MV)NO.1120/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR. ``` ## `APPELLANT/PETITIONER:` ``` 1SUBRAMANIAN(DIED), PASHNATH HOUSE, CHOOLPRAM DESOM, IRINGAPRAM AMSOM, P.O.KOTTAPPADY- 680505, CHAVAKKAD TALUK MENTALLY INFIRM APPELLANT, REP. BY NEXT FRIED YESODHA, W/O.SUBRAMANIAN,, PASHNATH HOUSE, CHOOLPRAM DESOM, IRINGAPRAM AMSOM, P.O.KOTTAPPADY- 680505 ``` ## `ADDITIONAL APPELLANTS 2 TO 4 ARE IMPLEADED.` ``` 2P.S SHYLESH, AGED 38 YEARS, S/O SUBRAMANYAN,PASHNATH HOUSE, CHOOLLPRAM DESOM ,IRINGAPRAM AMSAM PO,KOTTAPADY,680505, CHAVAKAD TALUK ``` ``` 3P.S LISHA, D/O SUBRAMANYAN PASHNATH HOUSE, IRINGAPRAM DESOM ,KOTTAPADY PO 4P.S SHIYA, D/O SUBRAMANYAN, PASNATH HOUSE,CHOOLAPRAM DESOM, IRINGAPRAM AMSOM,KOTTAPADY PO ``` ``` LRS OF THE DECEASED SOLE APPELLANTS ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER DATED 17.07.12 IN IA 1299/12 IN MACA 2146/2009 ``` M.A.C.A.No.2146/2009 -:2:- ``` BY ADVS.SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.SHEJI P.ABRAHAM ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1DR.M.A.M.BAVA, MATHILAKATH, TANUR ROAD, TIRUR-676101. ``` ``` 2C.M.MUHAMMEDKUTTY, S/O. MAMMU, CHALTHOTH HOUSE, P.O.MARANCHERRI-679581, MLALAPPURAM DISTRICT. ``` ``` 3THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, THAZHEPPALAM, TIRUR. ``` ``` BY ADVS.SRI.GEORGE CHERIAN (SR.) SRI.C.PRABIN BENNY SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2146/2009 -:3:- Dated this the 11[th] day of November,2021 ## **J U D G M E N T** The original appellant was the petitioner in O.P. (MV) No.1120/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. During the pendency of the appeal, the original appellant died and his legal representatives – his children – have been impleaded as additional appellants 2 to 4. The respondents in the appeal were the respondents before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner through his next friend and wife had filed the claim petition, inter alia, stating that, on 18.06.2003, while the petitioner was walking along the Mammiyur-Thamarayur public road, a car bearing registration No.KL-10/K-9677(car), driven by the second respondent in a rash and negligent manner, M.A.C.A.No.2146/2009 -:4:- hit the petitioner. The petitioner sustained serious injuries and was treated as an inpatient for a period of 68 days in four spells at two different hospitals spanning from 18.06.2003 to 13.12.2003. The petitioner was a retired postal clerk and was earning a monthly income of Rs.2,500/-. The car was owned by the first respondent and insured with the third respondent. The petitioner became permanently disabled. Hence, he claimed an amount of Rs.9,45,000/- as compensation from the respondents. 3. The respondents 1 and 2 had filed a joint written statement, refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the petitioner himself. The said respondents also disputed the age, income and occupation of the petitioner. 4. The third respondent-insurer had also filed written statement contending that the accident occurred due to the negligence of the petitioner. The M.A.C.A.No.2146/2009 -:5:- third respondent also disputed the age, occupation and income of the petitioner. Nevertheless, the third respondent admitted that the car had a valid insurance policy. 5. The doctor, who issued the discharge certificate was examined as PW1 and Exts.A1 to A14 were marked in evidence. The third respondent produced the insurance policy, which was marked as Ext.B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to realise from the third respondent an amount of Rs.2,10,350/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner had preferred the appeal. M.A.C.A.No.2146/2009 -:6:- 8. Heard; Sri. D. Narendranath, the learned counsel appearing for the appellants and Smt. K.S. Santhi, the learned counsel appearing for the third respondent-insurer. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A5 chargesheet filed by the Guruvayur Police in Crime No.2009/2003 substantiates that the accident occurred due to the negligence of the second respondent. Ext.A6 judgment passed by the Judicial First Class Magistrate, Chavakkad, in C.C.No.775/2003 establishes that the second respondent had pleaded guilty to Ext.A5 chargesheet and he was convicted for the offences punishable under Sections 279 and 338 of the Indian Penal Code, 1860, and he was sentenced to pay a fine of Rs.1,000/- each for the above said offences. In view of Ext.A6 judgment, which has M.A.C.A.No.2146/2009 -:7:- attained finality, it is proved beyond any semblance of doubt that the accident happened due to the negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the car. The third respondent has admitted that the car had a valid insurance policy and has not proved that the first respondent had violated the policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income and age:** 11. It is averred in the claim petition that the petitioner was aged 62 years and he was a retired postal clerk, and was earning a monthly income of Rs.2,500/-. However, the Tribunal for the want of materials, fixed the notional income of the petitioner at Rs.2,000/-. 12. In **Ramachandrappa v. Manager, Royal** M.A.C.A.No.2146/2009 -:8:- ## **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 taking into account the fact that the accident occurred in the year 2003, I re-fix the notional income of the petitioner at Rs.2,500/- per month. ## **Disability:** 14. The petitioner has produced Ext.A11 disability certificate, which was proved through PW1. He also has produced Ext.A14 disability certificate. Ext.A11 was issued by the Neuro Surgeon of the Medical College Hospital, Thrissur, who has certified and testified that the petitioner has a neurological disability of 30% due to recurrent episodes of emotional outbursts which could be due to the temporal lobe seizures, memory disturbances, M.A.C.A.No.2146/2009 -:9:- impairment of the higher mental functioning, mild weakness of the right side of the body and walking disability. 15. The Orthopedic Surgeon of the very same hospital has in Ext.A14 certified that the petitioner has a permanent whole body disability of 15% as per the Mc Bride Scale for the reason that he has stiffness of his hip, wasting of the hip and thigh muscles, malunion of the tibia and fibula, stiffness of the right knee etc. 16. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that what needs to be looked into in a case of injury, is the functional disability of the injured/claimant. 17. In the case at hand, it is proved as per Exts.A11 and A14 disability certificates read with the oral testimony of PW1 that the petitioner has sustained both neurological and orthopedic disability of 30% and 15%, respectively. M.A.C.A.No.2146/2009 -:10:- 18. It is to be borne in mind that the petitioner was aged 62 years at the time of accident. 19. On a consideration of Exts.A11 and A14 and the evidence of PW1 and also the ratio in **Rajkumar** (supra), I fix the petitioner’s ‘functional disability’ at 30%. ## **Multiplier** 20. Admittedly, the petitioner was aged 62 years at the time of accident. In the light of the law laid down in **Sarla Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier is '7'. ## **Loss due to disability:** 21. Taking into account the above mentioned factors, namely; the monthly income of the petitioner at Rs.2,500/-, his ‘functional disability’ at 30% and the ‘multiplier’ at ‘7’, I award the petitioner compensation for ‘loss due to disability’ at Rs.63,000/-, instead of Rs.36,000/- awarded by the Tribunal. M.A.C.A.No.2146/2009 -:11:- ## **Loss of earnings:** 22. Even though the petitioner had claimed ‘loss of earnings’ for 10 months, the Tribunal has not awarded any amount under the said head. 23. Taking into account the fact that the petitioner was only 62 years of age at the time of accident and he was treated as an inpatient for 68 days, spanning four spells in two different hospitals for the period from 18.06.2003 to 13.12.2003, I hold that the petitioner was indisposed for a period of 10 months. 24. In view of the re-fixation of the ‘notional monthly income’ of the petitioner at Rs.2,500/- per month, I award him ‘loss of earnings’ at Rs.25,000/-. ## **Bystander expenses:** 25. The Tribunal has awarded an amount of Rs.5,600/- toward ‘bystander expenses’, which according to me, is on the lower side. 26. On a consideration of the fact that the M.A.C.A.No.2146/2009 -:12:- petitioner was treated as an inpatient for a period of 68 days, in four spells in two different hospitals, I award the petitioner an amount of Rs.250/- per day for a period of 68 days, which works out to Rs.17,000/- ## **Extra nourishment:** 27. In view of the compensation awarded under the head ‘bystander expenses’, I award the petitioner an amount of Rs.150/- per day for a period of 68 days towards ‘extra nourishment’. Hence, I award the an amount of Rs.10,200/-, instead of Rs.2,000/- awarded by the Tribunal under the said head. ## **Loss of amenities** : 28. The petitioner was treated as an inpatient for a period of 68 days, he has also suffered a ‘functional disability’ of 30% and was indisposed for a period of 10 months. Taking into account the above mentioned factors, I award the petitioner compensation for ‘loss of amenities’ at Rs.30,000/-. 29. With respect to the other heads of M.A.C.A.No.2146/2009 -:13:- compensation, I find that the Tribunal has awarded reasonable and just compensation. 30. On a comprehensive re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and 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|Nil|25,000| |2|Transportation<br>expenses|2,000|2,000| |3|Extra nourishment|2,000|10,200| |4|Bystander<br>expenses|5,600|17,000| |5|Damage<br>to<br>clothing|500|500| |6|Medical expenses|1,44,250|1,44,250| |7|Pain and sufferings|20,000|20,000| |8|Loss of amenities|Nil|30,000| |9|Loss<br>due<br>to|36,000|63,000| M.A.C.A.No.2146/2009 -:14:- disabilit y **Total 2,10,350 3,11,950** In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **Rs.1,01,600/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.10,000/-. The third 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. The Tribunal shall disburse the enhanced compensation to the additional appellants 2 to 4 in equal shares and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/11.11.21 //True copy/ P.A.To Judge