MACA No. 3121 of 2014 and MACA No. 2830 of 2014(C) – Consolidated Motor Accident Claims Appeals (Kerala High Court)

**MACA.No.3121 OF 2014** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942** **MACA.No.2830 OF 2014(C)** **AGAINST THE AWARD IN OPMV 1247/2008 OF ADDITIONAL DISTRICT COURT& MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA** **APPELLANT/S:** **THE ORIENTAL INSURANCE THIRUVALLA, REPRESENTED BY ITS AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-682018.** **BY ADV. SRI.A.R.GEORGE** **RESPONDENT/S:** **KUNJUMON V. S/O.GHEE VARGHESE, VATTAMTHITTA VADAKKETHIL HOUSE, THENGUMATHARA, MELOODU P.O., ADOOR.** **R1 BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2021, ALONG WITH MACA.3121/2014(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3121 OF 2014** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942** ## **MACA.No.3121 OF 2014** **AGAINST THE AWARD IN OPMV 1247/2008 DATED 06-05-2014 OF ADDITIONAL DISTRICT COURT& MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANT/S:** **KUNJUMON V S/O.GHEE VARGHESE, VATTAMTHITTA VADAKKETHIL HOUSE, THENGUMTHARA, MELOODU P.O., ADOOR.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT/S:** **1 REJI K.ISSAC KATOOR KALEECKAL, VETTIKODE, PALLICKAL P.O. - 691 566. 2 BIJU KUMAR K.D KIZHAKKEDATH HOUSE, VADAKKEDATHUKAVU P.O., ADOOR - 691 529. 3 THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO.LTD, MARTHOMA BUILDINGS, THIRUVALLA - 689 101.** **R1 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2021, ALONG WITH MACA.2830/2014(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3121 OF 2014** **3** ## **JUDGMENT** The appellant in MACA No.3121/2014 was the petitioner in O.P.(MV) No.1247/2008 of the Motor Accident Claims Tribunal, Pathanamthitta. The respondents in the appeal were the respondents 3 to 5 in the claim petition. The appellant in M.A.C.A No.2830/2014 was the 5[th] respondent in the claim petition. The respondent in the said appeal was the petitioner in the claim petition. The appellant in both the appeals are aggrieved by the award dated 6.5.2014 passed by the Tribunal. 2. As the appeals arise out of a common award passed in connection with the compensation granted on account of the accident sustained by the petitioner on 15.4.2008, they were consolidated and jointly heard and are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status in the claim petition before the Tribunal. 3. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1998, claiming **MACA.No.3121 OF 2014** **4** compensation for the petitioner, on account of the injuries that he sustained in an accident. 4. The case of the petitioner, in a nut-shell in the claim petition, is that on 15.4.2008 when he was rolling his bicycle on the Kayamkulam-Punalur Public road, a stage carriage vehicle bearing Reg. No.KL-04-T 9683 hit a Tempo Van bearing Reg. No.KL03-M-6318. The Tempo Van hit the petitioner, on account of which, he sustained serious injuries. He was treated as an inpatient from 15.4.2008 to 26.4.2008 at the Medical College Hospital and, thereafter, under different spells at the Pushpagiri Medical College Hospital, Thiruvalla from 26.4.2008 to 29.3.2017. The petitioner was aged 44 years at the time of accident and he was a headload worker/wood cutter having a monthly income of Rs.12,000/- per month. Hence, he claimed a total compensation of Rs.10 lakh from the respondent. 5. The respondents 1 to 4 were set ex parte. The 5[th] respondent– Insurance Company - contested the proceedings. The 5[th] respondent filed a written objection, inter alia, admitting that the offending **MACA.No.3121 OF 2014** **5** vehicles had valid insurance policies issued by it. However, it was contended that the compensation claimed by the petitioner was exorbitant and excessive. 6. The petitioner was examined as PW1 and Exts.A1 to A18 were marked through him. 7. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claimed, in part, by holding that the petitioner is entitled to recover from the respondents jointly and severally an amount of Rs.7,93,191/- with 9% interest from the date of petition till the date of realisation and also proportionate costs of Rs.48,864/-. The 5[th] respondent was directed to satisfy the amount within 30 days. 8. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- **MACA.No.3121 OF 2014** **6** |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded<br>(in rupees)|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|1,00,000|48,000|| |2|Transport<br>to<br>hospital|15,000|18,000|| |3|Extra<br>nourishment|13,000|5,000|| |4|Extra<br>nourishment|50,000|12,000|| |5.|Damage<br>to<br>clothing|2,000|2,000|| |5|Medical expenses|10,00,000|73,391|Ext.A18| |6.|Bystander's<br>expenses|20,000|25,000|| |7.|Pain & sufferings|1,00,000|75,000|| |8.|Compensation for<br>loss of earning<br>capacity||4,36,800|| |9.|Loss of amenities<br>and enjoyment of<br>life|6, 50,000|80,000|| |10|Future medical<br>expenses||30,000|| |||||| |||||| ||Total|10,00,000|7,93,191|| 9. The petitioner being dissatisfied with the quantum of compensation and the 5[th] respondent being aggrieved by the compensation awarded by the Tribunal are before this Court in the respective appeals. 10. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing **MACA.No.3121 OF 2014** **7** for the respondent/5[th] respondent. 11. The learned counsel appearing for the appellant contended that the Tribunal has gone wrong in fixing the notional income of the petitioner. Similarly, he argued that the Tribunal ought to have taken note of the fact that the petitioner had undergone treatment for 302 days in different spells in various hospitals. Hence, certainly the Tribunal ought to have awarded the compensation as claimed in the claim petition, instead of limiting the amount to that awarded by the Tribunal. 12. Per contra, the learned counsel appearing for the 5[th ] respondent argued that the Tribunal has gone wrong in fixing future prospects at 30%. As per the law laid down by the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** **[(2017) 16 SCC 680],** the Tribunal ought to have awarded only 25% towards future prospects. Likewise, the Tribunal has gone wrong in awarding interest towards future treatment which is impermissible in law. He also contended that the Tribunal has assessed **MACA.No.3121 OF 2014** **8** the disability of the petitioner at 50%, though Ext.P6 disability certificate shows that the petitioner has only 35% disability. He, hence argued that the amount awarded by the Tribunal was excessive and the same has to be scaled down. 13. Pursuant to the order dated 7.9.2020 passed by this Court, the petitioner was referred to the Medical Board of the Pathanamthitta District Hospital. The Medical Board by certificate dated 5.10.2020 has examined the petitioner and assessed his functional disability at 85%. The said certificate is taken on record and marked as Ext.X1. 14. The sole question that emerges for consideration in these appeals is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 15. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Ltd. v. Company 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 **MACA.No.3121 OF 2014** **9** 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 nonviolation of the principle of equitability. ## **Permanent Disability** 16. It is not in dispute that the petitioner was aged 44 years at the time of accident. He claimed himself to be a headload worker/wood cutter by profession. As per Ext.A6 disability certificate issued by the Medical Board, the petitioner's disability has been certified at 35%. Pursuant to the directions of this Court, the Medical Board of the General Hospital, Pathanamthitta by Ext.X1, has certified that the petitioner's functional disability at 85%. However, the Tribunal after seeing the petitioner, who was examined as PW1, and after appreciating the materials on record has assessed his disability at 50%. 17. In light of the fact that the contradictory findings of the two Medical Boards in Exts.A6 and X1, **MACA.No.3121 OF 2014** **10** wherein, the first Board has certified his disability at 35% and the second Board has certified his disability at 85%, I am of the considered opinion that the Tribunal, who is the best Judge, after having seeing the petitioner, who was examined as PW1, has rightly assessed his disability at 50%. Hence, I accept the assessment made by the Tribunal at 50%. ## **Notional Income** 18. The respondent does not have a case that the petitioner was not a headload worker/wood cutter by profession. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236] and **in Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd** [(2014) 2 SCC 735] has fixed the notional income of persons working in unorganised sector. 19. The Hon'ble Supreme Court in **Ramachandrappa** and **Syed Sadiq** (supra) has fixed the notional income of a coolie worker at Rs.4,500/- per month in the year, 2004 and for a **MACA.No.3121 OF 2014** **11** vegetable vendor at the rate of Rs.6,500/- per month in the year 2008. Recently, this Court in **Soman v. Jinesh James and others** [ILR 2020 (3) Kerala 1003] has fixed the notional income of the coolie worker in - the year 2010 at Rs.7,500/ per month. 20. Going by the parameters laid down by the Hon'ble Supreme Court and this Court in the aforecited precedents, I am of the considered opinion that the petitioner, who was a Headload worker/wood cutter in the year 2008, his notional income can safely be fixed at Rs.8,000/- per month. Accordingly, I fix the notional income of the petitioner at Rs.8,000/-. ## Future prospects 21. It is seen that the Tribunal has awarded future prospects at 30%. In view of the categoric declaration of law in **Pranaya Sethi (supra)** and **Satinder Kaur @ Satwinder Kaur and others [(2020(3)KHC 760]** as well as **Pappu Deo Yadav v. Naresh Kumar and others (Civil Appeal No.2567/2020),** the Hon'ble Court has fixed the future prospects for a person at the age of 44 years at **MACA.No.3121 OF 2014** **12** 25%. Therefore, I scale down 5% towards future prospects and fix the compensation for future prospects of the petitioner at 25%. ## Multiplier 22. The petitioner was aged 44 years at the time of accident. The Tribunal has rightly fixed the multiplier at 14 as laid down in light of the ratio decidendi in **Sarla Verma & Others v. Delhi Transport Corporation** [(2009) 6 SCC 121] **, National Insurance Company Ltd. v. Pranay Sethi** and **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others** (supra). ## Loss of earnings 23. In view of the fixing of notional income of the petitioner at Rs.8,000/- I hold that the petitioner is entitled for loss of earnings for a period of one year. Accordingly, I enhance the amount from Rs.48,000/- to Rs.96,000/- i.e, Rs.8000x12 months. ## Bystander expenses 24. It is seen that the petitioner underwent treatment as an inpatient for a period of 271 days, as **MACA.No.3121 OF 2014** **13** evidenced by Exts.A9 to A12 prior to the award and for 31 days subsequent to the award, as discernible from Annexures A1 and A2. Therefore, I hold that the petitioner is entitled for bystander expenses at the rate of Rs.200/- for a period of 302 days. Accordingly, I enhance the compensation under the head bystander expenses from Rs.25,000/- to Rs.60,400/-. ## Pain and sufferings 25. It is seen that the Tribunal has awarded only an amount of Rs.75,000/- under the head pain and sufferings. The petitioner had claimed an amount of Rs.1 lakh under the said head. Due to the long hospitalisation of the petitioner as an inpatient for the period from 2008 to 2017, I am of the opinion that the petitioner is entitled for compensation under the head pain and sufferings as claimed in the claim petition at Rs.1,00,000/-. ## Future medical expenses 26. With respect to the compensation under the head 'future medical expenses, it is seen that the Tribunal had awarded an amount of Rs.30,000/-. The **MACA.No.3121 OF 2014** **14** petitioner has produced Annexures A1 to A3 series medical bills before this Court to substantiate that he had incurred an amount of Rs.49,226/- towards future medical treatment. Thus, after deducting the amount of Rs.30,000/- already awarded by the Tribunal, I award a further amount of Rs.19,226/- towards future medical treatment. ## Other heads of claim 27. With respect to amounts claimed under other heads of claim, namely, Transport to hospital, Clothing, Extra nourishment Medical expenses and Loss of amenities, I find that the Tribunal has awarded just and reasonable compensation. 28. On an overall appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the firm opinion that the petitioner is entitled for enhancement of the amounts as modified and re-calculated above and given in the table below for easy reference. **MACA.No.3121 OF 2014** **15** |SI.<br>No|Head of claim|Amount<br>claimed<br>(in<br>rupees)|Amount<br>awarded<br>(in<br>rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---|---| |1|Loss of earning|1,00,000|48,000|96,000| |2|Transport<br>to<br>hospital|15,000|18,000|18,000| |3|Extra<br>nourishment|13,000|5,000|5,000| |4.|Damage<br>to<br>clothing|2,000|2,000|2,000| |5|Medical<br>expenses|10,00,000|73,391|73,391| |6.|Bystander's<br>expenses|20,000|25,000l|60,400| |7.|Pain<br>&<br>sufferings|1,00,000/-|75,000|1,00,000| |8.|Compensation<br>for<br>loss<br>of<br>earning<br>capacity||4,36,800|8,40,000| |9.|Loss<br>of<br>amenities and<br>enjoyment<br>of<br>life|6, 50,000|80,000|80,000| |10|Future medical<br>expenses||30,000|49,226| ||Total|10,00,000|7,93,191|13,24,017| In the result, the appeals are disposed of, by enhancing the compensation by a further amount of Rs.5,30,826/-. Considering the fact that the petitioner has been awarded 49,226/- towards future treatment, I am of the opinion that the petitioner is not entitled for **MACA.No.3121 OF 2014** **16** interest for the said amount. However, the petitioner would be entitled for interest at the rate of 9% per annum for the balance amount of Rs.4,81,600/-. The respondent/5[th] respondent – the Insurance Companyshall deposit the additional compensation granted as per this common judgment before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the appellant/petitioner towards balance court fee and legal benefit fund. The disbursement of compensation and additional compensation to the appellant/petitioner shall be done by the Tribunal in accordance with law. ma/21.01.2021 Sd/- C.S.DIAS, JUDGE ## /True copy/ P.S to Judge