MACA No. 913 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **MACA NO. 913 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 261/2006 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANTS/PETITIONERS:** 1 BABURAJ, (DIED) 2 SANTHA, W/O. BABURAJ, MUNDATHOLI HOUSE, CHELAKKARA (VIA), THONOORKKARA P.O., VADAKKANCHERRY, THRISSUR. 3 PRAVEEN RAJ, S/O. BABURAJ -DO4 KAVEEN S/O. BABURAJ -DO5 SAVIN, S/O. BABURAJ -DOBY ADVS. SRI.SHEJI P.ABRAHAM SMT.GISA SUSAN THOMAS ## **RESPONDENTS/RESPONDENTS:** 1 KRISHNAKUMAR, S/O.VASUDEVAN, POONANIKKAL HOUSE, THONOORKKATA VILLAGE,, KIZHAKKUMURI, CHELAKKARA, THRISSUR. 2 CHOLAMANDALAM M.S.GENERAL INSURANCE CO. LTD., IIND FLOOR, ACEL ESTATE, CHITTOOR ROAD, COCHIN11, POLICY CERTIFICATE NO., KTC 00351608-000-00 VALID 6.7.2004 TO 4.7.2005). BY ADVS. **MACA NO. 913 OF 2010 2** SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 913 OF 2010 3** ## **JUDGMENT** The deceased appellant was the original petitioner in OP(MV) No.261 of 2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. Pending the claim petition, the 1[st] appellant died on 25.5.2006 and the appellants 2 to 5 were impleaded as supplemental petitioners 2 to 5 before the Tribunal. 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 in the claim petition. 2. The concise case of the petitioners in the claim petition, relevant for the determination of the appeal are: on 21.5.2005, while the original petitioner was walking through Chelakkara – Pazhyannur road, when he reached Meppadam, a motor cycle bearing Reg.No.KL-8 AB-1186 driven by the 1[st] respondent in a rash and negligent manner hit the original petitioner. He sustained serious **MACA NO. 913 OF 2010 4** injuries including a communated fracture clavicle right, fracture 3[rd] and 4[th] metacarpal right and communated fracture ulna D/4 undisplaced. He was treated as an inpatient for a period of two days. The offending motor cycle was insured with the 2[nd] respondent. The original petitioner was a business man by profession and earning a monthly income of Rs.6,000/-. The original petitioner was incapacitated for a period of three months. It was contended that the respondents 1 to 3 were jointly and severally liable to pay compensation, which was quantified at Rs.2,42,500/-, but limited to 1,50,000/-. 3. The 1[st] respondent remained ex parte. The 2[nd] respondent filed a written statement, disputing the age, income and occupation of the original petitioner. However, the 2[nd] respondent admitted that the motorcycle had a valid insurance policy. 4. Pending the original petition, the original petitioner expired on 25.5.2006 and the supplemental **MACA NO. 913 OF 2010 5** petitioners 2 to 5 were impeaded as per order in I.A.No.1879 of 2007 dated 31.7.2007, and consequential amendments were carried out in the claim petition. 5. The petitioners 2 to 4 marked Exts.A1 to A9 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by permitting the petitioners 2 to 5 to realise an amount of Rs.25,400/- with interest @ 8% per annum from the date of filing of the claim petition till the date of realization and Rs.750/- as costs from the respondents. The 2[nd] respondent was directed to pay the compensation. 7. Dissatisfied with the quantum of compensation, the petitioners 2 to 5 are in appeal. 8. Heard, the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the 2nd respondent. ## **MACA NO. 913 OF 2010 6** 9. The sole question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. 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 nonviolation of the principle of equitability. 11. Ext.A5 Final Report filed by the police substantiates that the accident occurred solely due to the negligence on the 1[st] respondent. Admittedly, the 2[nd] respondent was the insurer of the vehicle. Therefore, it is **MACA NO. 913 OF 2010 7** the 2[nd] respondent who is liable to indemnify the 1[st] of his liability to pay the compensation to the petitioners. 12. It is averred in the claim petition that the deceased original petitioner was a business man by profession and earning a monthly income of Rs.6,000/per month. However, the Tribunal, for the want of material, fixed the notional income of the original petitioner at Rs.2,500/- per month. ## **Notional Income** 13. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)**_ has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/- per month. 14. Following the parameters laid down in the aforecited decision and considering the fact that the original petitioner was a business man by profession and that the accident occurred in the year 2005, I fix the **MACA NO. 913 OF 2010 8** notional income of the original petitioner at Rs.5,000/per month. ## **Loss of earnings** 15. In view of the refixation of the notional income of the original petitioner and that he treated as an inpatient for a period of three months, I enhance the compensation for 'loss of earnings' at Rs.15,000/- instead of Rs.7,500/- awarded by the Tribunal. ## **Pain and sufferings** 16. Although the petitioners had claimed an amount of Rs.15,000/- under the head 'pain and sufferings', the Tribunal awarded only at Rs.8,000/-. It is seen from Ext.A2 wound certificate and Ext.A6 discharge summary that the original petitioner had sustained three fractures and was hospitalised for a period of two days and also indisposed of for a period of three months. Considering the said factors, I hold that the petitioners are entitled for compensation under the head 'pain and sufferings' at **MACA NO. 913 OF 2010 9** Rs.15,000/-, i.e an enhancement of Rs.7,000/-. 17. The petitioners had claimed an amount of Rs.10,000/- towards 'loss of amenities'. However, the Tribunal only awarded an amount of Rs.4,000/-, which I feel is on the lower side. Hence, I enhance a further amount of Rs.2,500/-. 18. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 19. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforecited decisions, I am of the opinion that the appeal is to be allowed by enhancing the compensation under the aforementioned heads. In the result, I allow the appeal by enhancing the compensation by a further amount of Rs.17,000/- (i.e. Rs.7,500/- for loss of earnings, Rs.7,000/- for pain and sufferings and Rs.2,500/- for loss of earnings) with **MACA NO. 913 OF 2010 10** interest at the rate of 8% per annum on the enhanced compensation from the date of petition till the date of deposit, after excluding the period for 228 days , i.e., the period of delay in filing the appeal and as ordered by this Court on 12.11.1999 in I.A.No.1175 of 2010, and proportionate costs. The 2nd 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 appellants/petitioners in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm