M.A.C.A.No.2268-2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943** **MACA NO. 2268 OF 2010** **AGAINST THE AWARD DATED 30.04.2010 IN OPMV 1688/2003 OF THE** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** - 1 JAMES, S/O SEBASTIAN, AGED 49 YEARS THAIKKOTTATHIL HOUSE, CHOOLEZHATHU PARAMBU,, KARUVELIPPADY DESOM, THOPPUMPADY VILLAGE,, ERNAKULAM DISTRICT. ( EXPIRED) ** ADDL. APPELLANTS 1 TO 3 IMPLEADED. - 2 ADDL. JAIN, AGED 51 YEARS W/O. JAMES, THAIKKOTTATHIL HOUSE, CHOOLEZHATHUPARAMBU, KARUVELIPPADY DESOM, THOPPUMPADY VILLAGE, ERNAKULAM DISTRICT. - 3 ADDL. CHRISON JAMES AGED 30 YEARS S/O. JAMES, THAIKKOTTATHIL HOUSE, CHOOLEZHATHUPARAMBU, KARUVELIPPADY DESOM, THOPPUMPADY VILLAGE, ERNAKULAM DISTRICT. - 4 ADDL. CHRISTINA JAMES, AGED 28 YEARS D/O. JAMES, THAIKKOTTATHIL HOUSE, CHOOLEZHATHUPARAMBU, KARUVELIPPADY DESOM, THOPPUMPADY VILLAGE, ERNAKULAM DISTRICT, ** ADDITIONAL APPELLANTS 1 TO 3 IMPLEADED DUE TO THE DEATH OF THE ORIGINAL APPELLANT AS PER ORDER DATED 17/12/2021 IN I.A 1/21 IN MACA 2268/2010. BY ADV P.M.JOSHI ## **RESPONDENTS/RESPONDENTS:** - 1 SUBRAHAMANYAN S/O AYYAPPAN, NIKARTHIL HOUSE, RAMESWARAM VILLAGE,, THOPPUMPADY P.O., ERNAKULAM DISTRICT. - 2 RENJITHKUMAR R.SHENOY S/O.NOT KNOWN AGED NOT KNOWN, RADHA NIVAS, 18/2034,, PALLURUTHY P.O., KOCHI-6, ERNAKULAM DISTRICT - PIN- 682 006. * (DELETED) - 3 THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE, PUTHENPURACKAL CHAMBERS,, M.A.C.A.No.2268-2010 -:2:- PALLURUTHY P.O., KOCHI, PIN-682006. * RESPONDENT NO.2 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 13.11.2017 IN I.A.NO. 4237/17 IN MACA 2268/2010. BY ADV SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2268-2010 ## -:3:- ## **J U D G M E N T** The original appellant was the petitioner in O.P (MV) No.1688/2003 on the file of the Motor Accidents Claims Tribunal,Ernakulam. Pending the appeal, the original appellant died and his legal representatives - his wife and children - have been impleaded as supplemental appellants 1 to 3. The respondents in the appeal were the respondents before the Tribunal. At the instance of the original appellant, the second respondent has been deleted from the party array. Therefore, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 29.03.2003. It was M.A.C.A.No.2268-2010 -:4:- his case that, on the above said date, while he was riding his motorcycle bearing registration No. KL 7 AG 2977 an through Thoppumpady-Harbour bridge, autorickshaw bearing registration No. KL-7-G 2509 driven by the first respondent in a rash and negligent manner, hit the motorcycle of the petitioner. The petitioner fell down and sustained multiple injuries, including a communited fracture and dislocation of his right shoulder, fracture and dislocation of index finger and fracture and dislocation of left index finger. He was treated as an inpatient for a period of 11 days at the General Hospital, Ernakulam and at the Medical College Hospital, Kottayam. The autorickshaw was owned by the second respondent and insured with the third respondent. The petitioner was a driver employed with the Dakshina Bharat Hindi Prachar Sabha and drawing a monthly salary of Rs. 5000/-. Hence, the petitioner claimed a compensation of Rs.4,07,000/- from the respondents, which claim was M.A.C.A.No.2268-2010 -:5:- limited to Rs.4,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set exparte. 4. The third respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the petitioner. The third respondent also disputed the age, income and occupation of the petitioner. 5. The petitioner had produced and marked Exhibits A1 to A10 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to recover from the third respondent an amount of Rs.1,09,341/- with interest and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner has preferred M.A.C.A.No.2268-2010 ## -:6:- the appeal. 8. Heard; Sri.P.M. Joshi the learned counsel appearing for the appellant/petitioner and Sri.VPK Panicker, the learned counsel appearing for the original third respondent/insurer. 9. The point 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. Exhibit A2 charge sheet filed by the City Traffic Police in Crime No.1437/2003 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the autorickshaw. The respondents have not let in any evidence to discredit Exhibit A2 charge sheet. The third respondent has not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to M.A.C.A.No.2268-2010 -:7:- indemnify the liability of the second respondent arising out of the accident. ## **Income and loss of earnings** 11. The petitioner had pleaded in the claim petition that he was a driver by profession at the Dakshina Bharat Hindi Prachar Sabha and drawing a salary of Rs.5000/-. To substantiate his pleadings, he produced Exhibits A9 salary slip and A10 driving license. The Tribunal accepted the said documents and fixed the notional monthly income of the petitioner at Rs.6131/-. 12. The petitioner had also produced Exhibit A8 leave certificate to prove that he had suffered a loss of Rs.12,000/- towards ‘loss of earnings’. The Tribunal accepted Exhibit A8 and awarded the said amount to the appellant. ## **Disability** 13. On going through paragraph 7 of the impugned award, it is seen that the Tribunal has relied M.A.C.A.No.2268-2010 ## -:8:- on Exhibit A11 disability certificate issued by the District Medical Officer of Health, Ernakulam, certifying that the petitioner had permanent disability of 12%. Nonetheless, the said document is not marked in the appendix portion of the impugned award. The certificate is also not available in the lower courts records. Nevertheless, since there is no cross-objection from the side of the respondents, I accept the assessment of the disability made by the Tribunal based on Exhibit A11. 14. The Tribunal for the reason that the petitioner was permanently employed and did not suffer any loss of income due to the disability, adopted the multiplier at ‘7’ i.e. by taking the age of the appellant’s post retirement and awarded an amount of Rs.61,800/towards ‘loss due to disability’. 15. In **Puttamma and others v. K.L, Narayana Reddy and another** [2014 (1) KLT 738] followed by **N.Jayasree and Others vs. Cholamandalam M.S,** M.A.C.A.No.2268-2010 -:9:- **General Insurance Co Ltd. [2021 SCC Online SC 967]** the Honourable Supreme Court has held that the split multiplier method shall not be adopted without cogent reasons. 16. In the instant case, as the petitioner was permanently employed in the Dakshina Bharat Hindi Prachar Sabha and his income was not affected during his period of service due to the disability, I find the course adopted by the Tribunal to be cogent and justifiable. Nevertheless, as the petitioner has attained the age of superannuation at 60 years, the relevant multiplier to be applied is ‘9’ and not ‘7’ as adopted by the Tribunal. 17. It is also to be remembered that, on the petitioner attaining the age of 60 years, he would have got re-employed as a driver and earned an amount of Rs.10,000/-, if the yardsticks in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** is M.A.C.A.No.2268-2010 -:10:- followed. 18. In the above legal and factual background, although I apply the multiplier of 9, I re-fix the notional monthly income of the petitioner at Rs.10,000/- ## **Loss due to disability** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the petitioner at Rs.10,000/-, his functional disability at 12% and adopting the multiplier at ‘9’, I award the petitioner an amount of Rs.1,29,600/-, instead of Rs.61,800/- awarded by the Tribunal. ## **- By stander expenses and extra nourishment** 20. The Tribunal has awarded an amount of Rs.2500/- as by-stander expenses. 21.On a consideration of the fact that the petitioner was treated as an inpatient for a period of 11 days and the accident occurred in the year 2003, I award him an amount of Rs.300/- per day for a period of 11 days towards ‘by-stander M.A.C.A.No.2268-2010 ## -:11:- expenses’, which works out to Rs.3300/- and an amount of Rs.150/- per day for a period of 11 days towards ‘extra nourishment’ which works out Rs. 1650/-. ## **Pain and sufferings** 22. The Tribunal has awarded the petitioner an amount of Rs.15,000/- under the head ‘pain and sufferings.’ 23. Taking into account the multiple injuries sustained by the petitioner, that he was indisposed for a period of two months and that he has suffered a functional disability of 12%, I award him a further amount of Rs.10,000/- under the head ‘pain and sufferings’. 24. With respect to the other heads of compensation awarded by the Tribunal, I find the same to be reasonable and just compensation. 25. On a re-appreciation of the pleadings and materials on record and the law referred to in the M.A.C.A.No.2268-2010 -:12:- afore-cited decisions, I hold that the appellant/petitioner is entitled to 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|12000|12000| |2|Transport|1500|1500| ||Clothing|400|400| |4|Bystander expense|2500|3300| |5|Extra nourishment|0|1650| |6|Medical expenses|6141|6141| |7|Pain and sufferings|15000|25000| |8|Loss of amenities|10000|10000| |9|Loss<br>due<br>to<br>disability|61800|129600| ||**Total**|**109341**|**189591**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.80,250/- with interest at the rate of 7.5% per annum from the date of petition, after deducting interest for a period of M.A.C.A.No.2268-2010 -:13:- 44 days i.e. the period of delay and as ordered by this Court on 22.02.2018 in C.M. Application 2945/2010 and a cost of Rs.10000/-. 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 the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the additional appellants 1 to 3 in the ratio of 50:25:25 and in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm/03.02.2022