Madhu v. Titus A.J., Unni, and New India Assurance Company Ltd (MACA No. 1485 of 2010)

**MACA NO. 1485 OF 2010** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943 MACA NO. 1485 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1765/2002 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/PETITIONER:** MADHU, S/O.DASAPPAN @ DASAN, ANJILIPARAMBU HOUSE, CANAL WARD, ALAPPUZHA. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** 1 TITUS A.J., ARACKAL HOUSE, CANAL WARD, ALAPPUZHA. 2 UNNI, S/O.NARAYANAN, VELIYIL HOUSE INFRONT OF EXCEL GLASS LTD, WARD-II, MARAIKULAM SOUTH PANCHAYATH,PATHIRAPALLY. 3 MS.NEW INDIA ASSURANCE COMPANY LTD M.O.WARD, ALAPPUZHA. BY ADV SRI.P.G.GANAPPAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1485 OF 2010** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.1765/2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha. 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 31.3.2002. It was his case that, on the abovesaid day, while he was riding pillion on a motorcycle bearing Reg.No.KL-4H- 5325 (motorcycle) driven by the 2[nd] respondent along the Alappuzha – Ernakulam National Highway, when the motorcycle reached a place named 'Kommady', it hit a scooter coming from the opposite direction. Due to the impact, **MACA NO. 1485 OF 2010** **3** the appellant fell down and sustained serious injuries, including fracture of the first rib (left), fracture of the middle phalanex of the middle finger and traumatic brachial plexus palsy (L) side. He was treated as an inpatient at the Medical College Hospital, Alappuzha and the Indo American Hospital, Vaikom for a period of 15 days. The appellant was a Welder by profession in a private firm and was earning a monthly income of Rs.4,000/-. The motorcycle was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a total compensation of Rs.2,30,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] 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 scooter which hit against the motorcycle. Therefore, the 3[rd] respondent had to be **MACA NO. 1485 OF 2010** **4** exonerated of its liability. However, the 3[rd] respondent admitted that the motorcycle had a valid insurance coverage. 5. The petitioner examined two witnesses as PW1 and PW2 and marked Exts.A1 to A17 in evidence. The 3[rd] respondent produced a copy of 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 appellant to realise from the 3[rd] respondent an amount of Rs.2,20,000/- with interest and costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.A.N.Santhosh, the learned counsel appearing for the appellant/petitioner and Sri.P.G,Ganappan, the learned counsel appearing for the 3rd respondent- insurer of the motorcycle. **MACA NO. 1485 OF 2010** **5** 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 charge-sheet filed by the Police substantiates that the accident occurred due to the negligence of the 2[nd] respondent – the rider of the motorcycle on which the appellant was riding pillion. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the motorcycle. The 3[rd] respondent admitted that the motorcycle had a valid insurance coverage and has not proved that the 2[nd] 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** 11. The appellant has averred in the claim petition that he was a Welder by profession and was earning a monthly income of Rs.4,000/-. However, the Tribunal **MACA NO. 1485 OF 2010** **6** fixed the notional monthly income of the appellant at Rs.2,000/-. 12. In **Pushkar Mahra v. Brij Mohan Kushwah & Others** [(2015) 12 SCC 688.) the Hon'ble Supreme Court has fixed the notional monthly income of a Skilled labourer/Technician in the year 2010, at Rs.7,000/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2002, I hold that the notional monthly income of the appellant can safely be fixed at Rs.4,000/- as claimed in the claim petition. ## **Loss of earnings:** 14. It is proved by the appellant and found by the Tribunal that the appellant was indisposed for a period of six months. In view of the re-fixation of the notional monthly income of the appellant at Rs.4,000/-, I hold that the appellant is entitled for 'loss of earnings' at Rs.24,000/-, instead of Rs.12,000/- awarded by the **MACA NO. 1485 OF 2010** **7** Tribunal. ## **Disability** 15. The appellant had produced Ext.A1 disability certificate which was proved through PW1, the Doctor who issued the certificate. In Ext.A1, it is certified that the appellant’s upper limb is totally flail at the shoulder elbow and wrist and has 100% disability to the said limb. Accordingly, PW1 has certified that the appellant's whole body disability is to be treated at 50%. 16. The Tribunal after evaluating Ext.A4 and the oral testimony of PW1 has fixed the permanent disability of the appellant at 30%. 17. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC], the Hon'ble 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. 18. Going by the assessment made by PW1 in Ext.A1 and considering the fact that the appellant was a Welder by profession, and that now he has a complete brachial **MACA NO. 1485 OF 2010** **8** plexus palsy, I hold that the he is unable to carry on his avocation in the same manner prior to the accident. Therefore, I fix the functional disability of the appellant at 50% 19. In **Jagadish** v **Mohan and Others** .(2018) 4 SCC 571] followed by **Anthony @ Anthony Swamy v. Managing Director, Karnataka Road Transport Corporation** [(2020) 7 SCC 161] and in **Pappu Deo Yadav v. Naresh Kumar and others** ( AIR 2020 SC 4424), the Hon'ble Supreme Court has succinctly held that in the case of serious injury, the injured -claimant is also entitled to future prospects. 20. The case at hand is a fit one to award future prospects, since the appellant has suffered serious injuries to his left hand which has become totally lifeless. Moreover, being a welder by profession, he cannot carry on his avocation. In the above factual and legal matrix as the appellant has suffered a functional disability of 50%, I hold that the appellant is entitled to future prospects at **MACA NO. 1485 OF 2010** **9** 40%. ## **Multiplier** 21. The appellant was aged 23 years at the time of the accident. In the light of the law laid down in **Sarla Verma & Ors Vs. Delhi Transport Corporation [(2009) 6 SCC 121] ,** the relevant multiplier to be adopted is '18'. ## **Loss due to disability** 22. Taking into account the above-mentioned factors, namely, the monthly income of the appellant at Rs.4,000/-, his functional disability at 50%, the multiplier at '18' and future prospects at 40%, I hold that the appellant is entitled to compensation for ‘loss due to disability’ at Rs.6,04,800/-, instead of Rs.1,22,400/awarded by the Tribunal. **MACA NO. 1485 OF 2010** **10** ## **Loss of amenities** 23. It is seen that the Tribunal has only awarded an amount of Rs.3,000/- towards 'loss of amenities'. Considering the serious nature of injuries and the fact that the appellant has suffered a functional disability of 50%, I award a further amount of Rs.12,000/- under the head 'loss of amenities'. ## **Other Heads of Claims** 24. With respect to the other heads of compensation, I hold that the Tribunal has awarded just and reasonable compensation. 25. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the aforecited 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. **MACA NO. 1485 OF 2010** **11** **==> picture [432 x 408] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 12,000 24,000<br>2. Transport to hospital 2,500 2,500<br>3. Damage to clothing 300 300<br>4. Bystander expenses 3,000 3,000<br>5. Extra nourishment 800 800<br>6. Medical Expenses 61,000 61,000<br>7 Pain and suffering 15,000 15,000<br>8. Loss of amenities 3,000 15,000<br>9. Loss due to disability 1,22,400 6,04,800<br>Total 2,20,000 7,26,400<br>**----- End of picture text -----**<br> 26. Even though the Appellant had only claimed an amount of Rs.2,30,000/- as compensation, I am constrained to award more compensation than what is claimed in the claim petition because of the appellant has sustained serious injuries in the accident and he has **MACA NO. 1485 OF 2010** **12** suffered a functional disability of 50%. Therefore, I have awarded future prospects at 40% following the ratio **in Jagadish, Pappu Deo Yadav and Anthony** (supra). The said course is permissible in view of the law laid down by the Hon’ble Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and in **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.5,06,400/with interest at the rate of 7% per annum from the date of petition till the date of realisation, after deducting the interest for a period of 175 days as ordered by this Court on 15.9.2021 in C.M.Appli. 2 of 2010, and a cost of Rs.20,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellant/petitioner after **MACA NO. 1485 OF 2010** **13** deducting his liability, if any, towards court fee and is in accordance with law. ma/10.11.2021 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**