Madhu v. Vijayan Nair and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939** **MACA.No. 3731 of 2017** ## **AGAINST THE AWARD DATED 18.02.2017 IN OPMV 817/2011 of ADDL. MACT, MAVELIKKARA** ## **APPELLANT/PETITIONER:** ## **----------------------** **MADHU,** **S/O. THANKAPPAN, PUTHUVAL, PURAKKAD, THOTTAPPALLY P.O, ALAPPUZHA.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN** ## **RESPONDENTS/RESPONDENTS:** ## **------------------------** **1. VIJAYAN NAIR, S/O. NARAYANAN NAIR, AMBIYIL KIZHAKKATHIL, EVOOR NORTH,** **CHEPPAD - 690 507.** **2. P. VENUGOPALAN, S/O. PRABHAKARAN PILLAI, POURNAMI, MANJOOR P.O, KOTTAYAM - 686 603.** **3. NIRMAL NAIR,** **MANJADIPADEETTATHIL, CHEPPAD P.O, HARIPPAD - 690 507.** **4. THE NEW INDIA ASSURANCE CO. LTD,** **REPRESENTED BY ITS DIVISIONAL MANAGER, ALAPPUZHA - 688 001.** **R4 BY ADV. SMT.M.HEMALATHA** **BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = M.A.C.A.No.3731 of 2017(B)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 14[th] day of March, 2018_ ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV) No.817 of 2011 of the Additional Motor Accidents Claims Tribunal _(hereinafter referred to as 'the Tribunal')_ , Mavelikkara. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the bodily injuries suffered by him in a road traffic accident. 2. According to appellant, he was a fish vendor, aged 45 years and he was earning `6,000/per month. On 22.05.2011, at about 12.30 pm, while he was travelling in a vehicle bearing No.KL Q 158, the offending vehicle bearing No.KL J 3066, driven by the 1[st] respondent in a rash and negligent manner hit the vehicle, resulting grievous injuries to him ## **M.A.C.A.No.3731 of 2017(B)** ## **-: 2 :-** and the accident happened solely due to the rash and negligent driving of the offending vehicle by the 1[st] respondent and thereby 2[nd] respondent is vicariously liable for the act of the 1[st] respondent and the 3[rd] respondent Insurance Company is liable to indemnify the 2[nd] respondent by paying compensation to him. After considering the rival contentions raised by the Insurance Company, the Tribunal accepted the claim and passed the impugned award, granting an amount of `10,76,051/-, as compensation to the appellant. The inadequacy and correctness of the quantum of compensation determined under the heads 'permanent disability' and 'loss of amenities', are mainly challenged in this appeal. 3. Heard the learned counsel for the appellant and the learned Standing Counsel appearing for the Insurance Company. ## **M.A.C.A.No.3731 of 2017(B)** ## **-: 3 :-** 4. Though, various grounds are raised in this appeal challenging the quantum of compensation granted under different heads, the learned counsel for the appellant mainly focused on the inadequacy of the quantum of amount determined as monthly income and the compensation granted for 'loss of amenities in life' and 'pain and sufferings'. 5. Per contra, the learned Standing Counsel appearing for the insurance company advanced arguments to justify the quantum of monthly income and the compensation for 'loss of amenities in life' and 'pain and sufferings'. 6. In view of the arguments at the Bar, the points to be considered are, whether the Tribunal is justified in fixing the quantum of compensation under the heads 'loss of amenities of life', 'pain and sufferings' and the quantum of amount fixed as ## **M.A.C.A.No.3731 of 2017(B)** ## **-: 4 :-** monthly income. Is the compensation just and fair? 7. It is the case of the appellant that he was a fish vendor at the time of the accident and the said contention stands proved by production of Exts.A11 and A12. It is true that no documentary evidence was produced to prove the exact monthly income of the appellant at the time of accident. Being a fish vendor, it is not possible for him to produce documentary evidence to prove his monthly income. In the absence of documentary evidence, the Tribunal is justified in taking monthly notional income. But, the Tribunal has taken `4,500/- as monthly income. This Court is of the opinion that the Tribunal cannot be justified in taking `4,500/only, as monthly income, in view of the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC ## **M.A.C.A.No.3731 of 2017(B)** ## **-: 5 :-** 236]. In the above said decision, the Supreme Court has held that in the case of an accident occurred in the year 2004, an amount of `3,500/- to `4,500/- can be taken as monthly notional income of the deceased. In the instant case, the accident has occurred in the year 2011. Considering the long passage of time and consequential effect in the economy caused by the inflation, the quantum of monthly income would stand enhanced to `6,000/- per month. 8. That apart, his 'future prospects' of the income also requires to be considered, while assessing the loss of 'permanent disability'. It is not disputed that he is aged 45 years at the time of accident. So, 25% of monthly income has to be added with the monthly income, at the time of accident, for computing the quantum of 'loss of earnings'. The above view is supported by the ## **M.A.C.A.No.3731 of 2017(B)** ## **-: 6 :-** decision of the Supreme Court in _**Rajan v. Soly Sebastian and Another**_ [(2015) 10 SCC 506], wherein 50% enhancement was made for 'future prospects', considering 100% 'permanent disability'. Having regard to the fact that in the instant case, the functional disability is 100% and permanent disability is at 60%, 25% can be taken as 'future prospects'. The monthly income for the purpose of assessing 'permanent disability' is `7,500/-. Further, this Court finds that the Tribunal has went wrong by taking '13' as multiplier of the appellant, who was aged 45 years at the time of accident. According to the decision reported in _**Sarla Verma & Ors. v. Delhi Transport Corp. & Anr.**_ [(2009) 6 SCC 121], the correct multiplier is '14' and not '13'. So, the multiplier applicable to the appellant is '14'. Thus, the appellant is entitled to get an ## **M.A.C.A.No.3731 of 2017(B)** ## **-: 7 :-** amount of `12,60,000/- [7,500 x 12 x 14] under the head 'permanent disability'. The additional compensation payable under this account is `3,47,400/- 9. Coming to the quantum of compensation granted for 'loss of amenities to life', it is seen that `10,000/- was given for the same, this Court is of the view the said amount is too low, particularly, when the appellant was aged 45 only at the time of accident. Consequently, the quantum of compensation under the head 'loss of amenities' would stand enhanced to `50,000/-, considering the grievous nature of the injuries and consequential disablement thereof suffered by him. The additional compensation payable to the appellant under the said account is `40,000/-. 10. This Court is of the view that the amount ## **M.A.C.A.No.3731 of 2017(B)** ## **-: 8 :-** granted under the head 'loss of earnings' is also too low, when considering the fact that he is a fish vendor and it was not possible to go for fish vending, at least for six months. Certainly, he is entitled to get compensation for 'loss of earnings' at least for six months. Consequently, the quantum of compensation under the head 'loss of earnings' would stand enhanced to `36,000/-. The additional compensation under the said head is `22,500/-. Thus, the total compensation payable to the petitioner is `14,85,951/-[10,76,051 + 3,47,400 + 40,000 + 22,500]. It is needless to say, the said amount would carry interest also, as stipulated by the Tribunal. The 4[th] respondent Insurance Company is directed to deposit the entire additional compensation within two months from today and the appellant is allowed to withdraw the entire **M.A.C.A.No.3731 of 2017(B)** ## **-: 9 :-** additional compensation granted by this Court. All other findings of the Tribunal are undisturbed and operative. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL, JUDGE** DST //True copy// P.A. To Judge