MANOJ.K.S v. SASI S/O VELAYUDHAN (deleted) and THE NEW INDIA ASSURANCE CO. LTD

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** **MACA NO. 2069 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.3775/2003 OF SMOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **MANOJ.K.S, S/O.SREENIVASAN, KANDAMBULLY HOUSE, NJAMANGHATTU DESOM,, VALIATHOOR VILLAGE, KUNNAMKULAM, VIA THRISSUR.** **BY ADV SRI.T.C.SURESH MENON** ## **RESPONDENTS:** ***1 SASI S/O VELAYUDHAN KANDARASSERY HOUSE, THAIKAD, GURUVAYOOR PO,, THRISSUR DISTRICT. (DELETED)** **R1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 22.03.2021)** **2 THE NEW INDIA ASSURANCE CO.LTD ANUGRAHA BUILDING, WADAKKANCHERY ROAD,, KUNNAMKULAM, THRISSUR DISTRICT.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** ## **OTHER PRESENT:** ## **GOVERNMENT PLEADER SRI.C K PRASAD** . **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No. 2069 of 2010_ _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 2069 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.3775 of 2003 on the file of the Motor Accidents Claims, Thrissur. The respondents in the appeal were the respondents before the Tribunal. Pursuant to the orders of this Court on 22.03.2021 the 1[st] respondent has been deleted from the party array since the 2[nd] respondent has admitted the insurance policy. 2. The concise facts in the claim petition, relevant for the determination of the appeal, are: on 13.04.2001, while the appellant was riding a motorcycle bearing registration KL 11/C 2879 through Guruvayur Temple Inner road, an autorickshaw bearing registration No.KL 08/B 2198 (offending vehicle) driven by the 1[st] respondent hit the _MACA No. 2069 of 2010_ _3_ motorcycle of the appellant. He sustained serious injuries and was taken to Tahani Hospital, Guruvayur and, thereafter, to the Royal Hospital, Kunnamkulam, where he was treated as an in-patient for a period of seven days. The appellant was a Karate teacher by profession and a law graduate. He was earning a monthly income of Rs.7,500/-. The accident occurred solely due to the negligence on the part of the 1[st] respondent who was the owner and driver of the offending vehicle . The offending vehicle was insured with the 2[nd] respondent. Hence, the appellant claimed an amount of Rs.2.00,000/- as compensation from the the respondent. 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. 4. The 2[nd] respondent filed a written statement denying the assertions in the claim petition. However, _MACA No. 2069 of 2010_ _4_ it was admitted that the offending vehicle had a valid insurance policy as on the date of accident. It was also contended that the amount of compensation claimed under different heads was excessive. 5. The appellant marked Exts.A1 to A13 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 appellant to realise an amount of Rs.65,200/- with interest at the rate of 8% per annum from the date of petition till the date of realization along with proportionate costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner/appellant is in appeal. 8. Heard the learned counsel for the _MACA No. 2069 of 2010_ _5_ appellant/petitioner and the learned counsel appearing for the 2[nd] respondent-insurance company. 9. The sole question that emerges for consideration in the 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 non-violation of the principle of equitability. _MACA No. 2069 of 2010_ _6_ 11. This Court by its order dated 17.01.2020 had directed the appellant to be subjected to a medical examination by the Medical Board of the Government Medical College Hospital, Thrissur. 12. Pursuant to the direction of this Court, the disability of the appellant was assessed by a duly constituted Medical Board, as per certificate dated 29.01.2020. The whole-body disability of the appellant has been assessed at 9%. The said certificate is marked in evidence d as Ext.X1. 13. Ext.A3 final report filed by the Guruvayur police after investigation substantiates that the accident occurred solely on account of the negligence on the part of the 1[st] respondent. Admittedly, the 2[nd] respondent is the insurer of the offending vehicle and, therefore, the 2[nd] respondent is liable to indemnify the 1[st] respondent of the liability. _MACA No. 2069 of 2010_ _7_ 14. The appellant had claimed that he was a Karate teacher by profession, and is a graduate in law as evidenced by Ext.A11 and A12 certificates. The appellant had claimed that he was getting an amount of Rs.7,500/- per month. However, the Tribunal fixed the notional income of the appellant, for the want of materials, at Rs.2,500/- per month. 15. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 16. Following the parameters laid down in the afore-cited decisions and considering the fact that the appellant was a law graduate and a Karate teacher by profession, I am of the firm opinion that _MACA No. 2069 of 2010_ _8_ the appellant's notional income can safely be fixed at Rs.3,500/- per month. Hence, I re-fix the appellant's notional income at Rs.3,500/- per month. ## **Loss of earnings** 17. In view of the re-fixation of the notional income of the appellant and the fact that he was incapacitated for a period of three months, I re-fix compensation under the head 'loss of earnings' at Rs.10,500/- instead of Rs.7,500/- awarded by the Tribunal. ## **Loss of disability** 18. The Tribunal had fixed the disability of the appellant at 4%. In view of Ext.X1 certificate issued by the Medical Board wherein, the appellant's disability has been assessed at 9%, I re-fix the compensation under the head 'loss due to disability' as Rs.52,920/-, instead of 16,800/- awarded by the _MACA No. 2069 of 2010_ _9_ ## Tribunal. ## **Loss of amenities and enjoyment of life** 19. The appellant had claimed an amount of Rs.20,000/- as compensation for 'loss of amenities'. However, the Tribunal had not awarded any amount under the said head. Admittedly, the appellant has sustained injuries and was hospitalised for a period of seven days. He has been certified to be having a permanent disability of 9%. Considering these aspects, I fix the compensation under the head 'loss of amenities' at Rs.7,500/- per month. ## **Other heads of claim** 20. With respect to the other heads of compensation, it is seen that the Tribunal has awarded reasonable and just compensation. 21. On an overall re-appreciation of the pleadings, materials on record and the law laid down _MACA No. 2069 of 2010_ _10_ in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|7,500/-|10,500/-| |2|Transport|1,000/-|1,000/-| |3|Damages to clothing|500/-|500/-| |4|Bye-stander expenses|2,000/-|2,000/-| |5|Expenses for extra nourishment|2,000/-|2,000/-| |6|Medical expenses|17,397/-|17,397/-| |7|Compensation for pain and<br>sufferings|18,000/-|18,000/-| |8|Compensation for loss of<br>amenities|nil|7,500/-| |9|Loss due to disability|16,800/-|52,920/-| |||65,197/-|1,11,817/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.46,620/- (Rupees forty six thousand six hundred and twenty only) with interest at the rate of 8% per _11_ _MACA No. 2069 of 2010_ annum on the enhanced compensation, from the date of petition till the date of deposit along with proportionate costs. The 2[nd] respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall release the enhanced compensation amount to the appellant, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 05.07.2021**