Martin Thomas Valummel v. Sebastian, Siby Varghese and The National Insurance Co. Ltd., Oriental Insurance Co. Ltd.

**MACA NO. 2145 OF 2008** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** ## **MACA NO. 2145 OF 2008** **AGAINST THE AWARD IN OP(MV) 798/2006 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL PALA** ## **APPELLANT/PETITIONER:** MARTIN THOMAS VALUMMEL HOUSE, KOCHUTHOVALA, KATTAPPANA, IDUKKI DISTRICT. BY ADVS. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI ## **RESPONDENTS/RESPONDENTS:** 1 SEBASTIAN, S/O. CHACKO, NANDIKATTU HOUSE, PARATHODE POST, EDAKUNNAM VILLAGE. 2 SIBY VARGHESE, ERUMEDAYIL HOUSE, MUKKOTTUTHARA, KOTTAYAM. 3 THE NATIONAL INSURANCE CO. LTD. KOTTAYAM. * (DELETED) (THE RESPONDENT NO.3 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED ON 24.3.2011) *ADDL. RESPONDENT IMPLEADED ADDL. 3 M/S. ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, P.B. NO.166, MATTETHARA BUILDING, M.C.ROAD, BAKER JUNCTION, KOTTAYAM , PIN686 001. **MACA NO. 2145 OF 2008** **2** THE ADDL. RESPONDENT IS IMPLEADED AS THE ADDITIONAL 3RD RESPONDENT IN APPEAL, AS PER ORDER DATED 27/10/2021 IN I.A 1/2021 IN MACA 2145/2008. BY ADV K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2145 OF 2008** **3** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.798/2006 on the file of the Motor Accidents Claims Tribunal, Pala. 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 sustained to him in an accident on 11.3.2006. It was his case that, on the above-said day, while he was riding a motorcycle bearing Reg. No.KL-06/B-2625, a van bearing Reg. No.KL-6B-1524 (van)), driven by the 1st respondent in a negligent manner, hit the motorcycle of the appellant. The appellant fell down and sustained multiple injuries. He was treated as an inpatient in three spells for a period of 17 days in three hospitals. The van was owned by the 2[nd] respondent **MACA NO. 2145 OF 2008** **4** and insured with the 3[rd] respondent. The appellant was an Insurance Agent -cum-Agriculturist and earning a monthly income of Rs.8,000/-. Hence, the appellant claimed a compensation of Rs.6,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The 3[rd] respondent had filed a written statement disputing the age, income and occupation of the appellant. The 3[rd] respondent also contended that the accident occurred due to the negligence of the appellant. Hence the 3[rd] respondent prayed for the dismissal of the claim petition. 5. The appellant had produced and marked Exts.A1 to A20 in evidence. The 2[nd] respondent examined got himself as RW1 and another witness was examined as RW2. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by **MACA NO. 2145 OF 2008** **5** permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,60,070/- with interest and a cost of Rs.3,200/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Mathew John, the learned counsel appearing for the appellant/petitioner and Smt.K.S.Santhi, the learned counsel appearing for the 3rd respondentinsurer. 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. Ext.A6 final report -sheet filed by the Kanjirappally Police in Crime No.113/2006 proves that the accident occurred due to the negligence of the 1[st] respondent. Indisputably, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the van. **MACA NO. 2145 OF 2008** **6** The respondents have not let in any evidence to discredit Ext.A6 final report. The 3[rd] respondent has also 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 2[nd ] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was an Insurance Agent-cum-Agriculturist by profession and was earning a monthly income of Rs.8,000/-. The Tribunal, for the want of materials, fixed notional monthly income of the appellant at Rs.2,000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision **MACA NO. 2145 OF 2008** **7** and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the appellant at Rs.5,500/-. ## **Loss of earnings** 14. The Tribunal found that the appellant was indisposed for a period of six months. I confirm the said finding. In view of the re-fixation of the notional monthly income of the appellant at Rs.5,500/-, I award him an amount of Rs.33,000/- under the head ‘loss of earnings’, instead of Rs.12,000/- awarded by the Tribunal. ## **Disability** 15. The appellant had produced Ext.A8 disability certificate issued by the Medical College Hospital, Kottayam, which substantiates that he has a permanent disability of 7%. I accept Ext.A8 on its face value and hold that the appellant has a functional disability of '7%' ## **Multiplier** 16. The appellant was aged 34 years at the time of **MACA NO. 2145 OF 2008** **8** the accident. 17. In the light of the law laid down in **Sarla Verma** **& Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '16'. ## **Loss due to disability** 18. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.5,500/-, his functional disability at ‘7%’ and the multiplier at '16', I award the appellant an amount of Rs.73,920/- towards ‘loss due to disability’, instead of Rs.16,320/- awarded by the Tribunal. ## **Pain and sufferings and Loss of amenities** 19. The Tribunal has awarded an amount of Rs.20,000/- under the head 'pain and sufferings and Rs.20,000/- under the head 'loss of amenities'. 20. On a consideration of the fact that the appellant was treated as an inpatient for a period of 17 days, that he was indisposed for a period of six months, and that he has **MACA NO. 2145 OF 2008** **9** suffered a functional disability of 7%, I award him a further amount of Rs.10,000/- under the head 'pain and sufferings' and Rs.20,000/- under the head 'loss of amenities' . ## **Other heads of compensation** 21. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore cited 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. 2145 OF 2008** **10** **==> picture [435 x 449] intentionally omitted <==** **----- Start of picture text -----**<br> SI.No Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>rupees) recalculated by<br>this Court<br>1 Loss of earnings 12,000 33,000<br>2. Transport to hospital 5,000 5,000<br>3. Damage to clothing 250 250<br>4. Bystander expenses 4,500 4,500<br>5. Extra nourishment 2,000 2,000<br>6. Medical Expenses 80,000 80,000<br>7 Pain and suffering 20,000 30,000<br>8. Loss of amenities 20,000 40,000<br>9. Loss due to disability 16,320 73,920<br>Total 1,60,070 2,68,670<br>====== ===<br>=======<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.1,08,600/- with interest at the rate of 6% per annum **MACA NO. 2145 OF 2008** **11** from the date of petition till the date of deposit and a cost of Rs.10,000/-. The 3[rd] 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 Tribunal shall disburse the deposited compensation to the appellant/petitioner in accordance with law. ma/28.02.2022 Sd/- **C.S.DIAS, JUDGE**