M.M. Sajeev v M/S R.K.R.Transport, R. Chinnu So. Ramaswamy Gounder and Royal Sundaram Alliance Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943** ## **MACA NO. 1226 OF 2009** **AGAINST THE AWARD DATED 29.05.2008 IN OPMV 694/2004 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI** ## **APPELLANT/PETITIONER:** M.M.SAJEEV, AGED 31 YEARS S/O.THOMAS MATHEW, MUTHUPLACKAL HOUSE, NO.449, WARD NO.V., SHENGULAM, VELLATHOOVAL,, REPRESENTED BY HIS NEXT FRIEND AND, FATHER THOMAS MATHEW, MUTHUPLACKAL,, RESIDING AT DO. DO. BY ADV SRI.C.K.VIDYASAGAR ## **RESPONDENTS/RESPONDENTS:** 1 M/S.R.K.R.TRANSPORT NO.25/C/5 C.K.K.NAGAR, GOBI POST & TALUK,, ERODE DISTRICT, TAMIL NADU. 2 R.CHINNU SO.RAMASWAMY GOUNDER 3,KUPPAMMAL LAYOUT, MODACHUR ROAD,, GOBI POST, ERODE DISTRICT,, TAMIL NADU. 3 ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD 46, WHITES ROAD, CHENNAI-600 014. BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1226 OF 2009 2** ## **Dated this the 11[th] day of November, 2021. JUDGMENT** The appellant was the petitioner in OP(MV) No.694/2004 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. 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, through his next friend and father, claiming compensation on account of the injuries that he sustained in an accident on 10.07.2004. It was his case that, on the aforesaid date, while he was riding a motorcycle bearing registration No. KL R 4409 from Ponmudybhagaom to Kallarkuttybhagam, when he reached the Vellathooval town, a jeep bearing registration No. KL 4/8915 (jeep) was negligently parked on the eastern side of the road. As the appellant was **MACA NO. 1226 OF 2009 3** the side of the a passing by jeep, lorry bearing registration No. TN 36 D 9699(lorry) coming from the opposite direction, driven by the 2[nd] respondent in a rash and negligent manner, hit the appellant’s motorcycle. The appellant fell on the road and sustained very serious injuries including an head injury, fracture of the lateral wall, fracture of the right orbit, fracture of the right greater wing of the sphenoid, fracture of right zygoma, fracture of the frontal and temporal bone with extradural haematoma. The appellant was treated at the casualty at the Morning Star Medical Centre, Adimaly and, thereafter, at the Mar Baselios Medical Mission Hospital, Kothamangalam for the period from 10.07.2004 to 03.08.2004 i.e. 24 days. A surgery was conducted and the haematoma was evacuated. The appellant remained unconscious for three weeks. Though he regained consciousness, he developed acute psychosis. The lorry was owned by the 1[st] respondent and insured with the 3[rd] ## **MACA NO. 1226 OF 2009 4** respondent. The appellant was a driver by profession and earning a monthly income of Rs.8000/-. Hence, the appellant claimed an amount of Rs.12,25,000/- from the respondents, which was limited to Rs.5,00,000/-. 3. In the same incident, a person named Rajesh also sustained injuries. He filed O.P.(M.V) No.688/2004 before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceedings. 5. The 3[rd] respondent had filed a written statement admitting that the lorry had a valid insurance coverage. It was contended that the compensation claimed was excessive. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions examined Pws 1 to 3 and marked Exhibits A1 to A24 in evidence. The respondents produced and marked ## **MACA NO. 1226 OF 2009 5** Exhibits B1 and R1 in evidence. 8. The Tribunal, by its common award, allowed the captioned claim petition, by permitting the appellant to realise from the 3[rd] respondent an amount of Rs.2,83,000/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.P.Chandy Joseph, the learned counsel appearing for the appellant/petitioner and Sri.P.Jacob Mathew, the learned counsel appearing for the third respondent/insurer. 11. 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** 12. Exhibit A4 final report filed by the Vellathooval police in Crime No.116/2004 proves that the accident occurred due to the negligence of the 2[nd] respondent/ **MACA NO. 1226 OF 2009 6** driver of the lorry. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. In fact, the petitioner in O.P.(M.V.) No.688/2004 had assailed the quantum of compensation awarded by the Tribunal by the common award before this Court in MACA No.1272/2009. This Court by judgment dated 13.02.2019 had allowed the appeal after holding that it was the 2[nd] respondent who was negligent in causing the accident and directed the 3[rd] respondent to pay the enhanced compensation. The findings in MACA No.1272/2009, operates as res-judicata against the 3[rd] respondent, and therefore, I follow the findings of this Court in the aforementioned appeal. Hence, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 13. The appellant had averred in the claim petition that he was aged 26 years and was a driver by profession. ## **MACA NO. 1226 OF 2009 7** He claimed that he was earning a monthly income of Rs.8000/-. However, the Tribunal for the want of material, fixed the notional monthly income of the appellant at Rs.3000/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 15. Following the yardstick in the afore-cited decision and taking into account that the accident occurred in the year 2004, I hold that the appellant’s monthly notional income can safely be fixed at Rs.4500/- ## **Loss of earnings** 16. Exhibit A15 discharge summary issued by the Hospital, where the appellant was treated, establishes that he had sustained serious and major injuries including an head injury, fracture of the lateral wall, ## **MACA NO. 1226 OF 2009 8** fracture of the right orbit, fracture of the right greater wing of the sphenoid,fracture of right zygoma, fracture of the frontal and temporal bone, left frontal extradural haematoma. He was treated as an inpatient for the period from 10.07.2004 to 03.08.2004 and was in a comatose stage for a period of three weeks. Although he regained consciousness, he got affected with acute psychosis and violence. He was referred to the Psychiatric Department of the Hospital. The Professor of Neurology, Medical College Hospital, Thiruvananthapuram, by Exhibit A23, has found that the appellant has 40% permanent disability. In the above factual matrix, I hold that the appellant was indisposed for a period of six months. 17. In view of the re-fixation of the monthly notional income of the appellant at Rs.4500/-, I re-fix the compensation for ‘loss of earnings’ at Rs.27,000/-, instead of Rs.13,500/- awarded by the Tribunal. ## **MACA NO. 1226 OF 2009 9** ## **- By stander expenses** 18. It is proved by Exhibit A15 discharge summary that the appellant was treated as an inpatient for a period of 24 days. The Tribunal has awarded an amount of Rs.4000/- as by-stander expenses, which according to me is on the lower side. 19. Considering the fact that the accident occurred in the year 2004, I award an amount of Rs.250/- per day for a period of 24 days, i.e. an amount of Rs.6000/- ## **Disability** 20. As already discussed under the head loss of earnings, the appellant had sustained serious and major injuries as reflected in Exhibit A12 wound certificate, Exhibit A15 discharge summary and Exhibit A23 disability certificate. The Doctor, who issued Exhibit A23 has categorically stated that in view of the injuries sustained to left frontal and temporal bone, the appellant has dis-controlled behaviour and he cannot have a ## **MACA NO. 1226 OF 2009 10** complete recovery from his present state of mind. Further, it is observed that the appellant will not be in a position to make a living and needs constant care and support. The Doctor has certified the appellant’s permanent disability at 40%. 21. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable 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. 22. Taking note of the opinion of the Doctor in Exhibit A23 disability certificate, and the serious and major injuries sustained by the appellant, as reflected in Exhibit A15 discharge summary, I hold that the appellant has a functional disability of 40%. ## **Multiplier** 23. The appellant was 26 years at the time of the accident. Following the ratio in **Sarla Verma and Others v. Delhi Transport Corporation and** ## **MACA NO. 1226 OF 2009 11** **another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘17’. ## **Loss due to disability** 24. Taking into account the above mentioned factors, namely, the monthly notional income of the appellant at Rs.4500/-, his functional disability at 40% and the multiplier at ‘17’, I award the appellant compensation for loss due to disability at Rs.3,67,200/-, instead of Rs.1,72,800/- awarded by the Tribunal. ## **Loss of amenities** 25. Even though the appellant had claimed compensation for loss of amenities, the Tribunal has not awarded any amount under the said head. 26. On a consideration of the very serious injuries sustained by the appellant, as evidenced by Exhibit A15 and Exhibit A23 certificates, that he has a functional disability of 40%, that he was indisposed for a period of six months and that he was treated as inpatient for a ## **MACA NO. 1226 OF 2009 12** period of 24 days, I hold that he is entitled for an amount of Rs.40,000/- as compensation for ‘loss of amenities’. 27. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the pleadings and material 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. |Sl.No|Head of claim|Amount<br>awarded<br>by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|13500|27000| |2|Transportation<br>expenses|5400|5400| |3|Extra nourishment|3500|3500| ## **MACA NO. 1226 OF 2009 13** |4|By-stander<br>expenses|4000|6000| |---|---|---|---| |5|Medical expenses|53800|53800| |6|Pain and sufferings|30000|30000| |7|Loss of amenities|0|40000| |8|Loss<br>due<br>to<br>disability|172800|367200| ||**Total**|**2,83,000**|**5,32900**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.2,49,900/- with interest at the rate of 7.5 % per annum from the date of petition till the date of deposit, after deducting interest for a period of 209 days i.e., the period of delay in filing the appeal and as ordered by this Court on 14.09.2021 in C.M.Application No.1/2009, and a cost of Rs.15,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from today. Immediately on **MACA NO. 1226 OF 2009 14** the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellant, through his duly appointed next friend, if needed, and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm11/11/2021