M.S. Sunil v. Antony, M.M. Pratheep and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **MACA NO. 1715 OF 2009** **AGAINST THE AWARD DATED 15.07.2008 IN OPMV 3121/2000 OF** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** M.S.SUNIL, S/O SISUPALAN MANIYANTHARAPARAMBU HOUSE,, WARD NO.II, MARADU P.O., PUNITHURA VILLAGE. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** - 1 ANTONY,PARAYANTHARA HOUSE, MARADU P.O. - 2 M.M. PRATHEEP S/O. MANI MARASSERITHUNID HOUSE, NEAR, INJAKKAL TEMPLE, MARADU P.O., - 3 UNITED INDIA INSURANCE CO. LTD. LAYAM ROAD, TRIPUNITHURA. BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.1715 OF 2009 2** ## **JUDGMENT** **Dated this the 23[rd] day of March, 2022** The appellant was the petitioner in O.P (MV) No.3121/2000 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 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 02.06.2000. It was his case that, on the above said date, while he was riding a motorcycle bearing registration No. KCF 4684, with a pillion rider, along the Petta-Gandhi Square road, an autorickshaw bearing registration No. KL-5/2171, driven by the second respondent in a negligent manner, hit the motorcycle. The appellant fell down and sustained multiple injuries, ## **MACA NO.1715 OF 2009 3** including a head injury, depressed fracture of right fronto parietal bone, fracture roof of right orbit and an incised wound on the right temporal region. He was treated as an inpatient for a period of 121 days at the R.C.M.Hospital, Tripunithura and the Medical Trust Hospital, Ernakulam. The appellant was 27 years of age at the time of accident. He was a mason by profession and was earning a monthly income of Rs.3000/-. The autorickshaw was owned by the first respondent and insured with the third respondent. Hence, the appellant had claimed a compensation of Rs.6,95,000/- from the respondents, which claim was limited to Rs.5,00,000/-. 3. The pillion rider, who also sustained injuries in the same accident, had filed O.P.(M.V) No.792/2001 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1 and 2 did not contest both the proceedings. ## **MACA NO.1715 OF 2009 4** 5. The third respondent had filed separate written statements in both the claim petitions admitting that the autorickshaw had a valid insurance policy. However, it was contended that the second respondent did not hold a valid badge to drive the autorickshaw. Hence, the first respondent had violated the insurance policy conditions. The third respondent also disputed the age, income and occupation of the appellant. 6. The Tribunal, consolidated and jointly tried the two claim petitions. 7. The appellant had examined his Doctor and father as Pws1 and 2 and marked Exhibits A1 to A18 in evidence. The third respondent had produced a wound certificate, which was marked as Exhibit B1. 8. The Tribunal, after analyzing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.4,05,927/- with interest at the rate of 7.5% ## **MACA NO.1715 OF 2009 5** per annum from the date of petition till the date of realisation. But, the third respondent was permitted to recover the compensation amount from the first respondent. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.A.N.Santhosh, the learned counsel appearing for the appellant/petitioner and Sri. Thomas Mathew Nellimmottil, the learned counsel appearing for the third respondent-insurer. 11. The point that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Exhibit A4 charge sheet laid by the City Traffic Police in Crime No.1212/2000 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the **MACA NO.1715 OF 2009 6** autorickshaw. The respondents have not let in any evidence to discredit Exhibit A4 charge sheet. Even though the third respondent – insurer had contended that the second respondent did not hold a valid driving licence, the respondents 1 and 2 had not produced the licence of the second respondent. Moreover, the respondents 1 and 2 have also not challenged the award passed by the Tribunal, permitting the third respondent to recover the compensation amount from the first respondent. Thus, I confirm the finding of the Tribunal, that the first respondent had violated the insurance policy conditions. Accordingly, the third respondent - insurer is permitted to pay the enhanced compensation to be determined by this Court and recover the same from the first respondent. ## **Income** 13. The appellant had claimed that he was a mason by profession and was earning a monthly income of Rs.3000/-. The appellant had not produced any material ## **MACA NO.1715 OF 2009 7** to substantiate his income. Accordingly, the Tribunal, fixed the notional monthly income of the appellant at Rs.1500/-. 14. In **Chameli Devi and others v. Jivrail Mian and others** [(2019) KHC 5352], the Hon’ble Supreme Court has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5000/-. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2000, I re-fix the notional monthly income of the appellant at Rs.3000/-, as claimed in the claim petition. ## **Disability** 16. The appellant had examined PW1 – his Doctor, who had given him ayurvedic treatment and PW2 - his father to prove that he is suffering from permanent disability. The appellant had also produced Exhibit A14 disability certificate issued by a seven member Medical Board attached to the General Hospital, Ernakulam, **MACA NO.1715 OF 2009 8** which proves that the appellant has a neurological disability of 42%, because he has slurring of speech, moderate impairment of emotional behaviour, Grade III weakness and instability of both lower limbs and bilateral sensory neural deafness more on the left ear. The Tribunal had accepted Exhibit A14 and fixed the permanent disability of the appellant at 42%. 17. 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 injury claim is the functional disability of the injured-claimant. 18. In the instant case, the appellant was 27 years old at the time of the accident. Going by the nature of disability suffered by the appellant in the accident, I am of the firm view that the appellant’s functional disability has to be fixed at 50%. 19. In **V. Mekala v. M. Malathi and another** [2014(11) SCC 178], **Jagdish v. Mohan & others** [(2018) 4 SCC 571] and **Pappu Deo Yadav v. Naresh** **MACA NO.1715 OF 2009 9** **Kumar & others** [AIR 2020 SC 4424], the Hon’ble Supreme Court has emphatically held that in the case of serious injury, the injured victim is also entitled to future prospects. 20. In the light of functional disability suffered by the appellant, that he was only 27 years at the time of accident and the principles laid down in the afore-cited decisions, I hold that the appellant is also entitled to future prospects. 21. The appellant was 27 years at the time of accident. In the light of the law laid down in **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (16) SCC 680], I hold that the appellant/petitioner is entitled to future prospects at 40%. ## **Multiplier** 22. The appellant was aged 27 years at the time of the accident. Following the principles laid down in **Sarla Verma and Others v. Delhi Transport Corporation** ## **MACA NO.1715 OF 2009 10** **and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘17’. ## **Loss of earning capacity** 23. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.3000/-, his functional disability at 50%, the multiplier at ‘17’ and the future prospects at 40%, I award the appellant an amount of Rs.4,28,400/- towards ‘loss of earning capacity’. ## **Loss of earnings** 24. The Tribunal has found that the appellant was indisposed for a period of six months. I confirm the said finding. 25. In view of the re-fixation of the notional monthly income of the appellant at Rs.3000/-, I award him an amount of Rs.18,000/-, instead of Rs. 9000/- awarded by the Tribunal towards ‘loss of earnings’. ## **MACA NO.1715 OF 2009 11** 26. With respect to the other heads of compensation awarded by the Tribunal, I find the same to be reasonable and just. 27. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, 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 by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|9000|18000| |2|Medical<br>expenses|164407|164407| |3|Transportation<br>and damage to<br>clothing|2000|2000| |4|By-stander<br>expenses|12000|12000| |5|Extra<br>nourishment|5000|5000| |6|Pain and|40000|40000| ## **MACA NO.1715 OF 2009 12** ||sufferings||| |---|---|---|---| |7|Loss of amenities|25000|25000| |8|Loss of earning<br>capacity|128520|428400| |9|For ayurvedic<br>treatment|10000|10000| |10|For future<br>treatment|10000|10000| ||Total|405927|7,14,807| 28. Even though the appellant had claimed only an amount of Rs.5,00,000/-, I have awarded him more compensation than what is claimed in the claim petition by awarding him future prospects and fixing his functional disability following the principles in **Raj Kumar** (supra). The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** , In the result, the appeal is allowed, by enhancing the compensation by an amount of **Rs.3,08,880/-** with **MACA NO.1715 OF 2009 13** interest at the rate of 6% per annum from the date of petition till the date of deposit, and proportionate cost. The third respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. As I have already found that the first respondent had violated the insurance policy conditions, the third respondent is permitted to pay the compensation amount and recover it from the first respondent. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/23/03/2022