Narayana Pillai S/O Gopala Pillai v. Binoj P. Paulose; Shanoj S. Velayudhan; The Oriental Insurance Company Ltd.

**MACA NO. 2453 OF 2012** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943 MACA NO. 2453 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1261/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** NARAYANA PILLA S/O.GOPALA PILLAI, VETTATHKOIKKAL HOUSE, KAVIL DESOM, KODAKKARA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENT/S:** 1 BINOJ P.PAULOSE S/O.PAULOSE, PALLIPURATHKARAN HOUSE, MARATHAMPILLY KARA, KODAKARA P.O., PIN-680 684. 2 SHANOJ S/O.VELAYUDHAN, PATTATHUPARAMBIL HOUSE, KOTTANELOOR P.O., 680 672. 3 THE ORIENTAL INSURANCE COMPANY LTD THRISSUR-680 001. BY ADV SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2453 OF 2012** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.1261/2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. 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 that he sustained in an accident on 11.6.2007. It was his case that, on the abovesaid day, while he was driving his motorcycle bearing Reg.No.KL-08Q 2090 along the National Highway-47, when he reached Kodakara Gandhinagar, a Maruti Van bearing Reg. No.KL-8/AB 3848 (van), driven by the 2[nd] respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained serious injuries, including a Type II compound bicondylar fracture left tibia and fracture head of left fibula. He **MACA NO. 2453 OF 2012** **3** was treated as an inpatient at the West Fort Hospital, Thrissur from 11.6.2007 to 27.6.2007. The appellant was working in the Mixing plant of Apollo Typres Ltd, Perambra and was drawing a monthly salary of Rs.17,000/-. The appellant was aged 54 years at the time of the accident. The van was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed an amount of Rs.7,44,915/- from the respondents as compensation, which claim was limited to Rs.3,00,000/-. 3. The respondents 1 and 2 had filed a joint written statement refuting the allegations in the claim petition. They contended that the compensation claimed was excessive. They also stated that the accident occurred due the negligence of the appellant. However, the respondents contended that as the van was insured with the 3[rd] respondent, the 3[rd] respondent is liable to pay the compensation amount. 4. The 3[rd] respondent had filed a written **MACA NO. 2453 OF 2012** **4** statement admitting that the van had a valid insurance coverage. The 3[rd ] respondent disputed the age, income and occupation of the appellant. It was also stated that the claim petition was bad for non-joinder of necessary parties as the owner and insurer of the motorcycle were not made parties. 5. The Manager of the appellant and the Doctor who issued the disability certificate were examined as PWs1 and 2 and Exts.A1 to A8 were marked through them in evidence. The 3[rd] respondent produced the insurance policy, which was marked as Ext.B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,89,015/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and proportionate costs. 7. Aggrieved by the refusal to grant compensation for 'loss due to disability' and dissatisfied with the **MACA NO. 2453 OF 2012** **5** quantum of compensation awarded by the Tribunal under different heads, the petitioner is in appeal. 8. Heard; Sri.P.V.Baby, the learned counsel appearing for the appellant/petitioner and Sri.VPK Panicker, the learned counsel appearing for the 3rd respondent/insurer. 9. The sole 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** 10. Ext.A2 charge-sheet filed by the Kodakara Police in Crime No.244/2007 proves the fact that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the respondents have not let in any contraevidence to discredit Ext.A2 charge-sheet. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. The 3[rd] respondent has not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify **MACA NO. 2453 OF 2012** **6** the liability of the 1[st] respondent arising out of the accident. ## **Disability** 11. The appellant had produced Ext.A7 disability certificate which was proved through PW2. The Doctor has in unequivocal terms stated that the appellant has limitation of flexion of the left knee of 15%, weakness of the left cordyceps of 25% and reduction of the muscle of the left thigh of 20%, and he has difficulty in squatting,climbing stairs, walking and standing. Accordingly, PW2 has fixed the permanent disability of the appellant at 13% as per the Mc Bride's Scale and certified that the appellant has a loss of earning capacity of 35%. 12. The Tribunal, for the reason that the appellant was permanently employed and did not suffer any reduction in income, declined to award any amount as compensation for permanent disability. Instead, the Tribunal, based on Ext.A5 certificate, awarded the **MACA NO. 2453 OF 2012** **7** appellant an amount of Rs.1,41,914.98/- towards loss of earning. The course adopted by the Tribunal is erroneous and wrong in view of the law laid down by the Hon'ble Supreme Court in **K.R.Madhusoodanan v. Administrator** [(2011) 4 SCC 689] and **Puttamma and others v. K.L.Narayana Reddy and another** [ (2014 (1) KLT 738] wherein, the Hon'ble Supreme Court has held that the Tribunals/Courts shall follow the split multiplier method only for cogent reasons. 13. The Tribunal lost sight of the fact that the appellant was aged 54 years at the time of the accident. He would have superannuated within a period of six years. Hence, even though he did not have reduction in income for a period of six years, he would have loss of income post-retirement. Hence the Tribunal ought to have awarded compensation for loss due to disability, after the appellant attained the age of superannuation, based on the disability certified in Ext.A7. **MACA NO. 2453 OF 2012** **8** ## **Income and Multiplier** 14. On a consideration of the fact that the appellant would have to retire at the age of 60, i.e, in 2013, I fix the notional income of the appellant at Rs.9,000/- following the yardstick in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236]. As the appellant would have superannuated at the age of 60, the relevant multiplier to be adopted is '9', as laid down in **Sarla Verma & Othrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121]. 15. Based on the oral testimony of PW2 and Ext.A7 certificate that the appellant has a permanent disability of 13%. I fix the functional disability of the appellant following the ratio in **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] at 13%. ## **Loss due to Disability** 16. Taking into account the above-mentioned factors, namely, the notional monthly income of the appellant at Rs.9,000/-, I award the appellant an amount **MACA NO. 2453 OF 2012** **9** of Rs.1,26,360/- as compensation for 'loss due to disability.’ ## **Loss of earnings** 17. The Tribunal has rightly accepted Ext.A5 certificate issued by the employer of the appellant and proved through PW1 and awarded the appellant an amount of Rs.1,41,915/- towards loss of earnings. I confirm the said finding. ## **Bystander expenses and Extra nourishment** 18. It is on record, as evident from Ext.A4 discharge summary, that the appellant was treated as an inpatient for a period of 46 days. The Tribunal has awarded only an amount of Rs.4,600/- towards 'bystander expenses', and Rs.2,000/- towards 'extra nourishment,’ which, according to me, is too meagre. 19. Taking into account the fact that the accident occurred in the year 2007, I hold that the appellant/petitioner is entitled to Rs.300/- per day for a period of 46 days towards 'bystander expenses', which **MACA NO. 2453 OF 2012** **10** works out to Rs.13,800/- and Rs.150/- per day for a period of 46 days towards 'extra-nourishment' which comes to Rs.6,900/-. ## **Pain and suffering and loss of amenities** 20. Although the appellant had claimed an amount of Rs.50,000/- towards pain and suffering, the Tribunal has awarded only an amount of Rs.15,000/- which again is on the lower side. 21. Considering the nature of the injuries sustained by the appellant, that he was treated as an inpatient for a period of 46 days, that he was indisposed for a period of 202 days, and that he has suffered a functional disability of 13%, I hold that the appellant is entitled to a further amount of Rs.10,000/- under the head ‘pain and suffering’ and Rs.10,000/- under the head ‘loss of amenities’ . ## **Other heads of compensation** 22. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just **MACA NO. 2453 OF 2012** **11** compensation. 23. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the aforecited 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: **==> picture [458 x 369] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded Amounts<br>by the Tribunal modified and<br>.No (in rupees) recalculated by<br>this Court<br>1 Loss of earnings 1,41,915 1,41,915<br>2. Transport to hospital 500 500<br>3. Bystander expenses 4,600 13,800<br>4. Extra nourishment 2,000 6,900<br>5 Pain and suffering 15,000 25,000<br>6. Loss of amenities 25000 35,000<br>---<br>7. Loss due to disability 1,26,360<br>Total 1,89,015 3,49,475<br>=========== =======<br>**----- End of picture text -----**<br> **MACA NO. 2453 OF 2012** **12** In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs1,60,460/with interest at the rate of 7.5% per annum on the enhanced compensation from the date of petition till the date of deposit and proportionate costs. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of two months 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 amount to the appellant/petitioner in accordance with law. ma/17.12.2021 Sd/- **C.S.DIAS, JUDGE**