Naveen T.K. v. Jyothis P., Bijily Basheer and The Royal Sundaran Alliance Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943** ## **MACA NO. 2155 OF 2011** **AGAINST THE AWARD DATED 14.07.2011 IN O.P.(MV) NO.417/2010 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE. APPELLANT:** **NAVEEN T.K., AGED 19 YEARS, S/O.KRISHNAN, RESIDING AT THAYYIL HOUSE, P.O.KARUVANCHAL, KANNUR.** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN** ## **RESPONDENTS:** **1 JYOTHIS P., AGE AND FATHER'S NAME NOT KNOWN, POYILIL HOUSE, KODAL, NADAKKAVU P.O., PANTHEERANKAVU, KOZHIKODE. 2 BIJILY BASHEER, S/O.BASHEER, RESIDING AT VELLAMTHUDUYIL HOUSE, 6/3, P.O.FEROKE, KOZHIKODE.** - **3 THE ROYAL SUNDARAN ALLIANCE INSURANCE CO. LTD., SUNDARAN TOWERS 45 & 46, WHITE LINES ROAD, CHENNAI,KOZHIKODE.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2155 OF 2011** -2- **C.S. DIAS, J. ----------------------------------------------------MACA No.2155 of 2011 ----------------------------------------------------Dated this the 20[th] day of January, 2022** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.471/2010 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed a 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 23.02.2009. It was his case that, on the aforesaid date, while he was riding a motorcycle bearing registration No.KL-60/A-1014 through the Ramanattukara-Thondayad Byepass, a tipper lorry bearing registration No.KL-11/Y-7535 (lorry), driven by the second respondent in a rash and negligent manner, hit the motorcycle of the appellant. The first **MACA NO. 2155 OF 2011** -3- respondent was the owner and the third respondent was the insurer of the lorry. The petitioner sustained multiple injuries and was treated as inpatient at the Baby Memorial Hospital, Kozhikode for a period of 59 days in 8 spells. The petitioner suffered a supracondylar intercondylar fracture of the right femur, open comminuted fracture of the 5[th] metatarsal right foot and open fracture of the lateral melleolus left. The petitioner had suffered a permanent disability. The petitioner was a BBA student and also a Computer Operator on part-time basis. He was earning a monthly income of Rs.4,500/-. Hence, the petitioner claimed a compensation of Rs.5,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and was set ex-parte. 4. The third respondent had filed a written statement admitting that the lorry had a valid insurance policy. However, the third respondent **MACA NO. 2155 OF 2011** -4- contended that the appellant was guilty for contributory negligence. The third respondent also disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked Exts.A1 to A4 series in evidence. The disability certificate issued by the Medical Board was marked as Ext.C1. 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 third respondent an amount of Rs.3,20,790/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 8. Heard; Sri. V.S. Chandrasekharan, the learned counsel appearing for the appellant/petitioner and Sri. **MACA NO. 2155 OF 2011** -5- P. Jacob Mathew, the learned counsel appearing for the third respondent insurer. 9. The point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext.A1 FIR and the uncontroverted averments in the claim petition substantiate 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 lorry. The respondents did not let in evidence to controvert the assertions in the claim petition. Similarly, the third respondent has not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. **MACA NO. 2155 OF 2011** -6- ## **Income** 11. The appellant had claimed that he was a BBA student and working as a Computer Operator on part-time basis, and that he was earning a monthly income of Rs.4,500/-. For want of material, the Tribunal has fixed the 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 and considering the fact that the accident occurred in the year 2009, I re-fix the notional monthly income of the appellant at Rs.4,500/-, as claimed in the claim petition. ## **Loss of earnings** 14. It is proved and established that the appellant **MACA NO. 2155 OF 2011** -7- had sustained three fractures and he was treated as an inpatient for a period of 59 days in 8 spells. Therefore, I hold that he was indisposed for a period of four months. In view of the re-fixation of the notional monthly income of the appellant at Rs.4,500/-, I award him an amount of Rs.18,000/- towards 'loss of earnings'. ## **Disability** 15. The Tribunal had referred the appellant to the Medical Board attached to the Medical College Hospital, Kozhikode. The Medical Board has fixed the functional disability of the appellant at 17%. The Tribunal accepted Ext.C1 on its face value and fixed the permanent disability of the appellant at 17%. I confirm the said finding. Similarly, the Tribunal has adopted the multiplier of '18', which is correct. 16. In view of the re-fixation of the notional monthly income of the appellant at Rs.4,500/-, I **MACA NO. 2155 OF 2011** -8- award him an amount of Rs.1,65,240/- towards 'loss due to disability', instead of Rs.73,440/- awarded by the Tribunal. ## **- Bystander expenses and Extra nourishment** 17. It is proved and established that the appellant was treated as inpatient for a period of 59 days in 8 spells. The Tribunal has awarded him an amount of Rs.8,850/- towards 'bystander expenses', i.e., Rs.150/per day for a period of 59 days and Rs.2,000/towards 'extra-nourishment', which according to me, is abysmally low. 18. On a consideration of the fact that the accident occurred in the year 2009, I award the appellant an amount of Rs.400/- per day for a period of 59 days towards 'bystander expenses', which works out to Rs.23,600/- and Rs.200/- per day for a period of 59 days towards 'extra-nourishment', which comes to Rs.11,800/-. **MACA NO. 2155 OF 2011** -9- ## **Pain and suffering and loss of amenities** 19. The Tribunal has awarded the appellant an amount of Rs.25,000/- under the head 'pain and suffering' and Rs.8,000/- under the head 'loss of amenities'. 20. On a consideration of the serious injuries suffered by the appellant, the fact that he was treated as inpatient for a period of 59 days, that he was indisposed for a period of four months and that he has suffered a functional disability of 17%, I award him a further amount of Rs.15,000/- under the head 'pain and suffering' and Rs.17,000/- under the head 'loss of amenities'. 21. With respect to the compensation awarded under the heads 'transportation expenses', 'damage to clothing' and 'medical expenses', I find the same to be reasonable and just. 22. On an overall re-appreciation of the pleadings **MACA NO. 2155 OF 2011** -10- and materials on record and the law referred to in the aforecited decisions, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and recalculated above and given under the table for easy reference. |**Sl.**<br>**No**|**Head of claim**|**Amount awarded**<br>**by**<br>**the**<br>**Tribunal(Rs.)**|**Amount**<br>**modified and**<br>**recalculated by**<br>**this**<br>**Court**<br>**(Rs.)**| |---|---|---|---| |1.|Loss of earnings|-|18,000/-| |2.|Transportation expenses|3,000/-|3,000/-| |3.|Damage to clothing|500/-|500/-| |4.|Bystander expenses|8,850/-|23,600/-| |5.|Extra nourishment|2,000/-|11,800/-| |6.|Medical expenses|2,00,000/-|2,00,000/-| |7|Pain and sufferings|25,000/-|40,000/-| |8|Loss of amenities|8,000/-|25,000/-| |8.|Loss due to disability|73,440/-|1,65,240/-| ||**Total**|**3,20,790/-**|**4,87,140/-**| In the result, the appeal is allowed in part, by **MACA NO. 2155 OF 2011** -11- enhancing the compensation by a further amount of Rs.1,66,350/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, 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 sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant in accordance with law. Sd/- **C.S. DIAS JUDGE** bpr