N.K Manojan v. Sindhu and S. Bharath Anand and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **SATURDAY, THE 27[TH] DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA, 1943** ## **MACA NO. 4181 OF 2018** **AGAINST THE AWARD DATED 19.7.2018 PASSED IN OP(MV)NO. 449/2016 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA** ## **APPELLANT/PETITIONER:** N.K MANOJAN, AGED 44 YEARS, S/O. KUNHIKRISHNAN NAIR, NEETHUVAYALKUNI HOUSE, KURUVANGAD P.O., QUILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673620. BY ADVS. ABU MATHEW AJU MATHEW ## **RESPONDENTS/RESPONDENTS:** 1 SINDHU,AGED 52 YEARS, W/O. BHARATHAN, THOTTUMUKHATH HOUSE, GURUKULAM, QUILANDY P.O., KOZHIKODE DISTRICT, PIN - 673305. 2 S. BHARATH ANAND, AGED 30 YEARS, S/O. BHARATHAN D.K., 5/731, THOTTUMUKHATH HOUSE, GURUKULAM, QUILANDY P.O., KOZHIKODE DISTRICT, PIN - 673305. 3 UNITED INDIA INSURANCE CO. LTD. HAPPY TOWER, EAST ROAD, KOYILANDY, KOZHIKODE DISTRICT, PIN - 673305, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE. BY ADV SMT.PREETHY R. NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 4181 OF 2018 2** ## **JUDGMENT** The appellant is the petitioner in OP(MV) No.449 of 2016 on the file of the Motor Accidents Claims Tribunal, Vatakara. The respondents are the respondents before the Tribunal. 2. The short facts relevant for the determination of this appeal are as follows: On 14.02.2016, while the appellant was riding a scooter bearing Reg. No.KL-56-D-7642 towards Kuruvangadu and when he reached Anela Road near Jubilee Club, a motorcycle bearing Reg.No.KL-56 A-3548 driven by the 2nd respondent came from the opposite direction in a rash and negligent manner and hit the scooter ridden by the appellant. In the said accident, the appellant sustained serious injuries and he was immediately taken to Government Hospital, Koyilandy. As the injuries were serious, the appellant was referred to the Medical College Hospital, Kozhikode, and was treated as an inpatient from 14.2.2016 to 16.2.2016. The appellant was aged 42 years at the time of the accident and was a Coolie, earning Rs.25,000/per month. Motorcycle bearing Reg.No.KL-56A-3548 was insured with the 3rd respondent and the appellant had claimed a total compensation of Rs.10,00,000/- from the respondents. 3. Respondents 1 and 2 who are the owner and driver of the offending **MACA NO. 4181 OF 2018 3** vehicle did not contest the matter before the Tribunal and they were set ex parte. The 3rd respondent insurance company filed a written statement, admitting the insurance policy of the offending vehicle at the relevant time of the accident. 4. The appellant produced and marked Exts.A1 to A10 as evidence before the Tribunal and the certificate of permanent disability was marked as Ext.C1. 5. The Tribunal after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, permitting the appellant to realise an amount of Rs.1,48,300/- with 9% interest per annum and proportionate costs from the date of petition till the date of deposit. The 3rd respondent was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the present appeal is filed. 7. Heard, Shri. Abu Mathew, the learned counsel appearing for the appellant and also Smt.Preethy R Nair, the learned Standing Counsel appearing for the 3rd respondent Insurance Company. 8. The sole question that arises for consideration is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 9. Ext.A1 is a copy of the FIR in Crime No.190/2016 of Koyilandy **MACA NO. 4181 OF 2018 4** Police Station registered against the 2nd respondent herein and Ext.A5 is the final report in the above said crime. Exts.A1 and A5 prove that the accident was solely on account of the negligence on the part of the 2nd respondent, who was riding the offending motorcycle bearing Reg.No. KL 56-A-3548. Admittedly, the 1st respondent is the owner and the 3rd respondent is the insurer of the offending vehicle. Therefore, the 3rd respondent is bound to indemnify the liability of the 1st respondent. 10. The appellant had claimed that he is a Coolie worker, aged 43, and was having a monthly income of Rs.25,000/-. The Tribunal fixed the notional income of the appellant at Rs.7,000/- and the appellant claimed that the Tribunal went wrong in fixing Rs.7,000/- as his notional income. 11. In _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd [(2011) 13 SCC 236]**_ the Apex Court has fixed the notional income of a Coolie worker in the year 2004 at Rs.4,500/- per month. The Apex Court in _**National Insurance Co. Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680**_ has also recognized the principle that there would be an incremental enhancement in the case of even self-employed individuals in the unorganised sector. This Court in _**Soman v. Jinesh James**_ _**and Others [ 2020 (4) KLT Online 1033]**_ has held that with respect to an unspecified job of a coolie considering the increase in the cost of living and **MACA NO. 4181 OF 2018 5** economic advancements over the years, it can be safely assumed that even a coolie would be eligible for incremental addition of at least Rs.500/- in every subsequent year. Following the ratio of the aforesaid decisions and taking note of the fact that the accident occurred in the year 2016, the appellant’s counsel contended that the Tribunal went wrong in fixing the notional income of the appellant at Rs.7000/- per month. Taking into consideration the decisions as referred above, the notional income of the appellant is fixed as Rs. 10,500 per month. 12. Under the head Loss of Earnings from 14.2.2016 to 14.2.2017 a total amount of Rs.3,50,000/- was claimed and an amount of Rs.42,000/was allowed by the Tribunal on finding that there is loss of income for six months and by fixing the notional income per month at Rs.7,000/-. Due to the enhancement of notional income at Rs.10,500/- by this Court, the amount due to the appellant under the head of Loss of Earnings is fixed at Rs.63,000/- (10500 x 6) instead of Rs.42,000/- awarded by the Tribunal. 13. The appellant further contended that even though an amount of Rs. 50,000/- was claimed towards Extra Nourishment and Bystanders Expenses, only Rs. 7300/- was awarded. Taking into consideration the nature of the injuries and the fact that he was treated as an inpatient, I feel that an amount of Rs. 10000/- could be fixed in the place of Rs. 7300/- fixed ## **MACA NO. 4181 OF 2018 6** by the Tribunal. 14. Even though the appellant had claimed Rs.3,00,000/- as compensation for permanent disability, the Tribunal granted only Rs.23,520/under this head. The appellant was examined by the Medical Board attached to the Government District Hospital, Vatakara, and the report by the Medical Board is marked as Ext.C1 before the Tribunal. As per C1 report, the petitioner had sustained partial ankylosis knee due to tibial condyle fracture and the board assessed his permanent disability at 2%. Considering the age of the appellant, which was 42 years at the time of the accident and in view of the judgment in _**Sarla Verma vs. Delhi Transport Corporation [(2010 (2) KLT 802]**_ the Tribunal has correctly adopted the proper multiplier of 14. Since the notional income has been increased by this Court from Rs.7,000/to 10,500/-, the appellant is entitled to a total amount of Rs.35,280/- (Rs. 10,500 x 12 x 14 x 2/100) as compensation for permanent disability instead of Rs.23,520/- fixed by the Tribunal. 15. With respect to compensation awarded under other various heads, I find that the Tribunal has awarded reasonable and just compensation. 16. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the aforesaid decisions, I hold that the appellant is entitled to enhancement of compensation as modified and **MACA NO. 4181 OF 2018 7** recalculated above and as given in the table below for easy reference. |||**Amounts**<br>**modified and**<br>**recalculated by**<br>**this Court**<br>**(Rs.)**|**Actual increase**<br>**as per the**<br>**recalculation by**<br>**this Court**<br>**(Rs.)**| |---|---|---|---| ||**Amount**<br>**awarded by the**<br>**Tribunal**<br>**(Rs.)**||| |**Head of Claim**|||| ||||| ||||| |Loss of earning|42,000/-|63,000/-|21,000/-| |Transport to hospital|3,000/-|3,000/-|-------| |Extra nourishment &<br>bystander expenses|||| ||7,300/-|10,000/-|2,700/-| ||||| |Medical expenses|6,429/-|6,429/-|-------| |Damage to clothing|1,000/-|1,000/-|-------| |Pain & suffering|40,000/-|40,000/-|-------| |Loss of amenities|25,000/-|25,000/-|-------| |Permanent disability|23,520/-|35,280/-|11,760/-| ||**1,48,249/-**<br>**(Rounded**<br>**to**<br>**Rs. 1,48,300/-)**||| |**Total**||**1,83,709/-**|**35,460/-**| ||||| In the result, the appeal is allowed in part, by modifying the order of the Tribunal and enhancing the compensation by a further amount of Rs.35,460/with interest at the rate of 9% per annum on the compensation from the date of petition till the date of realisation with proportionate costs. The 3rd respondent shall deposit the additional compensation amount awarded in the appeal before the Tribunal with interest and costs within a period of two **MACA NO. 4181 OF 2018 8** months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellant/petitioner in accordance with the law. Sd/- **VIJU ABRAHAM JUDGE** pm