P. N. Kiran v. Arun T. C. and Sabu Varghese Mangalam Confectionery Pvt. Ltd. and National Insurance Co. Ltd.

MACA NO. 2689 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943** **MACA NO. 2689 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1802/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/S:** P.N.KIRAN, S/O.NARAYANAN NAIR, SREELAKSHMI,VADAVATHOOR P.O.,KOTTAYAM. BY ADVS. A.P.SUBHASH P.R.VENKATESH G.KEERTHIVAS ## **RESPONDENT/S:** 1 ARUN T.C., S/O. CHANDRASEKHARAN NAIR, THEKKEDATHU,ARPOOKARA P.O.,KOTTAYAM. 2 SABU VARGHESE MANGALAM CONFECTIONERY PVT.LTD.,, MANGALAM COMPLEX,S.H.MOUNT P.O.,KOTTAYAM. 3 THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD.,, NEAR GOVT.HOSPITAL,K.P.MAIN ROAD,, PATHANAMTHITTA. BY ADVS. SRI.GEORGEKUTTY MATHEW SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2689 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1802/2004 on the file of the Addl. Motor Accidents Claims Tribunal, Kottayam. 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 05.05.2004. It was his case that, on the above said date, while he was traveling pillion on a motor cycle bearing registration No.KL 5P. 1267, ridden by the 1[st] respondent in a negligent manner, the motor cycle fell into a gutter and the appellant sustained multiple injuries including a communited fracture of the medial tibial plateau of the right knee. He was treated as an inpatient at the Matha Hospital, Thellakom, Kottayam for a period of seven days. The motor cycle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was employed as a Manager in the Mangalam Confectionery Private Ltd., Kottayam and was earning a monthly salary of Rs.10,000/-. Hence, the appellant had claimed a compensation MACA NO. 2689 OF 2009 3 of Rs.3,00,000/- from the respondents. 4. The respondents contested the proceeding by filing separate written statements. 5. The 3[rd] respondent contended that there was no negligence on the part of the 1[st] respondent. The 3[rd] respondent also disputed the age, income and occupation of the appellant. 6. The appellant had produced and marked Exts.A1 to A11 in evidence. The 3[rd] respondent had produced the insurance policy, which was marked as Ext.B1. 7. 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.95,900/- with interest and Rs.3,000/- as cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard Sri. P.R.Venkatesh, the learned counsel appearing for the appellant/petitioner and Smt. Raji T. Bhaskar, the learned counsel appearing for the 3[rd] respondent-insurer. 10. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal MACA NO. 2689 OF 2009 4 is reasonable and just ? ## **Negligence and Liability** 11. Ext.A2 charge sheet filed by the Police proves that the accident occurred due to the negligence of the 1[st] respondent. Indisputably, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the motor cycle. The respondents have not discredited Ext.A2 charge sheet. The 3[rd] respondent has not proved that the 2[nd] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was a Manager in a firm named Mangalam Confectionery Private Ltd., Kottayam. To substantiate his contention, he had produced Ext.A10 salary certificate. The Tribunal, for the reason that the appellant had not proved Ext.A10, has fixed the notional monthly income of the appellant at Rs.2,500/-. 13. I have re-appreciated Ext.A10. It is seen that the MACA NO. 2689 OF 2009 5 appellant had a basic salary of Rs.4,000/- and other allowances of Rs.6,000/-. Therefore, the actual net income of the appellant, as on the date of the accident, is not discernible from the document. 14. Nevertheless, in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2004, I refix the notional monthly income of the appellant at Rs.4,500/-. ## **Loss of earnings** 16. The Tribunal has found that the appellant was indisposed for a period of three months. I confrim the said finding. 17. However, in view of the refixation of the notional monthly income of the appellant at Rs.4,500/- per month, I award him an amount of Rs.13,500/- under the head 'loss of MACA NO. 2689 OF 2009 6 earnings', instead of Rs.7,500/- awarded by the Tribunal. ## **Disability** 18. Even though in Ext.A8, the Doctor has certified that the appellant has a permanent disability of 11%, the Tribunal has fixed the functional disability of the appellant at 5%. 19. On an evaluation of Ext.A8 and finding that the appellant has only wasting of his muscles, I find that the Tribunal has rightly fixed the functional disability of the appellant at 5%. ## **Multiplier** 20. The appellant was aged 40 years at the time of the accident. 21. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘15’. ## **Loss due to disability** 22. Taking into account the above mentioned factors namely, notional monthly income of the appellant at Rs.4,500/-, his functional disability at 5% and the multiplier at 15, I award him an amount of Rs.40,500/- towards ‘loss due to disability’, MACA NO. 2689 OF 2009 7 instead of Rs.22,500/- awarded by the Tribunal. ## **Pain and sufferings and loss of amenities** 23. The Tribunal has awarded an amount of Rs.12,000/under the head 'pain and sufferings' and an amount of Rs.7,000/- under the head 'loss of amenities'. 24. On a consideration of the fact that the appellant was treated as an inpatient for a period of seven days, that he suffered a functional disability of 5% and that he was indisposed for a period of three months, I award him a further amount of Rs.13,000/- under the head ‘pain and suffering’ and a further amount of Rs.13,000/- under the head ‘loss of amenities’. 25. With respect to the other heads of compensation, I hold that the Tribunal has awarded reasonable and just compensation. 26. On a 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 recalculated above and given in the table below for easy reference. MACA NO. 2689 OF 2009 8 **==> picture [449 x 492] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 7,500 13,500<br> 2. Transportation expenses 1,000 1,000<br>3. Clothing 500 500<br>4. Bystander expenses 1,500 1,500<br>5. Extra nourishment 500 500<br>6. Medical expenses 43,400 43,400<br>7. Pain and sufferings 12,000 25,000<br>8. Loss of amenities 7,000 20,000<br>9. Loss due to disability 22,500 40,500<br>Total 95,900 1,45,900<br>**----- End of picture text -----**<br> In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.50,000/- with interest @ 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 324 days i.e., 9 MACA NO. 2689 OF 2009 the period of delay in filing the appeal and as ordered by this Court on 20.10.2021 in C.M.Appln.No.1/2009, and a cost of Rs.5,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/22.02.22