Pradeep Kumar v. Thomas and The National Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943 ``` ``` MACA NO. 1197 OF 2010 ``` ``` AGAINST THE AWARD DATED 29.08.2009 IN OP(MV)NO.1687/2002 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR ``` ## `APPELLANT/PETITIONER:` ``` PRADEEP KUMAR AVINISSERY HOUSE, PARAKKOVIL, CHERPU PO, THRISSUR DISTRICT. ``` ``` BY ADV SRI.T.C.SURESH MENON ``` ## `RESPONDENTS/RESPONDENTS` ``` 1THOMAS, S/O.LONA, KODALI DESOM, MATTATHOOR VILLAGE, THRISSUR DISTRICT. ``` ``` 2THE NATIONAL INSURANCE CO.LTD., KOLLANNUR, DEVASSY SMARAKA BUILDINGS ROUND EAST THRISSUR. ``` ``` BY ADVS.SMT.K.S.SANTHI SRI.GEORGE CHERIAN THIRUVALLA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1197/2010 ``` ``` -:2:- ``` Dated this the 11[th] day of January,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.1687/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 163A of the Motor Vehicles Act, 1988(in short, 'Act'), claiming compensation on account of the that he sustained in an accident on injuries 31.03.2001. It was his case that, on the above date, while he was riding his motorcycle bearing registration No.KL-8/P-5149, when he reached Kurumali Center, another motorcycle bearing registration No.KL-8/N-5771(offending motorcycle), ridden and owned by the first respondent in a rash ``` M.A.C.A.No.1197/2010 ``` ``` -:3:- ``` and negligent manner, hit the motorcycle of the appellant. The appellant sustained serious injuries, including fracture of his right fibula and suffered a hematoma of his right parietal area. He was treated as an inpatient at the West Fort Hospital, Thrissur, from 31.03.2001 to 10.04.2001. The appellant was a goldsmith by profession and earning a monthly income of Rs.3,250/-. The second respondent was the insurer of the offending motorcycle. Hence, the appellant claimed a compensation of Rs.2,18,000/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The first respondent did not contest the proceedings and was set ex parte. 4. The second respondent had filed a written statement, admitting that the motorcycle had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. ``` M.A.C.A.No.1197/2010 ``` ``` -:4:- ``` 5. The appellant examined the doctor who issued disability certificate as PW1 and marked Exts.A1 to A10 series in evidence. The second respondent produced and marked Exts.B1 to B3 in evidence. 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 second respondent an amount of Rs.51,500/- with interest at the rate of 8% per annum from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. T.C. Suresh Menon, the learned counsel appearing for the appellant/petitioner and Smt. K.S. Santhi, the learned counsel appearing for the second respondent-insurer. ``` M.A.C.A.No.1197/2010 ``` ``` -:5:- ``` 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability:** 10. Admittedly, the claim petition was filed under Section 163A of the Act. In view of the law laid down in **United India Insurance Ltd. v. Company Sunilkumar** [2017 (4) KLT 1093 (SC)], the question of negligence cannot be looked into. Therefore, going by the assertions in the claim petition that the accident occurred due to the negligence of the first respondent and that the second respondent was the insurer of the offending motorcycle, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income:** 11. The appellant had claimed that he was a ``` M.A.C.A.No.1197/2010 ``` ``` -:6:- ``` goldsmith by profession and earning a monthly income of Rs.3,250/-.The Tribunal, for want of materials, fixed the notional income of the appellant at Rs.2,500/- per month. 12. The Hon’ble Supreme Court in **Chameli Devi and Ors. v. Jivrail Mian & Ors.** [2019 KHC 5352], has fixed the notional income of a carpenter in the year 2001, at Rs.5,000/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the appellant was a skilled labourer and that the accident occurred in the year 2001, I have no hesitation to fix the monthly notional income of the appellant at Rs.3,250/-, as claimed in the claim petition. ## **Disability:** 14. The appellant had examined PW1 who issued Ext.A9 disability certificate stating that the appellant has a permanent disability of 9% due to the injuries ``` M.A.C.A.No.1197/2010 ``` ``` -:7:- ``` sustained in the accident. The said certificate was accepted and marked in evidence through PW1. However, the Tribunal scaled down the percentage of disability to 5%. The course adopted by the Tribunal, according to me, is erroneous, in view of the law laid down in **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)]. If the Tribunal was dissatisfied with Ext.A9 disability certificate, the Tribunal ought to have referred the appellant to a duly constituted Medical Board. After the said document was accepted in evidence without any objection or protest from the respondents, the Tribunal ought to have fixed the functional disability of the appellant as certified in Ext.A9 at 9%. Therefore, I accept Ext.A9 and fixed the functional disability of the appellant at 9%. ## **Loss of earnings:** 15. The appellant was aged 28 years at the time of accident. Therefore, the relevant multiplier is ‘17’ as ``` M.A.C.A.No.1197/2010 ``` ``` -:8:- ``` per Second Schedule of the Act. Since the appellant was indisposed for a period of six months and his notional monthly income being fixed at Rs.3,250/-, I hold that he is entitled to Rs.19,500/- towards ‘loss of earnings’, instead of Rs.10,000/- awarded by the Tribunal. ## **Loss due to disability:** 16. As per Clause 5(a) of the Second Schedule of the Act, the appellant is entitled for compensation for permanent total disablement by multiplying the annual loss of income with the multiplier applicable to the age of the appellant. In the light of the re-fixation of the notional an annual income of the appellant at Rs.39,000/-, the multiplier at ‘17’ and the functional disability of the appellant at 9%, I award the appellant an amount of Rs.59,670/-, instead of Rs.25,500/awarded by the Tribunal. 17. Similarly, I award the appellant an amount of ``` M.A.C.A.No.1197/2010 ``` ``` -:9:- ``` Rs.5,000/- towards ‘pain and sufferings’ as provided under Clause 4(i)(a) of the Second Schedule of the Act and the actual medical expenses of Rs.10,993/-, thus totaling to an amount of Rs.95,163/-. 18. It is fairly brought to the notice of this Court that the appeal filed by the second respondent-insurer, challenging the very same award, was dismissed by this Court by its judgment dated 08.01.2010 in M.A.C.A.No.48/2010. Therefore, dehors the law laid down in **Sunilkumar** (supra) the finding of negligence against the first respondent has become final. 19. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions and the Second Schedule of the Act, I am of the definite opinion that the appellant/petitioner is entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy reference. ``` M.A.C.A.No.1197/2010 ``` ``` -:10:- ``` |Sl.No|Head of claim|Amount<br>awarded<br>by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|10,000|19,500| |2|Pain and sufferings|5,000|5,000| |3|Medical expense|10,993|10,993| |4|Loss<br>due<br>to<br>disability|25,500<br>(2500 x 12 x<br>5% x 17)|59,670<br>(3250 x 12 x<br>9% x 17)| |**Total**||**51,493**|**95,163**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.43,670/-** with interest at the rate of 8% per annum from the date of petition till the date of deposit,after deducting interest for a period of 53 days i.e., the period of delay in filing the appeal and as ordered by this Court on 20.10.2021 in C.M.Appln. No.1/2010, and a cost of Rs.10,000/-. The second respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy ``` M.A.C.A.No.1197/2010 ``` ``` -:11:- ``` of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge