Rajan C.C. v. Pramod C.R. and Ors.

1 MACA No.96 of 2010 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943 MACA NO. 96 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1517/2004 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** RAJAN C.C. S/O.CHATHU,CHERAYIL HOUSE, MATHILAKOM PO,, THRISSUR DISTRICT. BY ADV SRI.N.KRISHNANKUTTY PILLAI ## **RESPONDENT/S:** 1 PRAMOD C.R. , S/O.RAJAN, CHERAYIL HOUSE MATHILAKOM PO, THRISSUR DISTRICT. 2 MR.VINODH, S/O.KRISHNAN KOZHIPARAMBIL HOUSE, KAZHUVILANGU, PAPPINIVATTOM, VILLAGE, THRISSUR DIST. 3 THE MANAGER, ORIENTAL INSURANCE CO.LTD BRANCH OFFICE, KODUNGALLUR, THRISSUR DISTRICT. BY ADV SRI.M.JACOB MURICKAN- R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.96 of 2010 ## **C.S.DIAS, J. ====================== MACA No.96 of 2010** ## **====================== Dated this the 17[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1517/2004 on the file of the Motor Accident Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 4.4.2004. It was his case that, on the above said date, while he was travelling pillion on a motorcycle bearing registration No.KL-8/X 3852 along the National Highway 17, the rider of the motorcycle - second respondent - applied sudden brake and the appellant was thrown off the motorcycle. The appellant sustained serious injuries and was treated at the Medical Trust Hospital, Ernakulam and then at the 3 MACA No.96 of 2010 Jubilee Mission Hospital, Thrissur, for a period of 32 days. The motorcycle was owned by the first respondent and insured with the third respondent. The appellant was aged 62 years at the time of the accident. He was a retired Grama Panchayat Member and Agriculturist by profession and was earning a notional monthly income of Rs.2,000/-. Hence, the appellant claimed a compensation of Rs.2,06,000/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement admitting that the motor cycle had a valid insurance coverage. However, it was contended that the motorcycle was covered only by an 'Act Policy', which did not cover the risk of the pillion rider. Therefore, the third respondent was not liable to indemnify the first respondent. 4 MACA No.96 of 2010 5. The appellant produced and marked Exts A1 to A10 in evidence. The third respondent produced insurance policy certificates, which were marked as Exts B1 and B2 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, particularly, taking note of the fact that the motorcycle was covered by a comprehensive policy, permitted the appellant to recover from the third respondent an amount of Rs.82,500/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard: Sri.N.Krishnankutty Pillai, the learned Counsel appearing for the appellant/petitioner and Sri.M. Jacob Murickan, the learned counsel appearing for the third respondent/insurer. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation 5 MACA No.96 of 2010 awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A1 FIR registered by the Mathilakam Police Station in Crime No.167/2004 read with Ext A2 wound certificate proves the fact that the accident occurred due to the negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the motorcycle. As it is proved and established that the motorcycle was covered by a package policy and in view of the law laid down in **National Insurance Co.Ltd v. Balakrishnan and Ors. [AIR 2013 SC 473]** , the third 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 retired Grama Panchayat Member and Agriculturist by profession and was earning a monthly income of 6 MACA No.96 of 2010 Rs.2,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.1,500/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** 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 2004, I fix the notional monthly income of the appellant at Rs.4,500/-. ## **Multiplier** 14. The appellant was 62 years at the time of the accident. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '7'. **Loss of earnings** 7 MACA No.96 of 2010 15. The Tribunal found that the appellant was indisposed for a period of four months. I confirm the said finding. Nevertheless, in view of the refixation 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 instead of Rs.6,000/- awarded by the Tribunal. ## **Disability** 16. The appellant had suffered a hemorrhagic contusion of the left temporal region of the brain and subdural hematoma of the temporo parietal region of the left side. He was treated as an inpatient for a period of 32 days in two hospitals. The Consultant Neuro Physician of the Irinjalakkuda Co-operative Hospital, by Ext A7, found that the appellant had 40% permanent disability for the reason that he was dependent on others for his daily routine and he was on anti-psychotic drugs. Nonetheless, the Tribunal fixed the functional disability of the appellant at 20%. I do not find any error in the 8 MACA No.96 of 2010 fixation of the functional disability of the appellant at 20%, particularly since the appellant was aged 62 years at the time of the accident and he was leading a retired life. Therefore, I confirm the finding. However, as I have refixed the notional monthly income of the appellant at Rs.4,500/- and adopted the multiplier of '7' , I award the appellant an amount of **Rs.75,600/-** towards loss due to disability, instead of Rs.18,000/- awarded by the Tribunal. ## **Bystander expenses and Extra Nourishment** 17. It is proved and established, as per Exts A3 to A6 discharge summaries, that the appellant was treated as an inpatient for a period of 32 days. The Tribunal has awarded only an amount of Rs.3,200/- towards bystander expenses. The said amount is too meagre. 18. Taking into account the fact that the appellant was treated as an inpatient during the year 2004, for a period of 32 days , I award him an amount of Rs.300/- 9 MACA No.96 of 2010 per day for a period of 32 days towards 'bystander expenses', which works out to **Rs.9,600/-** and Rs.150/- per day for a period of 32 days towards 'extra nourishment', which works out to **Rs.4,800/-** . ## **Pain and sufferings and loss of amenities** 19. The Tribunal has awarded only an amount of Rs.12,000/- under the head 'pain and sufferings' and Rs.3,000/- under the head 'loss of amenities'. 20. Taking into consideration the fact that the appellant was treated as an inpatient for a period of 32 days, that he was indisposed for a period of four months, and that he had suffered a functional disability of 20%, I award him a further amount **Rs.8,000/-** under the head 'pain and sufferings' and **Rs.7,000/-** under the head 'loss of amenities'. ## **Other heads of compensation** 21. With respect to the other heads of claim, viz., transportation expenses and medical expenses, I find 10 MACA No.96 of 2010 that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, 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. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|6,000/-|18,000/-| |2|Transportation expenses|2,000/-|2,000/-| |3|Extra nourishment|Nil|4,800/-| |4|Bystander expenses|3,200/-|9,600/-| |5|Medical expenses|38,300/-|38,300/-| |6|Pain and sufferings|12,000/-|20,000/-| |7|Loss due to disability|18,000/-|75,600/-| |8|Loss of amenities etc|3,000/-|10,000/-| ||Total|82,500/-|1,78,300/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.95,800/-** (Rupees Ninety Five Thousand Eight Hundred only) 11 MACA No.96 of 2010 with interest at the rate of 7% per annum on the enhanced compensation from the date of claim petition till the date of realisation, after deducting interest for a period of 272 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 29.9.2021 in C.M Appln No.1/2010, and a cost of Rs. 7,500/-. The third 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 of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant, in accordance with law. SD/- sks/17.1.22 **C.S.DIAS, JUDGE**