Rajesh P. S/o Velukutty v. V. Pradeep and ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943** **MACA NO. 2664 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1004/2005 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/S:** RAJESH P. S/O.VELUKUTTY,, MANARAKAL HOUSE @ MULLUNILKUNNAKANDI HOUSE, PALLIKKAL P.O., CHELAMBRA - VIA., MALAPPURAM DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL 108692 ## **RESPONDENT/S:** 1 V.PRADEEP , S/O.KARUNAKARAN KALLARAKUNNU VEEDU,, AYIKARAPPADI P.O., PULIKKAL,, MALAPPURAM DISTRICT. 2 K.O.PRAKASH KUMAR ARCHANA, K.S.H.B. COLONY,, MALAPARAMBA, KOZHIKODE DISTRICT. 3 NATIONAL INSURANCE COMPANY LIMITED PARCO TOWER, P.M.TAJ ROAD, KOZHIKODE. BY ADVS. LAL K.JOSEPH R3 SURESH SUKUMAR ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2664 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.2664 of 2009** ## **====================== Dated this the 7[th] day of February, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1004/2005 on the file of the Motor Accident Claims Tribunal, Manjeri. 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 1.7.2004. It was his case that, on the above said date, while he was waiting at Chattiarmad, a car bearing registration No.KL-11/D 1270, driven by the first respondent in a negligent manner, hit the appellant. The appellant sustained serious injuries including a fracture of the shaft of his femur, fracture of both bones of 3 MACA No.2664 of 2009 his left leg and fracture of his left humorous. He was treated at the Koyas Hospital, Feroke and Medical College Hospital, Calicut for a period of 12 days. The second respondent was the owner and the third respondent was the insurer of the car. The appellant was a carpenter by profession and was earning a monthly income of Rs.6,000/-. Hence, the appellant claimed a compensation of Rs.3,00,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The first respondent did not contest the proceeding and was set ex parte. Even though the second respondent had entered appearance through Counsel, he did not file any written statement. 4. The third respondent/insurer had filed a written statement admitting that the car had a valid insurance coverage. 5. The appellant had produced and marked Exts A1 4 MACA No.2664 of 2009 to A4 series in evidence. The disability certificate was marked as Ext X1. 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.59,303/- with interest and cost . 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.P.Venugopal, the learned counsel appearing for the appellant/petitioner and Sri.Lal K.Joseph, the learned counsel appearing for the third respondent/insurer. 9. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 5 MACA No.2664 of 2009 ## **Negligence and liability** 10. Ext A1 final report read with uncontroverted averments in the claim petition prove that the accident happened due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext A1 final report or controvert the pleadings in the claim petition. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 11. The appellant had claimed that he was a carpenter by profession and was earning a monthly income of Rs.6,000/-. For the want of materials, the Tribunal fixed the 6 MACA No.2664 of 2009 notional monthly income of the appellant at Rs.2,500/-. 12. The Hon'ble Supreme Court in **Chameli Devi & Ors vs Jivrail Mian and Ors [2019 KHC 5352]** has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5,000/-. Similarly, in **Shivakumar.M vs. Managing Director, Bengaluru Metropolitan Transport Corporation [(2017) 5 SCC 79]** , the Hon'ble Supreme Court has held that in the absence of any serious dispute on the part of the respondents on the avocation and income of the applicant, the income of the applicant as pleaded in the claim petition can be accepted and fixed. 13. In the instant case, as the appellant had claimed that he was a carpenter by profession and the accident occurred in the year 2004, and there being no dispute about the same from the respondents, I re-fix the notional monthly income of the appellant at Rs.6,000/- as claimed in the claim petition. 7 MACA No.2664 of 2009 ## **Loss of earnings** 14. The Tribunal has found that the appellant was indisposed for a period of ten months. I confirm the said finding. However, in view of the refixation of the monthly income of the appellant at Rs.6,000/-, I award him an amount of **Rs.60,000/-** under the head 'loss of earnings' instead of Rs.25,000/- awarded by the Tribunal. ## **Disability** 15. The Tribunal accepted Ext X1 disability certificate issued by the Medical Board and has fixed the functional disability of the appellant at 3%. I confirm the said finding. **Multiplier** 16. Admittedly, the appellant was aged 30 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '17'. 8 MACA No.2664 of 2009 ## **Loss due to disability** 17. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.6,000/-, the multiplier at '17 and his functional disability at 3%, I award the appellant an amount of **Rs.36,720/-** towards 'loss due to disability' instead of Rs.15,300/- (6,000 x 12 x 17 x 3 ÷ 100) awarded by the Tribunal. ## **Bystander expenses and Extra Nourishment** 18. The appellant was treated as an inpatient for a period of 12 days. 19. Considering the fact that the accident occurred in the year 2004, I award him an amount of Rs.400/- per day for a period of 12 days towards 'bystander expenses', which works out to **Rs.4,800/** - and an amount of Rs.200/- per day for a period of 12 days towards 'extra nourishment', which amounts to **Rs.2,400/** -, instead of Rs.2,000/- awarded by the Tribunal under the heads 'extra nourishment' and 9 MACA No.2664 of 2009 'bystander expenses' with review expenses. ## **Pain and sufferings and Loss of amenities** 20. The Tribunal has awarded an amount of Rs.12,000/- under the head 'pain and sufferings'. 21. On a consideration of the fact that the appellant was treated as an inpatient for a period of 12 days, that he was indisposed for a period of ten months and that he has suffered a functional disability of 3%, I award him a further amount of **Rs.10,000/-** under the head 'pain and sufferings' and an amount of **Rs.10,000/-** under the head 'loss of amenities'. ## **Other heads of compensation** 22. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore- 10 MACA No.2664 of 2009 cited precedents, I hold that the appellant/petitioner is entitled to 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 the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of earnings|25,000/-|60,000/-| |2|Transportation expenses|500/-|500/-| ||Damage to clothing|250/-|250/-| |3|Extra nourishment|Nil|2,400/-| |4|Bystander expenses<br>For reviews(8 times)|1,200/-<br>800/-|4,800/-<br>800/-| |5|Medical expenses|4,253/-|4,253/-| |6|Pain and sufferings|12,000/-|22,000/-| |7|Loss due to disability|15,300/-|36,720/-| |8|Loss of amenities etc|Nil|10,000/-| ||Total|59,303/-|1,41,723/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.82,420/-** (Rupees Eighty Two Thousand Four Hundred and Twenty only) with interest at the rate of 7% per 11 MACA No.2664 of 2009 annum on the enhanced compensation from the date of claim petition till the date of realisation and a cost of Rs.5,000/-. The third respondent 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 same shall be disbursed to the appellant /petitioner, in accordance with law. Sd/- sks/7.2.2022 **C.S.DIAS, JUDGE**