Rajith M.S./Outhaman v. National Insurance Co. Ltd.

MACA NO. 1060 OF 2011 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943 MACA NO. 1060 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1371/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY, KANNUR** ## **APPELLANT/S:** RAJITH M.S/OUTHAMAN, AGED 34 YEARS,ALAKKAL HOUSE,MURINGERI,ANJARAKANDY P.O,KANNUR. BY ADVS. SRI.K.C.SANTHOSHKUMAR SRI.GOPAKUMAR G. ALUVA ## **RESPONDENT/S:** NATIONAL INSURANCE CO.LTD ATINITUKARAL BRANCH 29, PULLA AVENUE,I FLOOR SHENOY NAGAR, CHENNAI, REP.BY ITS DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD,KANNUR DIVISION,KANNUR. BY ADV PREETHY R. NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1060 OF 2011 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1371/2005 on the file of the Motor Accidents Claims Tribunal, Thalassery. The respondent in the appeal was the 2[nd] respondent/ insurer before the Tribunal. On the assertion that the 2[nd] respondent had admitted the insurance policy, the appellant has not impleaded the respondents 1 and 3 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident 22.12.2003. It was his case that, on the above said date, while he was on pilgrimage to Sabarimala and traveling in a tempo traveler bearing registration No.KL-13J 7924 (van) driven by the 3[rd] respondent, when the van reached Moonnupeedika petrol pump on the Guruvayoor-Kodungalloor route, the driver drove the van in a rash and negligent manner and the van capsized. The petitioner sustained injuries, including a comminuted fracture and dislocation of the left hip, fracture of MACA NO. 1060 OF 2011 3 the posterior lateral head of the femur and fracture of the posterior column. He was treated as an inpatient in two spells spanning 41 days at the Medical College Hospital, Pariyaram and the Thejaswini Hospital, Mangalore. The petitioner was a loading and unloading worker by profession, aged 28 years and was earning a monthly income of Rs.4,000/-. The van was owned by the 1[st] respondent and insured with the 2[nd] respondent. Hence, the petitioner claimed compensation of Rs.7,80,000/- from the respondents. 3. In the same accident, several other persons also sustained injuries. Four of the injured filed OP(MV) Nos.1372, 1373, 1374 and 1375 of 2005 before the same Tribunal. 4. The respondents 1 and 3 filed separate written statements in all the claim petitions disputing the negligence on the part of the 3[rd] respondent. It was also contended that the quantum of compensation awarded in the claim petitions were in excess. Nevertheless, they contended that the van was insured with the 2[nd] respondent. 5. The 2[nd] respondent had filed separate written statements disputing that the van had a valid insurance coverage. It was contended that the insurance policy that was MACA NO. 1060 OF 2011 4 shown in the claim petition pertains to another vehicle. Therefore, there was no privity of contract between the respondents 1 and 2. Likewise the 2[nd] respondent disputed the age, income and occupation of all the claimants. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The petitioners examined PWs 1 and 2 and marked Exts.A1 to A30 in evidence. Ext.X1 disability certificate pertaining to the petitioner was also marked. The 2[nd] respondent produced the insurance policy which was marked as Ext.B1. 8. The Tribunal, after analysing the pleadings and materials on record, and taking note of the fact that the insurance policy stood in the name of the previous owner of the vehicle and in its earlier registration, arrived at a conclusion that the vehicle was covered by a valid insurance policy and that the 2[nd] respondent was its insurer. Accordingly, the Tribunal, by its common award allowed the captioned claim petition, by permitting the petitioner to recover from the 2[nd] respondent an amount of Rs.1,14,200/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded MACA NO. 1060 OF 2011 5 by the Tribunal, the petitioner is in appeal. 10. Heard Sri. K.C. Santhoshkumar, the learned counsel appearing for the appellant/petitioner and Smt.Preethy R. Nair, the learned counsel appearing for the respondent/2[nd] respondent insurer. 11. The question that arises for consideration in the appeal is: whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 12. Ext.A1 FIR registered by the Mathilakam Police in Crime No.514/2003 proves that the accident occurred due to the negligence of the 3[rd] respondent. The respondents have not let in any evidence to the contrary to disprove the assertions in the claim petition. The 2[nd] respondent has not established that the 1[st] respondent had violated the insurance policy conditions. Therefore, based on Exts.A8 and A9, it is proved that the 2[nd] respondent was the insurer of the van. Hence, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. MACA NO. 1060 OF 2011 6 ## **Income** 13. The petitioner had claimed that he was a coolie worker by profession and earning a monthly income of Rs.4,000/-. The Tribunal, for want of materials, fixed the notional monthly income of the appellant at Rs.3,000/-. ## 14. In **Ramachandrappa vs. Manager, Royal Sundaram** **Alliance Insurance 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 2003, I refix the notional monthly income of the petitioner at Rs.4,000/- per month. ## **Loss of earnings** 16. It is proved and established that the petitioner was treated as an inpatient for a period of 41 days, in two spells spanning from 23.12.2003 to 02.07.2004. Therefore, necessarily the petitioner was indisposed for a period of six months. 17. In view of the refixation of the notional monthly income of the petitioner at Rs.4,000/- per month, I refix compensation MACA NO. 1060 OF 2011 7 for 'loss of earnings' at Rs.24,000/-. ## **Bystander expenses and extra nourishment** 18. It is on record that the petitioner was treated as an inpatient for a period of 41 days. The Tribunal has awarded the bystander expenses at Rs.100/- per day amounting to Rs.4,100/and extra nourishment at Rs.5,000/-. The amount awarded by the Tribunal according to me is too meagre. Hence I award an amount of Rs.250/- per day towards 'bystander expenses' for a period of 41 days that works out to Rs.10,250/-. Similarly, I award an amount of Rs.150/- per day for 41 days towards 'extra nourishment' which amounts to Rs.6,150/-. ## **Disability** 19. It is proved and accepted by the Tribunal, as per Ext.X1, that the petitioner has a functional disability of 8%. On going through Ext.X1, I find that the findings arrived at by the Tribunal to be correct justifiable. Therefore, I confirm the said finding. ## **Multiplier** 20. As the petitioner was aged 28 years at the time of the accident, following the law laid down in **Sarla Varma vs. Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant MACA NO. 1060 OF 2011 **==> picture [7 x 9] intentionally omitted <==** multiplier to be adopted is ‘17’, instead of ‘18’ fixed by the Tribunal. ## **Loss due to disability** 21. Taking into account the above mentioned factors namely, the notional monthly income of the petitioner at Rs.4,000/-, his functional disability at 8% and the multiplier at ‘17’, I award him compensation for 'loss due to disability' at Rs.65,280/-, instead of Rs.51,840/- awarded by the Tribunal. ## **Loss of amenities** 22. It is proved and established that the petitioner was treated as an inpatient for a period of 41 days. He was indisposed for a period of six months and that he has suffered functional disability of 8%. 23. Therefore, I award the petitioner an amount of Rs.20,000/- towards 'loss of amenities'. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 25. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled MACA NO. 1060 OF 2011 9 for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [455 x 480] 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 9,000 24,000<br> 2. Transportation expenses 2,000 2,000<br>3. Bystander expenses 4,200 10,250<br>4. Extra nourishment 5,000 6,150<br>5. Medical expenses 12,100 12,100<br>6. Pain and sufferings 20,000 20,000<br>7. Loss of amenities 0 20,000<br>8. Loss due to disability 51,840 65,280<br>Total 1,14,140 1,59,780/-<br>rounded of to rounded of to<br>Rs.1,14,200/- Rs.1,60,000/-<br>by the<br>Tribunal<br>**----- End of picture text -----**<br> In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.45,800/- with interest @ 7.5% per annum from date of petition till the date of deposit 10 MACA NO. 1060 OF 2011 after deducting interest for a period of 220 days i.e., the period of delay in filing the appeal and as ordered by this Court on 12.10.2021 in C.M.Appln. No.1/2011 and cost of Rs.7,500/-. The 2[nd] 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 Tribunal shall disburse the enhanced compensation amount to the appellant/petitioner with interest and cost and in accordance with law. SD/- **C.S.DIAS, JUDGE** rkc