RAPHY C.O S/O.OUSEPH v. SARAVANAN and SARAVANAN and UNITED INDIA INSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938 MACA.No. 2660 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 628/2007 of MACT, IRINJALAKUDA DATED 10-09-2012 APPELLANT(S)/PETITIONER: ------------------------------ RAPHY C.O S/O.OUSEPH, CHENATHUPARAMBIL HOUSE, ALOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS: ------------------------------------ 1. SARAVANAN S/O.POONDI GOUNDER, III/C, PILLAYAR KOVIL STREET, THILLAIPURAM, NAMAKKAL P.O., TAMILNADU-637001. 2. SARAVANAN S/O.SELLAYYA, VII/72B, ALAMARAM STREET, CHETTIKULAM P.O., KUNNAM TALUK, PERAMBALOOR, TAMILNADU DISTRICT-621104. 3. UNITED INDIA INSURANCE CO.LTD. - D.O.NO.2, DR. SHANKARAN ROAD, NAMAKKAL P.O., TAMIL NADU-637001. R3 BY ADV. SRI.RAJESH THOMAS R3 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** ## **========================== M.A.C.A. No.2660 OF 2012 ==========================** Dated this the 1[st] day of April, 2016 ## **JUDGMENT** ## _Ravikumar, J._ Dissatisfied with the quantum of compensation granted under the award dated 10.09.2012 in O.P.(MV) No.628/07 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda, the injured/claimant preferred this appeal. He sustained injuries on 19.06.2006 shortly after the noon of the night. He was driving his goods vehicle bearing Reg.No.KL-8-AD 5871 through NH 47 to Vembayam and when he reached south of the church at Vembayam, the offending vehicle which is a tanker lorry bearing Reg.No.TN-28/K 9352 driven by the second respondent in a rash and negligent manner collied with his vehicle. Consequently, he sustained injuries and his vehicle was also damaged. The appellant was taken to Government Hospital, Harippad and from there, he was shifted to **M.A.C.A.2660/2012** 2 St.James Hospital, Changanassery. He remained as inpatient there altogether for a period of 24 days. In the accident, he had suffered Type 1 open fracture on the shaft of right femur. He incurred a whole body permanent disability of 23.49% going by Ext.A6 disability certificate. Obviously, the appellant took up contentions to the effect that he was a driver by profession and was earning `15,000/- as monthly income besides alleging rashness and negligence on the part of the second respondent, the driver of the offending vehicle and necessary averments to make the first respondent vicariously liable and the third respondent liable to indemnify the first respondent. The claim petition was filed under Section 166 of the Motor Vehicles Act. Besides getting himself examined as PW1, he got examined PWs 2 to 4. Exts.A1 to A15 were also got marked on his side. On the side of the respondents, no oral evidence was adduced. However, the policy in respect of the vehicle was got marked as Ext.B1. The Tribunal, on consideration of the evidence on record and the rival **M.A.C.A.2660/2012** 3 contentions, passed the impugned award for an amount of `2,24,285/- with interest at the rate of 7.5% from 15.06.2007 till realisation. 2. We have heard the learned counsel for the appellant and also learned counsel appearing for the third respondent. The only question calls for consideration in this appeal is whether the claim of the appellant for enhancement of the compensation is to be granted or not as there is no dispute regarding the accident, the insurance coverage of the offending vehicle and also the cause of accident as the negligence from the part of the second respondent, the driver of the offending vehicle. 3. The main grievance of the appellant is regarding the fixation of the multiplicand for the purpose of fixing the compensation for the permanent disability incurred by him due to the injuries sustained in the accident. The learned counsel contended that the appellant had taken up a **M.A.C.A.2660/2012** 4 specific pleading in the claim petition that he was a driver by profession and was earning `15,000/- per month. However, ignoring such pleadings, the Tribunal took the monthly income notionally, that too, only as `3,000/-. The learned counsel contended that the very fact that the appellant was driving the vehicle at the time of the accident on the strength of a valid driving licence itself would suggest that the injured was a driver by profession. Holding a driving licence and driving the vehicle at the relevant point of time alone are not decisive factors for the purpose of treating a person as a driver. In such circumstances, we do not find fault with the Tribunal in declining to accept the contention of the appellant that he was a driver by profession and thereafter, to fix the monthly income on notional basis. But, then the Tribunal obviously fixed the monthly income notionally at `3,000/-. Therefore, the question is whether there is any substance in the contention of the appellant that the said fixation is palpably erroneous warranting interference. The appellant **M.A.C.A.2660/2012** 5 was aged 35 years at the time of the accident and the accident occurred in the year 2006. These dual factors coupled with the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** constrain us to uphold the contention of the appellant in that regard. In that case, in respect of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income on notional basis at `4,500/-. In such circumstances, even in the absence of evidence regarding the occupation and income, we are of the view that there is absolutely no justification for fixing the monthly income notionally at `3,000/- and the notional income ought to have been fixed as `4,500/-. In such circumstances, we are inclined to fix the monthly income of the appellant as `4,500/-, for calculation purpose. In this case, Ext.A6 disability certificate would reveal that due to the injuries sustained in the accident, the appellant had incurred disability of 23.49% (whole body). In such **M.A.C.A.2660/2012** 6 circumstances, it will only be proper to consider the question whether the appellant is entitled to seek for addition to the income fixed notionally reckoning future prospects. Certainly, the appellant cannot seek for addition of 50% to the income so fixed notionally relying on the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation** reported in **2010 (2) KLT 802 (SC)** and **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54].** In **Sarla Verma'** s case, the Apex Court laid down such a dictum in respect of salaried persons. In **Rajesh'** s case, the Apex Court extended the said principle as regards self employed persons and persons with fixed income. But at the same time, persons who are eking livelihood by doing coolie works cannot be described as salaried persons or they cannot be said to be self employed persons. They also could not claim that they got fixed income. But at the same time, the factors like the price index as also the cost of living cannot be said to have no reflection as regards the persons belonging to those **M.A.C.A.2660/2012** 7 categories. It will have its own impact on such categories of persons as in the case of salaried or self employed persons. In such circumstances, we are of the view that taking note of such factors, in the case of death as also in case of the injured persons who sustained permanent disability to a greater extent such additions can be effected. Imbibing the spirit of the decisions in **Sarla Verma** 's case and **Rajesh'** s case and other reasons mentioned hereinbefore, we are of the view that in the case of persons who are eking their livelihood by doing coolie works, 30% can be added to their income. Based on such calculation made hereinbefore, the monthly income of the appellant has to be taken as `5,850/- for the purpose of calculating the compensation payable for the permanent disability incurred by him. As noticed hereinbefore, the multiplier was rightly identified by the Tribunal with reference to the age of the injured. The entire disability certified under Ext.A6 was taken for the aforesaid purpose by the Tribunal. In such circumstances, with substitution of **M.A.C.A.2660/2012** 8 the monthly income, if the amount payable under the aforesaid head is re-assessed following the same formula in all other respects the appellant would be entitled to get `1,28,538/- additionally. Towards loss of earning, the Tribunal granted an amount of `9,000/- (`3000x3). Taking note of the injuries sustained by the appellant, we are of the considered view that the period for which he is entitled to get compensation under the head 'loss of earning' ought to have been taken as four months instead of three months that too, at the rate of `4,500/-. In the light of such calculation, the appellant is entitled to get `9,000/- more under the aforesaid head. Towards transportation expenses, the Tribunal granted only an amount of `1,000/-. Taking note of the fact that the accident occurred in Haripad and after getting initial treatment from the Government Hospital, Haripad, he was taken to St.James Hospital, Chalakudy and thereafter on discharge from there, he was taken to home in a vehicle, we are of the view that he is entitled to `2,000/- more under the said **M.A.C.A.2660/2012** 9 head. Towards damage to clothing, the appellant claimed an amount of `1,000/-. But, the Tribunal did not grant any amount thereunder. The nature of the injuries sustained by the appellant in the accident would undoubtedly suggest that the dresses worn by him at the time of the accident must have been damaged. In such circumstances, there was no justification for declining the amount claimed thereunder. In such circumstances, we are inclined to grant `1,000/- under the aforesaid head. Towards extra nourishment, the appellant was granted an amount of `2,000/-. Taking note of the fact that he had been an inpatient for a period of 24 days, we are of the view that taking the rate as `100/-, he is entitled to get `2400/-. Since the Tribunal has already granted an amount of `2,000/-, the appellant is entitled to get `400/- more under the said head. Towards bystanders expenses, the Tribunal granted only an amount of `2,400/- as against a claim of `10,000/-. Evidently, the Tribunal took note of the period of hospitalisation as 24 days and granted `100/- per day for **M.A.C.A.2660/2012** 10 effecting such calculation. Taking note of the fact that the accident occurred in the year 2006, we are of the view that he should have been granted bystanders expenses @ `250/- for the same period. Based on such calculation, the appellant is entitled to get `3,600/- more under the aforesaid head. Towards loss of amenities and discomforts, the appellant claimed an amount of `50,000/-. But the Tribunal did not grant any amount thereunder. Ext.A6 would reveal that the appellant had sustained type I open fracture on the middle 3[rd] of shaft of right femur. Ext.A6 also would reveal that he had incurred 23.49% permanent disability (whole body). Taking note of all such circumstances, it is evident that the claim of the appellant for compensation towards loss of amenities and discomforts ought not have been declined. Taking note of such circumstances, the appellant is entitled to get `20,000/under the said head. In the light of the aforesaid discussions, the appellant is entitled to get a total enhanced amount of `1,64,538/-. The third respondent is **M.A.C.A.2660/2012** 11 directed to deposit the said amount within three months from the date of receipt of a copy of this judgment with interest @ 8% from the date of the petition till realisation. In case of failure to deposit the said amount within the above stipulated time, the amount remaining to be paid will carry interest @ 9%. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/-** **MARY JOSEPH (JUDGE)** **vs/spc** **M.A.C.A.2660/2012** 12 **C.T. RAVIKUMAR, J.** ## **JUDGMENT** 13 ## **M.A.C.A.2660/2012** **September, 2010**