Raveendran v. George Joseph and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 16[TH] DAY OF DECEMBER 2021 / 25TH AGRAHAYANA,** **1943** **MACA NO. 3001 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 500/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** RAVEENDRAN,S/O.KUNJAN NAIR NAMBILIPURATH HOUSE,MADAIKONAM P.O,, THRISSUR DISTRICT. BY ADV SRI.N.KRISHNANKUTTY PILLAI ## **RESPONDENT/S:** - 1 GEORGE JOSEPH,S/O.KALYANKARA VALLIVATTATHUKARAN JOSEPH,IRINJALAKUDA P.O,, THRISSUR DISTRICT. - 2 TONY,S/O.AMBAZHAKADAN THOMAS NEAR ELECTRICITY OFFICE GANDHIGRAM, IRINJALAKUDA P.O,THRISSUR DISTRICT. - 3 THE MANAGER,NATIONAL INSURANCE CO.LTD BRANCH OFFICE,IRINJALAKUDA,THRISSUR DISTRICT. - 4 THE MANAGER,UNITED INDIA INSURANCE CO. LTD,BRANCH OFFICE,IRINJALAKUDA,THRISSUR DISTRICT. BY ADVS. K.S.SANTHI S.K.AJAY KUMAR SRI.K.G.BALASUBRAMANIAN SRI.P.V.JYOTHI PRASAD ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.3001 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.3001 of 2009** ## **====================== Dated this the 16[th] day of December, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.500/2004 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 Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 9.12.2003. It was his case that, on the above said date, while he was riding his motor cycle bearing registration No.KL-8/Q 2648 through the Irinjalakkuda-Kodungallur public road, another motor cycle bearing registration No.KL-8/W 9155 (offending motor cycle), driven by the second respondent in a rash and negligent manner, hit the motor cycle of the appellant. The appellant sustained serious injuries 3 MACA No.3001 of 2009 including a compound comminuted fracture of left tibia and fibula, fracture on the right clavicle, fracture on 3[rd] metacarpal left hand, fracture on right temporal bone and a head injury with 3[rd] and 8[th] nerve palsy. The appellant was treated as an inpatient for a period of 26 days at the Irinjalakkuda Co-operative Hospital and at the West Fort Hospital, Thrissur. The appellant was doing business in stationeries and was earning a monthly income of Rs.4,000/-. The first respondent was the owner and the third respondent was the insurer of the offending motor cycle. The fourth respondent was the insurer of the motor cycle of the appellant. The appellant claimed a compensation of Rs.6,04,000/- from the respondents, which claim was limited to Rs.4,00,000/-. 3. The respondents 1 and 2 had filed a written statement contending that the appellant was negligent in causing the accident. 4 MACA No.3001 of 2009 4. The third respondent had filed a written statement admitting that the offending motor cycle had a valid insurance coverage. The third respondent also attributed negligence against the appellant. 5. The fourth respondent did not contest the proceedings and was set ex parte. 6. The appellant produced and marked Exts A1 to A10 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.2,04,100/-, with interest at the rate of 7% per annum from the date of petition till the date of realization and proportionate cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 9. Heard; Sri.N.Krishnankutty Pillai, the learned counsel appearing for the appellant/petitioner, Sri.K.G 5 MACA No.3001 of 2009 Balasubramanian, the learned counsel appearing for the first respondent, Smt.K.S Santhi, the learned counsel appearing for the third respondent/insurer and Sri.S.K Ajay Kumar, the learned counsel appearing for the fourth respondent. 10. 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** 11. Ext A2 final report filed by the Irinjalakkuda Police in crime No.716/2003 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the offending motor cycle. The respondents have not let in any evidence to discredit Ext A2 final report. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third 6 MACA No.3001 of 2009 respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 12. The appellant had claimed that he was doing business in stationeries and was earning a monthly income of Rs.4,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the petitioner at Rs.1,500/-. 13. 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. 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2003, I refix the notional monthly income of the 7 MACA No.3001 of 2009 appellant at Rs.4,000/-. ## **Multiplier** 15. Admittedly, the petitioner was aged 49 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 '13'. **Disability** 16. The appellant produced Ext A9 disability certificate issued by the Assistant Professor of Orthopedics, Medical College Hospital, Thrissur, who assessed the permanent disability of the appellant at 27%. The Tribunal fixed the permanent disability at 25%. 17. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that what needs to be looked into in an injury claim is the functional disability of the injured-claimant. 18. In the instant case, Ext A9 disability certificate was marked without any demur or protest from the respondents. If the Tribunal had any doubt with regard to 8 ## MACA No.3001 of 2009 the assessment in Ext A9, the Tribunal ought to have referred the appellant to a duly constituted Medical Board. After not doing the same, it was improper for the Tribunal to scale down the disability of the appellant to 25%. Therefore, I refix the functional disability of the appellant at 27%. ## **Loss due to disability** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at 4,000/-, the multiplier at 13 and functional disability at 27%, I award him an amount of **Rs.1,68,480/-** towards loss due to disability, instead of Rs.58,500/- awarded by the Tribunal. ## **Loss of earnings** 20. On a re-appreciation of Ext A9 disability certificate, it is seen that the appellant was admitted as an inpatient from 9.12.2003 to 29.3.2003. Thereafter, he was readmitted in the same hospital on 8.1.2004 and discharged on 9.1.2004. Then he was readmitted on 9 MACA No.3001 of 2009 4.8.2004 and discharged on 7.8.2004. Again he was readmitted on 5.9.2004 and discharged on 7.9.2004. All these aspects clearly prove the fact that the appellant was indisposed for nearly one year. Considering the fact that he was a businessman running a stationery shop, I hold that he was indisposed for a period of twelve months. In view of the refixation of the notional monthly income of the appellant at Rs.4,000/-, I award him an amount of Rs.48,000/- towards loss of earnings. ## **Bystander expenses and Extra Nourishment** 21. The appellant was treated as an inpatient for a period of 26 days. The Tribunal has awarded an amount of Rs.2,600/- towards Bystander Expenses, which is too meagre. 22. Considering the fact that the appellant was treated as an inpatient for a period of 26 days, I award him an amount of Rs.300/- per day for a period of 26 days towards Bystander Expenses, which amounts to **Rs.7,800/-** and Rs.150/- per day for a period of 26 days 10 MACA No.3001 of 2009 towards Extra Nourishment, which works out to **Rs.3,900/** -. ## **Loss of amenities** 23. The appellant had claimed an amount of Rs.25,000/- towards pain and sufferings and Rs.20,000/towards loss of amenities. The Tribunal awarded an amount of Rs.25,000/- each under the said heads. 24. Considering the severe nature of injuries sustained by the appellant, that he was treated as an inpatient for a period of 26 days, that he was indisposed for a period of twelve months and that he has suffered a functional disability of 27%, I award him a further amount of **Rs.25,000/-** under the head 'loss of amenities'. ## **Other heads of compensation** 25. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore- 11 MACA No.3001 of 2009 cited precedents, I hold that the appellant/petitioner is entitled for enhanced compensation as modified and recalculated 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<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|16,000/-|48,000/-| |2|Transportation<br>expenses|2,000/-|2,000/-| |3|Extra nourishment|Nil|3,900/-| |4|Bystander expenses|2,600/-|7,800/-| |5|Damage to clothing|Nil|500/-| |6|Medical expenses|75,000/-|75,000/-| |7|Pain and sufferings|25,000/-|25,000/-| |8|Loss of amenities etc|25,000/-|50,000/-| |9|Loss due to disability|58,500/-|1,68,480/-| ||Total|2,04,100/-|3,80,680/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.1,76,580/- (Rupees One Lakh Seventy Six Thousand Five Hundred and Eighty only) with interest at the rate 12 MACA No.3001 of 2009 of 7% per annum on the enhanced compensation from the date of claim petition till the date of deposit, after deducting interest for a period of 194 days, viz., the period of delay in filing the appeal and as ordered by this Court on 13.10.2021 in C.M Appln No.1/2009, and a cost of Rs.20,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and costs 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 compensation amount to the appellant, in accordance with law. Sd/- sks/16.12.2021 **C.S.DIAS, JUDGE**