Rossy Varghese v. Satheesan, Francy and The New India Assurance Company Limited

``` 2025:KER:28018 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` THURSDAY, THE 20[TH] DAY OF MARCH 2025/29TH PHALGUNA, 1946 ``` ``` MACA NO. 1328 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 31.08.2013 IN OPMV NO.445 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR. ``` ## **`APPELLANT:`** ``` ROSSY VARGHESE, W/O.VARGHESE, RESIDING AT THARUKARA HOUSE, AISWARYA NAGAR, OLARIKKARA P.O, PULLAZHI, THRISSUR. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS:`** - **`1 SATHEESAN, S/O.PADMANABHA PISHARADY, RESIDING AT THOPPIL PISHARAM, P.O KUTTOOR, NEAR PUTHUSSERY TEMPLE, THRISUSR - 680 013.`** - **`2 FRANCY, S/O.VAREED, RESIDING AT ALAPADAN HOUSE, MULAMKUNNATHUKAVU, THRISSUR - 680 581.`** - **`3 THE NEW INDIA ASSURANCE COMPANY LIMITED, PERINCHERY BUILDING, ROUND NORTH, THRISSUR - 680 001.`** M.A.C.A.No.1328 of 2014 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:28018 ``` **==> picture [23 x 10] intentionally omitted <==** ``` BY ADV SMT.P.LISSY JOSE. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1328 of 2014 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:28018` ``` -3- ``` ## **J U D G M E N T** ## (Dated this the 20[th] day of March, 2025) The petitioner in O.P.(M.V.) No.445/2007 on the file of the Motor Accident Claims Tribunal, Thrissur is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 16.01.2007. According to the petitioner, on 16.01.2007 at about 2.30 p.m., while he was travelling in an autorickshaw along the Thrissur-Shornur road, the driver of the autorickshaw abruptly turned towards left and as a result of which autorickshaw capsized and she sustained injuries. 3. The 1[st] respondent is the owner, the 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.4,75,600/- limited to Rs.4,00,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the documentary M.A.C.A.No.1328 of 2014 ``` 2025:KER:28018 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -4- ``` evidence Exts.A1 to A10. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.1,53,700/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri.T.C.Suresh Menon, the learned Counsel appearing for the petitioner/appellant, and Smt.P.Lissy Jose, the learned Standing Counsel for the 3[rd ] respondent. 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. As per the claim petition, the petitioner was working as a coolie, earning Rs.3,300/- per month. The Tribunal also fixed his monthly income at Rs.3,000/-. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the M.A.C.A.No.1328 of 2014 ``` 2025:KER:28018 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -5- ``` notional income of a coolie, in the year 2007 will come to Rs.6,000/-. Therefore, the learned counsel prayed for fixing the notional income of the petitioner at Rs.6,000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. Since the notional income of a coolie, in the year 2007 will come to Rs.6,000/-, in order to award just and reasonable compensation, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in **Ramachandrappa (supra)** , the notional income of the petitioner is liable to be fixed as that of a coolie, at Rs.6,000/-. 12. In the accident the petitioner sustained the following injuries: ## _a) Head injury_ - _b) Lacerated wound on right tempero parietal region_ - _c) Fracture right temporal bone_ - _d) Subdural Heomatoma left fronto temporal_ - _e) Cerebral edema_ 13. Ext.A8 disability certificate shows that the petitioner suffered 10% permanent physical disability. It was issued by the consultant neuro surgeon -Nimhans. In Ext.A8 it is stated that the petitioner has impairment of vision, and it is unlikely to improve. He also stated that there is also a risk of epilepsy for the petitioner and that he has assessed the disability as per the Mc Bride Scale at 10%. The Tribunal, however, scaled down the percentage of disability of the M.A.C.A.No.1328 of 2014 ``` 2025:KER:28018 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -6- ``` petitioner to 7%, without assigning valid and cogent reasons. 14. The law is settled that, if the Tribunal is not satisfied with the disability certificate produced by the petitioner, the remedy is to refer him to a medical board or higher Authority.(See **Manikantan G. v. Janardhanan Nair and Others** , 2021 (5)KHC 305). Having not done so, the Tribunal was not justified in scaling down the percentage of disability from what is shown in the disability certificate. I do find any grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 10%. 15. Since, on the date of accident, the petitioner was aged 65 years, there is no scope for any future prospects and the multiplier to be applied is 7, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.50,400/- 16. Towards loss of earning, the tribunal has awarded only Rs.9,000/- being the income for 3 months @Rs.3,000/-. Considering the nature of the injuries sustained and the percentage of disability suffered by the petitioner, the petitioner might have lost income at least for a period of 6 months. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs.36,000/- (6,000 x 6 months). 17. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.20,000/- and towards 'extra nourishment' Rs.2,800/- M.A.C.A.No.1328 of 2014 ``` 2025:KER:28018 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -7- ``` was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 18. The petitioner sustained serious injuries in the accident and was treated as inpatient for 28 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’ and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.50,000/- and 5,000/- respectively. 19. Towards loss of amenities the tribunal has not awarded any compensation. Considering the nature of injuries sustained by the petitioner, I hold that, towards ‘loss of amenities’ Rs.30,000/- can be awarded. 20. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 21. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.2,75,300/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No**<br>**.**|**Head of Claim**|**Amount awarded**<br>**by Tribunal (in**<br>**Rs.)**|**Amount**<br>**Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|9,000/-|36,000/-| |2|Medical expenses|87,300/-|87,300/-| M.A.C.A.No.1328 of 2014 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:28018` ``` -8- ``` |3|Bystander expenses|5,600/-|5,600/-| |---|---|---|---| |4|Transportation<br>expenses|500/-|500/-| |5|Extra nourishment|2,800/-|5,000/-| |6|Damage to clothing|500/-|500/-| |7|Pain and sufering|20,000/-|50,000/-| |8|Disability<br>Loss of earning power<br>Loss of amenities|18,000/-<br>10,000/-<br>---|50,400/-<br>10,000/-<br>30,000/-| ||**Total**|1,53,700/-|**2,75,300**| ||Enhanced Rs.1,21,600/-||| 22. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.2,75,300/(Rupees two lakhs seventy five thousand and three hundred only), less the amount already deposited, if any, along with interest @ 8% per annum, from the date of the petition till deposit/realisation, excluding interest for a period of 118 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- ## **C. PRATHEEP KUMAR, JUDGE** ADS