Roy v. Jayamon and Anandhakumari and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **SATURDAY, THE 27[TH] DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA, 1943 MACA NO. 3477 OF 2020** **AGAINST THE AWARD DATED 19.2.2020 IN OP(MV)NO.988/2017 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** ROY,AGED 39 YEARS, S/O. JOSEPH, KUMARIYARUPARAMBIL HOUSE, NARIYANANI P.O, PONKUNNAM, CHITHRAKADAVU VILLAGE, KOTTAYAM DISTRICT, PIN686 506 BY ADV P.C.HARIDAS ## **RESPONDENTS/RESPONDENTS:** 1 JAYAMON, S/O. MANI, KALAYATH HOUSE, KEERIKKARA, VANDIPERIYAR P.O, IDUKKI DISTRICT, PIN-685 533 2 ANANDHAKUMARI, W/O. KRISHNANKUTTY, BINEESH BHAVANAM, PAZHANIYOORKONAM, PADANILAM, PATTOOR P.O, MAVELIKKARA, ALAPPUZHA DISTRICT, PIN-6901001 3 UNITED INDIA INSURANCE COMPANY LIMITED, MULAMOOTTIL DIAMOND TOWER, MC ROAD, PANDALAM, PATHANAMTHITTA DISTRICT, PIN-689 501, REPRESENTED BY ITS MANAGER. BY ADV SMT.PREETHY R. NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 3477 OF 2020 2** ## **JUDGMENT** The appellant is the petitioner in OP(MV) No.988 of 2017 on the file of the Motor Accidents Claims Tribunal, Pala. The respondents are the respondents before the Tribunal. 2. The short facts relevant for the determination of this appeal are as follows: The accident occurred on 14.08.2017 at about 7:15 am near Attickal Kavala, Ponkunnam on Pala-Ponkunnam road. When the appellant was driving his autorickshaw bearing Reg. No. KL-34-5597 through the said road he was struck down by a Tata Sumo bearing Reg. No. KL-31-3783 driven by the 1st respondent which came from the opposite side and hit on the autorickshaw. The accident occurred due to rash and negligent driving by the 1st respondent. The appellant was admitted to General Hospital, Kanjirapally, and underwent treatment for the period from 14.08.2017 to 21.08.2017. The injuries sustained by the appellant includes fracture DCR (distal end radius), multiple abrasions on the face (right), sutured wound lower lip, 4 x 4 cm abrasion of the medial part of (left) knee, 4 x 4 cm abrasion over (right) maxillary area, wounds over lower and upper lips, lacerated wounds lateral nose, ring finger etc and multiple abrasions on face (right). ## **MACA NO. 3477 OF 2020 3** Even after discharge from the hospital, he continued the treatment for a long as an outpatient. The appellant was aged 35 years at the time of the accident. He was an autorickshaw driver earning Rs.15,000/- per month. The offending vehicle bearing Reg. No. KL-31-3783 was owned by the 2nd respondent and was insured with the 3rd respondent. The appellant claimed a total compensation of Rs. 3,20,000/- from the respondents. 3. Respondents 1 and 2 who are the driver and owner of the offending vehicle did not contest the matter before the Tribunal and they were set ex parte. The 3rd respondent insurance company filed a written statement, admitting the insurance policy of the offending vehicle at the relevant time of the accident. 4. The appellant produced and marked Exts.A1 to A13 before the Tribunal to prove his case. Ext B1 and B2 were marked from the side of the respondents. 5. The Tribunal after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, permitting the appellant to realise an amount of Rs. 1,75,407/- with 8% interest per annum with proportionate cost from the date of petition till the date of realisation. The 3rd respondent was directed to satisfy ## **MACA NO. 3477 OF 2020 4** the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the present appeal is filed. 7. Heard, Shri. P.C. Haridas, the learned counsel appearing for the appellant and also Smt. Preethi R. Nair, the learned Standing Counsel appearing for the 3rd respondent Insurance Company. 8. The sole question that arises for consideration is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 9. Ext.A1 is a copy of the FIR in Crime No.1195/2017 of Ponkunnam Police Station registered against the 1st respondent herein and Ext.A5 is the final report in the above said crime. Ext.A1 and A5 documents will show that there is negligence on the part of the 1st respondent, who was riding the offending vehicle bearing Reg. No. KL31-3783. 10. Admittedly, the 2nd respondent is the owner and the 3rd respondent is the insurer of the offending vehicle. Therefore, the 3rd respondent is bound to indemnify the liability of the 2nd respondent. 11. The appellant claimed that he is an autorickshaw driver and is aged 35 at the time of the accident and that he was having a monthly ## **MACA NO. 3477 OF 2020 5** income of Rs.15,000/-. The Tribunal fixed the notional income of the appellant at Rs.10,000/- and the appellant claimed that the Tribunal went wrong in fixing Rs.10,000/- as notional income. The reasoning of the Tribunal for fixing the said amount as notional income is that there is no strict proof regarding the fact that the appellant is an autorickshaw driver. In Ext A1 FIR and A5 Final Report, it is the specific case that the appellant was driving an autorickshaw at the time of the accident. The driving license of the appellant was also produced before the Tribunal as Exhibit A12. These documents produced by the appellant will show that the appellant was an auto driver. 12. I feel the notional income fixed by the Tribunal cannot be accepted in as much as even in the case of Coolie worker the Apex Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd [(2011) 13 SCC236]**_ has fixed the notional income at Rs.4,500/- per month in the year 2004. The Apex Court in _**National Insurance Co. Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680**_ has also recognized the principle that there would be an incremental enhancement in the case of even selfemployed individuals in the unorganized sector. Even going by the dictum laid down by the aforesaid decisions, notional income for even ## **MACA NO. 3477 OF 2020 6** a coolie worker will be Rs. 11,000/- per month. Taking into consideration the fact that the appellant was an autorickshaw driver and also the decisions referred above, I deem it appropriate to fix the notional income of the appellant at Rs. 12,500/- per month as against Rs. 10,000/- fixed by the Tribunal. 13. Under the head loss of earnings for 3 months, a total amount of Rs.75000/- was claimed and an amount of Rs.30000/- (10000 x 3) was allowed by the Tribunal on finding that there is loss of income for 3 months and by fixing the notional income per month at Rs.10,000/-. Due to the enhancement of notional income to Rs.12,500/- by this court, the amount due to the appellant under the head loss of earnings is fixed at Rs.37500/-(12500 x 3) instead of Rs.30,000/- awarded by the Tribunal. 14. Even though the appellant had claimed Rs.2,16,000/- as compensation for permanent disability, the Tribunal granted only Rs.76,800/- (10000 x 12 x 16 x 4/100 ) under this head. Exhibit A11 is the Disability Certificate certifying that he is suffering 8% total disability with partial ankylosis left wrist, range of motion limited to 70 degree dorsiflexion, 60 degree palmar flexion, 20 degree ulnar deviation and 15 degree radial deviation also rotations limited from full ## **MACA NO. 3477 OF 2020 7** pronation to 50 degree supination. Though in Exhibit A11 the disability is fixed at 8%, the Tribunal fixed the disability at 4%. The appellant is an auto driver and the disability found in Exhibit A11 Disability Certificate is 8%, which is mainly to the left wrist and I feel this will definitely affect his avocation as a driver. Therefore, I am of the opinion that the Tribunal went wrong in reducing the percentage of disability at 4% without any materials to support the same and therefore the disability of 8% certified in Exhibit A11 Disability Certificate could be taken into consideration for arriving at the compensation amount due to the appellant. Considering the age of the appellant, which was 35 years at the time of the accident and in view of the judgment in _**Sarla Verma vs. Delhi Transport Corporation [(2010 (2) KLT 802]**_ the Tribunal has correctly adopted the proper multiplier of 16. Since notional income has been increased by this Court from Rs.10,000/- to Rs. 12,500/-, and the disability has been fixed at 8%, the appellant is entitled to a total amount of Rs.1,92,000/(12500 x 12 x 16 x 8/100) as compensation for permanent disability instead of Rs. 76,800/-fixed by the Tribunal. 15. With respect to compensation awarded under other various heads, I find that the Tribunal has awarded reasonable and just ## **MACA NO. 3477 OF 2020 8** compensation. 16. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the decisions cited _**supra**_ , I am of the firm opinion that the appellant is entitled to enhancement of compensation as modified and recalculated above and as given in the table below for easy reference. |||**Amounts**<br>**modified**<br>**and**<br>**recalculated**<br>**by this**<br>**Court**<br>**(Rs.)**|| |---|---|---|---| ||||**Actual**<br>**increase as**<br>**per the**<br>**recalculation**<br>**by this Court**<br>**(Rs.)**| ||**Amount**<br>**awarded by**<br>**the Tribunal**<br>**(Rs.)**||| |**Head of Claim**|||| ||||| ||||| ||||| |Loss of earning|30000/-|37500/-|7500/-| |Transport<br>to<br>hospital|||| ||3800/-|3,800/--|-------| ||||| |Extra nourishment|1000/-|1000/-|……| |Damage to clothing|1000/-|1000/-|-------| |Medical expenses|307/-|307/-|-------| |Bystander expenses|2500/-|2500/-|-------| |Pain and suffering|40,000/-|40,000/-|-------| |Compensation for<br>disability|76,800|1,92,000/-|1,15,200| |Compensation for<br>loss of amenities|||| ||20000/-|20,000/-|—---| ||||| |**Total**|1,75,407|2,98,107**-**|1,22,700| ## **MACA NO. 3477 OF 2020 9** In the result, the appeal is allowed in part, by modifying the order of the Tribunal and enhancing the compensation by a further amount of Rs.1,22,700/- with interest at the rate of 8% per annum from the date of petition till the date of realisation with proportionate costs. The 3rd respondent shall deposit the additional compensation amount awarded in the appeal before the Tribunal with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellant/petitioner in accordance with the law. Sd/- **VIJU ABRAHAM JUDGE** pm