Sadasivan v. New India Assurance Company Ltd.

MACA NO. 2292 OF 2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943** **MACA NO. 2292 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 187/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/S:** SADASIVAN AGED 43 YEARS S/O.VASUDEVAN NAIR, MAYANILAYM, MADIYOORKONI, KALPETTA POST, VYTHIRI TALUK, WAYAND DIST BY ADV SMT.CELINE JOSEPH ## **RESPONDENT/S:** THE BRANCH MANAGER,NEW INDIA ASURANCE COMPANY LTD. M.G.T.BUILDING, KALPETTA NORTH, WAYANAD DIST-673122 BY ADV JESSY GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2292 OF 2012 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.187/2009 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondent in the appeal was the 3[rd] respondent/insurer before the Tribunal. As the 3[rd] respondent/insurer has admitted its liability, the appellant has not impleaded the respondents 1 and 2 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 sustained to him in an accident on 27.03.2009. It was his case that, while he was walking through the public road, a bike bearing registration No.KL-12 C 7867, ridden by the 1[st] respondent in a rash and negligent manner, hit the petitioner. The bike was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The petitioner sustained serious injuries including a right scaphoid fracture, Cl.III fracture right 1, Cl.II fracture. He was treated as an inpatient for a period of six days at the Leo Hospital, MACA NO. 2292 OF 2012 3 Kalpetta. The petitioner was a driver by profession and was earning a monthly income of Rs.7,500/-. Hence, the petitioner claimed a compensation of Rs.3,63,000/- from the respondents which claim was limited to Rs.1,50,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent had filed a written statement refuting the allegations in the claim petition. However, the 3[rd] respondent admitted that the motor cycle had a valid insurance policy. 5. The petitioner had produced and marked Exts.A1 to A8 in evidence. The disability certificate issued by the Medical Board attached to the District Hospital, Mananthawadi was marked as Ext.C1. 6. The Tribunal, after analysing the pleadings and materials on record allowed the claim petition in part, by permitting the petitioner to recover from the 3[rd] respondent an amount of Rs.67,700/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. MACA NO. 2292 OF 2012 4 8. Heard; Smt. Celine Joseph, the learned counsel appearing for the appellant/petitioner and Smt. Jessy Goerge, the learned counsel appearing for the respondent/3[rd] respondent/insurer. 9. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A1 FIR, Ext.A2 scene mahazer and Ext.A3 AMVI report proves that the accident occurred due to the negligence of the 1[st] respondent. The 2[nd] respondent is the owner and the 3[rd] respondent is the insurer of the motor cycle. The respondents have not let in any evidence to discredit Exts.A1 to A3 or controvert the pleadings in the claim petition. The 3[rd] respondent has also not proved that the 2[nd] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Income** 11. The petitioner had stated that he was a driver by MACA NO. 2292 OF 2012 5 profession earning a monthly income of Rs.7,500/-. For want of materials, the Tribunal fixed the monthly income of the petitioner notionally at Rs.4,000/-. 12. In **Minu Rout & Anr. vs. Satya Pradymna Mohapatra & Ors.** [2013 (10) SCC 695], the Honourable Supreme Court has fixed the notional income of a driver in the year 2006 at Rs.6,000/-. 13. Following the principles in the afore-cited decision and considering the fact that the accident occurred in the year 2009, I fix the notional monthly income of the petitioner at Rs.7,500/- as claimed in the claim petition. ## **Disability** 14. The Tribunal referred the petitioner to a duly constituted Medical Board. The Medical Board as per Ext.C1 medical certificate has assessed the petitioner's disability at 5%, which was accepted by the Tribunal. I confirm the said finding. ## **Multiplier** 15. As per Ext.A6 driving license, the petitioner was born on 25.05.1968. The accident occurred on 27.03.2009. MACA NO. 2292 OF 2012 6 Therefore, it was before the petitioner completed the age of 40 years, the accident occurred. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant multiplier to be adopted is “15”. ## **Loss due to disability** 16. In view of the above mentioned factors, namely, monthly income of the petitioner at Rs.7,500/-, his functional disability at 5% and the multiplier at '15', I award him compensation for “loss due to disability” at Rs.67,500/- instead of Rs.36,000/- awarded by the Tribunal. ## **Loss of earnings** 17. The Tribunal found that the petitioner was indisposed for a period of three months. On a perusal of Ext.A5 wound certificate and Ext.C1 disability certificate, it is found that the petitioner had sustained a fracture of the lower end of his right radius. He is found to be suffering from partial ankylosis of the right with terminal restriction. Being a driver by profession, certainly, the above injuries has caused him to be indisposed for a period of four months. Thus, I hold that the petitioner was indisposed for a period of four months. MACA NO. 2292 OF 2012 7 18. In view of the refixation of the notional monthly income of the petitioner at Rs.7,500/-, I award him an amount of Rs.30,000/- towards ‘loss of earnings’, instead of Rs.12,000/awarded by the Tribunal. ## **Medical expenses** 19. The petitioner had produced the medical bills to prove that he had expended an amount of Rs.11,000/-. The Tribunal fixed the expenditure at Rs.7,500/- which again is wrong. In view of the admitted medical bills on record, I award the petitioner an amount of Rs.11,000/- towards the 'medical expenses'. ## **Bystander expenses and Extra nourishment** 20. The petitioner was treated as an inpatient for a period of six days in the year 2009. Therefore, I award him an amount of Rs.500/- per day for a period of six days towards 'bystander expenses', which works out to Rs.3,000/- and Rs.250/- per day for a period of six days towards 'extra nourishment', which works out to Rs.1,500/-. ## **Pain and sufferings and loss of amenities** 21. It is proved and established that the petitioner was MACA NO. 2292 OF 2012 8 treated as an inpatient for a period of six days, that he was indisposed for a period of four months, that he has suffered a functional disability of 5%. Therefore, I award him a further amount of Rs.12,000/- and Rs.3,000/- respectively, under the heads 'pain and suffering and loss of amenities'. 22. With respect to the compensation awarded under the heads transportation expenses and clothing, I find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [448 x 187] 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 12,000 30,000<br> 2. Transportation expenses 500 500<br>3. Clothing 500 500<br>**----- End of picture text -----**<br> MACA NO. 2292 OF 2012 9 **==> picture [448 x 297] intentionally omitted <==** **----- Start of picture text -----**<br> 4. Bystander expenses 600 3,000<br>5. Extra nourishment 600 1,500<br>5. Medical expenses 7,500 11,000<br>6. Pain and sufferings 8,000 20,000<br>7. Loss of amenities 2,000 5,000<br>8. Loss due to disability 36,000 67,500<br>Total 67,700 1,39,000<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.71,300/- with interest @ 7.5% per annum from the date of petition till the date of deposit, after deducting interest for a period of 157 days i.e. the period of delay in filing the appeal and as ordered by this Court on 08.10.2021 in C.M.Appln. No.2/2012, and a cost of Rs.7,500/-. The 3[rd] respondent is ordered to deposit the enhanced compensation amount 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 MACA NO. 2292 OF 2012 **==> picture [13 x 9] intentionally omitted <==** compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/21.01.22