Saidalavi M v. Babu; Santosh (Deleted); National Insurance Co., Kalpetta (MACA No.1615 of 2009)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 28[TH] DAY OF JUNE 2021/7TH ASHADHA, 1943 MACA NO.1615 OF 2009 (AGAINST THE AWARD DATED 19.11.2008 IN OP(MV)No.292/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA, WAYANAD) ## APPELLANT/PETITIONER: SAIDALAVI.M, AGED 43 YEARS, S/O.MUHAMMED, MACHINGAL HOUSE, KATTAYAD P.O., VELLAMUNDA, MANANTHAVADY TALUK, WAYANAD DISTRICT. BY ADV SRI.N.J.ANTONY ## RESPONDENTS/(RESPONDENTS): 1 BABU, AGE NOT KNOWN, S/O.OUSEPH, PUTHIYEDATH HOUSE, THARUVANA P.O., (DRIVER OF LORRY NO.KL-08 W/9212., D.L.NO. NOT KNOWN) *2 K.SANTHOSH, AGE NOT KNOWN, S/O.NOT KNOWN, KANAKKASSERY HOUSE, IRINJALAKUDA P.O., THRISSUR DISTRICT., OWNER OF LORRY NO.KL-08 W/9212).( DELETED) 3 NATIONAL INSURANCE CO.KALPETTA, (POLICY NO.NOT KNOWN). RESPONDENT NO.2 DELETED RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 29/3/2021 IN I.A.NO.1/2021 IN THE MACA NO.1615/2009. BY ADV SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _MACA NO.1615/2009_ :2: ## **C.S.DIAS, J** - - - - - - - - - - - - - - - - - - - - - - MACA No. 1615 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated : 28[th] June, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.292 of 2004 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondents in the claim petition are the respondents in the appeal. 2. This court by order dated 29.3.2021 in I.A.No.1 of 2021 had deleted the 2[nd] respondent from the party array. The parties are, for the sake of convenience, referred to as per the status in the claim petition. 3. The concise facts in the claim petition, relevant for the determination of the appeal are: on 17.02.2004 while the petitioner was travelling in a lorry bearing registration No.KL-08W/9212 (offending vehicle), driven by the 1[st] respondent, when the vehicle reached Pullanhimedu on the Wayanad-Kozhikode road, the 1[st] respondent lost control of the vehicle and it hit on the traffic divider and capsized. The petitioner sustained serious injuries in the accident and was treated at the District Hospital, Mananthavady from 17.2.2004 till 13.3.2004. The petitioner was a driver by profession and earning a monthly income of _MACA NO.1615/2009_ :3: Rs.5,000/-. The 2[nd] respondent was the owner of the vehicle and the 3[rd] respondent is the insurer. The petitioner contended that the respondents are jointly and severally liable to pay compensation to him, which he quantified at Rs.2,00,000/-. 4. The 2[nd] respondent did not contest the proceedings and was set ex-parte. The 1[st] respondent filed a written statement, refuting the allegations in the claim petition. He also disputed the compensation claimed under the various heads. 5. The 3[rd] respondent filed a written statement admitting that the lorry had a valid insurance policy. However, it was contended that the amount of compensation claimed under different heads was excessive. 6. The petitioner was examined as PW1 and Exts.A1 to A5 were marked in evidence. The disability certificate issued by the District Medical Board, Wayanad was marked as Ext.C1. 7. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 3[rd] respondent to pay the petitioner an amount of Rs.65,950/with interest at the rate of 6% per annum from the date of filing the petition till the date of payment along with proportionate costs. 8. Dissatisfied with the quantum of compensation awarded by the _MACA NO.1615/2009_ :4: ## Tribunal, the appellant/petitioner is in appeal. 9. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3[rd] respondent/insurance company. 10. The questions that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?. 11. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 12. Ext.A1-FIR and Ext.A2-scene mahazar substantiates that the accident occurred due to the negligence on the part of the 1[st] respondent in driving the lorry. Undisputedly, the lorry was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Therefore, the 3[rd] respondent is liable to indemnify the 2[nd] respondent of its liability to pay compensation to the petitioner. 13. Ext.A3 discharge certificate proves that the petitioner was _MACA NO.1615/2009_ :5: hospitalised from 17.2.2004 to 13.3.2004, i.e. for a period of 23 days. He suffered a compression fracture of T-12 and L-3 vertebra. A duly constituted Medical Board by Ext.C1 has certified the petitioner's permanent whole body disability at 15%, which was accepted by the Tribunal. 14. The main area of dispute is regarding the notional income of the petitioner fixed by the Tribunal. 15. The petitioner had claimed that he was a driver by profession and earning a monthly income of Rs.5,000/- per month. However, the Tribunal fixed the notional income of the petitioner at Rs.2,100/-. 16. 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. ## **Notional income** 17. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decision and considering that the petitioner was a driver by profession and aged 43 years at the time of the accident and that he had claimed that he had an income of Rs.5,000/- per month, I am of the considered opinion that the petitioner's notional income can safely be fixed at Rs.5,000/- per month. Hence, I re-fix the petitioner's notional income at _MACA NO.1615/2009_ :6: Rs.5,000/- per month. ## **Loss of earnings** 18. Eventhough the petitioner had claimed that he was incapacitated for a period of six months i.e. from 17.2.2004 to 16.8.2004, the Tribunal only fixed the loss of earnings for a period of one month, which according to me is unreasonable. Going by the injuries in Ext.A3 discharge certificate and Ext.C1-disability certificate, I am of the firm opinion that the petitioner's loss of earnings has to be fixed for a period of three months at the rate of Rs.5,000/- per month. Hence, I enhance the compensation under the head 'loss of earnings' at Rs.15,000/- instead of Rs.2,000/awarded by the Tribunal. ## **Pain and sufferings** 19. The petitioner had claimed compensation under the head pain and sufferings at Rs.25,000/-. However, the Tribunal awarded only an amount of Rs.5,000/-. Again on an appreciation of Ext.A3 discharge certificate and Ext.C1 disability certificate and the fact that the petitioner was hospitalized for a period of 23 days and incapacitated for a period of three months, I am of the definite opinion that the petitioner should be awarded compensation under the head 'pain and sufferings' at Rs.15,000/-. _MACA NO.1615/2009_ :7: ## **Multiplier** 20. The appellant was aged 43 years at the time of the accident and the relevant multiplier is '14' instead of '15' fixed by the Tribunal. Hence, I re-fix the multiplier at '14'. ## **- Bye stander expenses & Extra Nourishment** 21. Undisputedly, the petitioner was hospitalised for a period of 23 days from 17.2.2004 to 13.3.2004. The Tribunal awarded only a meagre amount of Rs.500/- as bye-stander expenses. In the light of the fact that the accident was of the year 2004, I feel that an amount of Rs.250/- has to be fixed as by-stander expenses. Hence, I hold that the petitioner is entitled for by-stander expenses at Rs.5,750/-. I am also of the opinion that the petitioner is entitled for extra nourishment at Rs.2,000/- instead of Rs.500/- awarded by the Tribunal. ## **Other Heads of Claim** 22. With respect to the other heads of claim, 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 laid down in the afore-cited decisions, I am of the firm opinion that the petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy _MACA NO.1615/2009_ :8: ## reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|2,000/-|15,000/-| |2|Expense for transportation|500/-|500/-| |3|Medical expenses|500/-|500/-| |4|Damages to clothing|250/-|250/-| |5|Extra nourishment|500/-|2,000/-| |6|Expenses for bystander|500/-|5,750/-,| |7|Compensation for pain and<br>sufferings|5,000/-|15,000/-| |8|Loss due to disabilities|56,700/-|1,26,000/-| ||Total|65,950/-|1,65,000/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.99,050/- (Rupees Ninety nine thousand fifty only) with interest at the rate of 6% per annum on the enhanced compensation, from the date of petition till the date of deposit, _MACA NO.1615/2009_ :9: after excluding the period of 134 days i.e. the period of delay that has occurred in filing the appeal and as ordered by this court on 29.3.2021 in C.M.Application No.1844/2009, along with proportionate cost. The 3[rd] respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall release the enhanced compensation to the petitioner in accordance with law. **Sd/-** **C.S.DIAS JUDGE** ss