Saji Paul v. M.K. Ajayan, P.T. Johny and The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** **MACA NO. 2570 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 2322/2002 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/S/PETITIONER:** **SAJI PAUL S/O PAUL K.J KULANGARA KANADY HOUSE, OLLUR, AVINISSERY.P.O, THRISSUR.** **BY ADV SRI.DILIP J. AKKARA** ## **RESPONDENT/S/RESPONDENTS:** - **1 M.K.AJAYAN S/O KUMARAN, MANCHERY HOUSE, KAIPARAMBA.P.O, THRISSUR.** - **2 P.T. JOHNY, S/O. THOMAS, PURUTHOOR HOUSE, MUNDUR, THRISSUR.** - **3 THE NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, ANUGRAHA BUILDING, WADAKKANCHERRY ROAD, KUNNAMKULAM.** **BY ADV SRI.P.K.BABU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2570 OF 2009** **2** ## **C. S. DIAS, J.** **----------------------------------------M.A.C.A.No.2570 of 2009** **------------------------------------** Dated this the 5[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.2322 of 2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The concise case in the claim petition, relevant for the determination of the appeal are: on 13.04.2002, while the appellant was driving a car through the public road and when he reached Mazhuvanchery, a lorry bearing registration No. KL 10/E 5131 (offending vehicle) driven by the second **MACA NO. 2570 OF 2009** **3** respondent in a rash and negligent manner hit the car of the appellant. The appellant sustained serious injuries and was treated at the Amala Hospital, Thrissur. The accident occurred only on account of the rash and negligent driving of the offending vehicle by the second respondent. The offending vehicle was owned by the first respondent and insured with the third respondent. The appellant was a Managing Director in an advertising firm and earning a monthly income of Rs.12,000/-. He claimed a total compensation of Rs. 2 Lakh from the respondents. 3. The first respondent did not contest the proceedings. Although the second respondent entered appearance, no written statement was filed. **MACA NO. 2570 OF 2009** **4** 4. The third respondent filed a written statement admitting the offending vehicle had a valid insurance policy. However, it was contended that the third respondent was not liable to pay any amount as compensation as the accident occurred on account of the negligence of the appellant. The age, income and occupation of the appellant was also disputed. 5. The appellant marked Exts.A1 to A14 in evidence. The third respondent marked Ext.B1 copy of the insurance policy in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award, allowed the claim petition, in part, by directing the third respondent to pay an amount of Rs.61,000/- as compensation with interest at the rate of 7% per **MACA NO. 2570 OF 2009** **5** annum from the date of petition till the date of actual payment along with proportionate costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned Counsel appearing for the appellant/petitioner and the learned Counsel appearing for the third respondent, Insurance Company. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. A Constitution Bench of the Hon'ble Supreme Court in National Insurance Company Ltd. **MACA NO. 2570 OF 2009** **6** 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. 11. Ext.A3 charge sheet filed by the Kunnamkulam police after investigation substantiates that the accident occurred on account of the negligence of the second respondent. Admittedly, the offending vehicle was owned by the first respondent and insured with the third respondent. Therefore, it **MACA NO. 2570 OF 2009** **7** is the third respondent, who is liable to indemnify the first respondent of his liability to pay compensation. ## **Income** 12. The appellant had claimed to be the Managing Director of an Advertising Firm. Even though he averred that he was earning a monthly income of Rs.12,000/-, the Tribunal fixed an amount of Rs.5,000/- per month as his notional income. The appellant had produced Ext.A8 Saral form in order to prove his income. As per Ext.A8, the appellant was earning an amount of Rs.72,550/- per annum for the assessment year 2001 – 2002. Going by Ext.A8, it is seen that the appellant was having a monthly income of Rs.6,045/-. Hence, I fix the monthly income of the appellant at Rs.6,045/- instead of Rs.5,000/- fixed by **MACA NO. 2570 OF 2009** **8** the Tribunal. ## **Disability** 13. The appellant had claimed that he had a permanent disability of 18%. Nonetheless, the appellant did not examine the Doctor who issued Ext.A13 disability certificate or availed a benefit of getting his disability assessed by a duly constituted medical board. 14. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)]., the Hon'ble Supreme Court has held that a mere production of the disability certificate is irrelevant and inconsequential unless the doctor who issued the certificate is examined in Court. Otherwise, the injured can always avail the benefit of getting his disability assessed by duly constituted **MACA NO. 2570 OF 2009** **9** medical board. 15. In the instant case, the appellant did not examine the doctor who issued Ext.A13 disability certificate or get himself examined by a duly constituted medical board. Therefore, the course adopted by the Tribunal in not awarding compensation on account of the loss due to disability is correct and in accordance with law. ## **Loss of earnings** 16. The Tribunal, on the basis of Ext.A2 wound certificate and Ext.A6 discharge summary, found that the appellant was incapacitated for a period of three months. Accordingly, an amount of Rs.15,000/- was awarded as compensation for loss of earnings. In view of the re-fixation of the notional income of the **MACA NO. 2570 OF 2009** **10** appellant at Rs.6,045/-, I re-fix the compensation for 'loss of earnings' at Rs.18,135/-, instead of 15,000/awarded by the Tribunal. ## **Pain and sufferings** 17. On a perusal of Ext.A2 wound certificate and Ext.A6 discharge summary, it is seen that the appellant had lost 4 teeth, suffered a fracture radius and fracture on his nasal bone along with head injuries. He was treated as an in-patient for a period of ten days. In such circumstances, I am of the firm opinion that the compensation awarded under the head 'pain and sufferings' fixed by the Tribunal is on the lower side. Hence, I enhance the compensation under the head 'pain and sufferings' by a further amount of Rs.10,000/-, i.e, total a amount of **MACA NO. 2570 OF 2009** **11** Rs.20,000/-. Similarly, even though the appellant had claimed compensation for disfigurement at Rs.15,000/-, the Tribunal only awarded an amount of Rs.10,000/-. 18. In the light of the fact that the appellant had lost four of his teeth and suffered a fracture on his nasal bone, I am convinced that the Tribunal ought to have awarded the appellant atleast an amount of Rs.25,000/- under the head loss due to disfigurement. Hence, I re-fix the compensation, though named as compensation for 'discomfiture' as compensation for disfigurement at Rs.25,000/- . 19. With respect to the other heads of compensation, I find that the Tribunal had awarded reasonable and just compensation. **MACA NO. 2570 OF 2009** **12** 20. On and overall re-appreciation of the pleadings, materials on record and the law laid down on the aforesaid decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified above by a further amount of Rs.28,135/-, (Rupees Twenty Eight Thousand One Hundred and Thirty Five only) i.e., further amount of Rs.3,135/- under the head 'loss of earnings', Rs.10,000/- under the head 'pain and sufferings' and Rs.15,000/- under the head 'loss due to disfigurement'. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.28,135/- (Rupees Twenty Eight Thousand One Hundred and Thirty Five only) with interest at the **MACA NO. 2570 OF 2009** **13** rate of 7% per annum from the date of claim petition to the date of deposit, after deducting the period of forty five days, i.e, the period of delay in filing the appeal and as ordered by this Court on 31.03.2021 C.M.Appl.No.3035 of 2009, and proportionate costs. The third 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 disburse the enhanced compensation amount to the appellant, in accordance with law. **Sd/-** **C.S.DIAS, JUDGE** RK/06.07.2021