SASI, S/O KOCHANDY v. ANTO K.T, VINCENT & THE UNITED INDIA INSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 22[ND] DAY OF JULY 2021/31ST ASHADHA, 1943 M.A.C.A. NO.1209 OF 2009 (AGAINST THE JUDGMENT IN OP(MV)No.1113/2005 DATED 27.11.2008 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA, THRISSUR) ## APPELLANT/PETITIONER IN O.P.(M.V): SASI, S/O.KOCHANDY, OTTARATTIL HOUSE, MARATHOMPILLY DESOM, KODAKARA VILLAGE, KODAKARA P.O., MUKUNDAPURAM TALUK, THRISSUR DIST. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS IN O.P.(M.V):: 1 ANTO K.T, KANDAMKULATHY HOUSE, POTTA, CHALAKUDY. 2 VINCENT, S/O.SEBASTIAN, ALOOR HOUSE, TIROOR, KOLAZHY VILLAGE, THRISSUR DIST. 3 THE UNITED INDIA INSURANCE CO.LTD., SIMIS COMPLEX, KURUPPAM ROAD, THRISSUR. BY ADVS. SRI.V.BINOY RAM SMT.S.JAYASREE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA No. 1209 of 2009** 2 ## **C.S.DIAS, J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1209 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated : 22[nd] July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1113 of 2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The short facts, relevant for the determination of the appeal are; on 28.11.2004, while the appellant was riding a motor cycle bearing Registration No:KL-8V/5381 through Chalakkudy-Kodakara section, a car bearing Registration No:KL-8B/3706 (offending vehicle), driven by the 2[nd] respondent in a rash and negligent manner, hit the motor cycle of the appellant. The appellant sustained serious injuries and was treated at the St.James Hospital, Chalakkudy and, **MACA No. 1209 of 2009** 3 thereafter, at Amritha Institute of Medical Sciences, Edappally for a period of twenty days. The appellant suffered a comminuted compound intercondylar fracture of left femur, fracture of the left clavicle and multiple rib fracture bilateral. The appellant was a company employee in the Appollo Tyres, Perambra and drawing a monthly income of Rs.5,000/- per month. The offending vehicle was owned by the first respondent and insured with the third respondent. The appellant claimed an amount of Rs.6,66,000/- as compensation from the respondents, which he limited to Rs.5,00,000/-. 3. The respondents 1 and 2 filed a written statement contending that the accident was caused due to the negligence on the part of the appellant. 4. The third respondent filed a written statement admitting that the offending vehicle had a valid insurance coverage, but reiterated the stand of the respondents 1 and 2 **MACA No. 1209 of 2009** 4 that the accident occurred on account of the negligence on the part of the appellant. 5. The appellant produced and marked Exts.A1 to A8 in evidence. 6. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise an amount of Rs.1,62,800/- with interest at the rate of 7% per annum from the date of filing the petition till the date of realisation and proportionate costs from the respondents. The third respondent was directed to pay the compensation amount. 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 3[rd] respondent/insurance company. 9. The learned counsel appearing for the appellant **MACA No. 1209 of 2009** 5 argued that, the Tribunal has gone wrong in fixing the income of the appellant at Rs.1,500/-. He contended that as per Ext.A6 certificate issued by the employer of the appellant, the appellant has been certified to have a loss of earnings of Rs.3,42,691/- for a period of two years, i.e. for the period from 29.11.2004 to 17.11.2006. Hence the appellant is entitled for the aforesaid amount of Rs.3,42,691/-. 10. The learned counsel for the third appearing respondent vehemently countered the contention of the learned counsel for the appellant by contending that Ext.A6 has not been proved through the author of the document. Similarly, the Tribunal has rightly adopted Rs.1,500/- as the income of the appellant, because the appellant was continuing in service and he had not suffered any loss of earnings. It is in the said circumstances, the Tribunal fixed the loss of earnings for a period of one year at Rs.1,500/- and fixed the compensation for loss of disability at Rs.1,500/- with 22% **MACA No. 1209 of 2009** 6 disability. He submitted that, there is absolutely no error in the award passed by the Tribunal, warranting interference by this court. 11. The questions that emerges for consideration in the appeal are; _(i) Whether the method adopted by the Tribunal by deducting the compensation for loss due to disability by fixing the notional income of the appellant at Rs.1,500/- per month, is justifiable?_ _(ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just?._ 12. 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 **MACA No. 1209 of 2009** 7 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. 13. As per Ext.A2- charge-sheet filed by the Kodakara police, in Crime No.475/2004 before the jurisdictional magistrate, it is found that the accident was caused solely on account of the negligence of the second respondent, who drove the offending vehicle in a rash and negligent manner. Undisputedly, the 1[st] respondent was the owner and the third respondent was the insurer of the offending vehicle. Therefore, the third respondent is liable to indemnify the first respondent for the liability caused on account of the accident. 14. The main principal area of dispute is with regard to the fixation of income of the appellant. ## **Income** 15. The appellant has categorically pleaded in column **MACA No. 1209 of 2009** 8 No.6 of the claim petition that he was earning a monthly income of Rs.5,000/-. Eventhough the appellant produced Ext.A6 certificate issued by his employer to prove that he was on earned leave from 29.11.2004 to 17.11.2006, due to the accident, he did not examine the author of the certificate in order to prove its authenticity. Therefore, the respondents were denied an opportunity to cross examine the author of the certificate, to test the genuineness of the certificate. 16. Nevertheless, going by Ext.A7 disability certificate, it can be gathered that the appellant was indisposed for a period of two years. The said certificate was marked with the consent of the respondents. In such circumstances, I accept the plea that the appellant was indisposed for a period of two years. However, in view of the appellant's own admitted statement in the claim petition that he was only earning an amount of Rs.5,000/- per month. I disbelieve the uncorroborated figure shown in Ext.A7 certificate that he was **MACA No. 1209 of 2009** 9 earning a monthly salary of Rs.8,443/-, especially when the certificate was issued on 30.11.2006, which proves that it was a self serving document for the purpose of claiming compensation. Hence, I reject Ext.A6 certificate and fix the income of the appellant at Rs.5,000/- as claimed by him in the claim petition. 17. Consequently, I fix the appellant's loss of earnings at Rs.5,000/- per month for a period of two years, i.e an amount of Rs.1,20,000/-. ## **Loss due to disability:** 18. As per Ext.A7 disability certificate, it is proved that the appellant has a disability of 22%. The Tribunal with the consent of the respondents and after seeing the appellant fixed his whole body disability at 22%, which I confirm because the same has been assessed and fixed, after seeing the appellant in person. Nevertheless, it is proved that the appellant was continuing in service and would superannuate **MACA No. 1209 of 2009** 10 from service only on attaining the age of 58 years. Hence, his disability can only be calculated after he attains the age of 58 years. Therefore, the relevant multiplier for calculating the disability would be '9'. In such circumstances, I fix the loss due to disability at Rs.1,18,800/-, i.e. Rs.5,000/- as his income, 22% as the disability and the multiplier at '9'. ## **- Clothing and extra nourishment:** 19. Eventhough the appellant had claimed damages for his clothing and compensation for extra-nourishment, the Tribunal did not award any amount under the said heads. I find that the appellant is entitled to an amount of Rs.500/towards the damages to clothing and Rs.2,000/- towards extra-nourishment. ## **Bye stander Expenses:** 20. The was treated as an appellant admittedly inpatient for a period of 20 days. The Tribunal has awarded an amount of Rs.2,000/-, i.e. Rs.100/- per day. In view of the **MACA No. 1209 of 2009** 11 fact that the accident occurred in the year 2004, I hold that Rs.200/- has to be fixed towards bye-stander expenses. Hence, I enhance the compensation to Rs.4,000/- instead of Rs.2,000/- awarded by the Tribunal. 21. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings and materials on record, I am of the opinion that the appellant is entitled for enhancement of compensation as modified and recalculated as above and given in the table below for easy 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|62,400/-|1,20,000/-| |2|Expense for transportation|2,000/-|2,000/-| |3|Medical expenses|4,900/-|4,900/-| |4|Damages to clothing|0|500/-| |5|Extra nourishment|0|2,000/-| |6|Expenses for bystander|2,000/-|4,000/-,| **MACA No. 1209 of 2009** 12 |7|Compensation for pain and<br>sufferings|25,000/-|25,000/-| |---|---|---|---| |8|Loss due to disabilities|51,500/-|1,18,800/-| |9|Loss of amenities|15,000/-|15,000/-| ||Total|1,62,800/-|2,92,200/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.1,29,400/- (Rupees One lakh twenty nine thousand four hundred only) with interest at the rate of 7% per annum on the enhanced compensation, from the date of petition till the date of deposit and proportionate cost. The third respondent shall deposit the enhanced compensation before the Tribunal with interest and proportionate costs, within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. _Sd/-_ **C.S.DIAS, JUDGE** ss