Sasikumar (deceased) and others v. The Partner, M/s Ajanta Traders and Oriental Insurance Company Ltd.

1 MACA No.1350 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 MACA NO. 1350 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 23/2004 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/S:** 1 SASIKUMAR,(EXPIRED) S/O.UNNICHEKKAN CHERUVARUMMEL HOUSE, MANAKULANGARA,, KODAKARA. 2 ADDL.2. REMANI, W/O.LATE SASIKUMAR, AGED 56 YEARS CHERUVARUMMEL HOUSE, MANAKULANGARA,, KODAKARA. 3 ADDL.3. SIVAPRASAD, S/O.LATE SASIKUMAR, AGED 22 YEARS CHERUVARUMMEL HOUSE, MANAKULANGARA,, KODAKARA. 4 ADDL.4. VISHNU PRASAD, S/O.LATE SASIKUMAR, AGED 20 YEARS CHERUVARUMMEL HOUSE, MANAKULANGARA,, KODAKARA. (ADDL.APPELLANTS 2 TO 4 ARE IMPLEADED BEING THE LRs OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 7.10.2021 IN IA 3/2021) BY ADV SRI.T.N.MANOJ ## **RESPONDENT/S:** 1 THE PARTNER, M/S.AJANTHA TRADERS M.C ROAD, KOTTAYAM. 2 YOHANNANA, S/O THOMAS PUTHANPARAMBIL, CHINGAVANAM,, NATTAGAM, KOTTAYAM. 3 THE MANAGER ORIENTAL INSURANCE COMPANY LTD.,, MALLETHERA BUILDINGS, IIIRD FLOOR,, BAKERY JUNCTION, KOTTAYAM. BY ADV SMT.LATHA SUSAN CHERIAN **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1350 of 2009 ## **C.S DIAS,J.** **--------------------------MACA No.1350 of 2009** **----------------------------Dated this the 7[th] day of October, 2021.** ## **JUDGMENT** The original appellant was the petitioner in O.P.(MV) No.23/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are: on 06.02.2003, while the original appellant was doing a painting job on the side of the National Highway, a mini lorry bearing registration No.KL-5/..7641 driven by the 2[nd] respondent in a rash and negligent manner, hit the original appellant. The original appellant sustained serious injuries and was treated at the Heart Hospital at Thrissur. He suffered a compound 3 MACA No.1350 of 2009 fracture of the lower end of the right femur. He was treated as an inpatient for a period of 13 days and had to undergo wound debridement and an open deduction of internal fixation. The original appellant was a painter by profession and earning a monthly income of Rs.4,000/-. The mini lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the original appellant claimed a total compensation of Rs.2,50,000/from the respondents. 3. The respondents 1 & 2 did not contest the proceedings and were set ex parte. The 3[rd ] respondent filed a written statement admitting that the mini lorry had a valid insurance coverage. 4. The original appellant produced and marked Exts.A1 to A6 in evidence. The 3[rd] respondent produced and marked Ext.B1 insurance policy in evidence. 5. The Tribunal, after analysing the pleadings and 4 MACA No.1350 of 2009 materials on record, allowed the claim petition in part by permitting the original appellant to realise an amount of Rs.1,39,600/- from the respondents with interest @ 7% per annum from the date of petition till the date of realisation and Rs.5,000/- as cost. The 3[rd] respondent was directed to pay the compensation amount. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner/original appellant filed the appeal. 7. During the pendency of the appeal, the original appellant had expired. However, without realising this aspect, this Court by judgment dated 28.7.2021 had allowed the appeal. Consequently, the additional appellants 2 to 4 filed RP 628/2021 seeking to recall the judgment as the original appellant expired on 15.5.2015. This Court had allowed the review petition and recalled the judgment by order dated 4.10.2021. Thereafter the 5 MACA No.1350 of 2009 additional appellants 2 to 4 have been impleaded as per the order dated 7.10.2021 in IA 3/2021. 8. Heard: Sri.T.N Manoj, the learned counsel appearing for the additional appellants 2 to 4 and Smt.Latha Susan Cherian, the learned counsel appearing for the third respondent – Insurance Company. 9. The sole question that arises for consideration is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Ext.A2 charge sheet filed by the Peechi Police Station in Crime No.38/2003 proves that the accident occurred solely on account of the negligence of the 2[nd] respondent, who drove the mini lorry in a negligent manner. Admittedly, the 1[st] respondent was the owner and 3[rd] respondent was the insurer of the mini lorry. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent by paying the compensation to the original 6 MACA No.1350 of 2009 appellant. 11. The original appellant had claimed that he was a painter by profession. The Tribunal, fixed the notional income of the original appellant at Rs.1,500/- per month. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], the Honourable Supreme court had fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. ## **Notional Income** : 13. Following the ratio in the aforesaid decision and taking note of the fact that the accident occurred in the year 2003, I fix the notional income of the original appellant at Rs.4,000/- per month. 14. The original appellant has produced Ext.A5 disability certificate in evidence. The Tribunal accepted Ext.A5 disability certificate, wherein it was certified that the 7 MACA No.1350 of 2009 original appellant has a permanent disability of 27%. Nevertheless, the Tribunal converted the limb disability and treated the whole body disability at 13.5%. This exercise according to me is erroneous because what has to be looked into is the functional disability of the original appellant as laid down in **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620]. 15. Admittedly, the original appellant was a painter by profession and it is proved that he has a shortening of his right leg. Therefore, so far as the claim is concerned, the whole body disability is immaterial because the original appellant is found to be having functional disability. Hence, I accept the certification made in Ext.A5 disability certificate that the original appellant has permanent body disability/functional disability at 27%. Accordingly, I set aside the finding of the Tribunal that the original appellant has whole body disability of only 13.5% and re-fix his 8 MACA No.1350 of 2009 functional disability at 27% as certified in Ext.A5. ## **Multiplier** : 16. As the original appellant was aged 39 years at the time of accident, the relevant multiplier is '15' in view of the law laid down **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802]. ## : **Loss due to disability** 17. In view of the re-fixation of the notional income of the original appellant at Rs.4,000/-, his disability at 27%, the multiplier at 15, I hold that the original appellant is entitled for compensation for loss due to disability at Rs.1,94,400/- instead of Rs.38,900/- fixed by the Tribunal. ## : **Loss of earnings** 18. It is proved through Exts.A3 wound certificate and A4 discharge summary that the original appellant had sustained a compound fracture of the lower end of the right femur and he was treated as an inpatient for a period 9 MACA No.1350 of 2009 of 13 days. He also underwent a surgery for wound debridement and open deduction internal fixation. Bone grafting was also done. Therefore, necessarily the original appellant was indisposed for a period of four months. 19. In view of the re-fixation of the notional income of the original appellant at Rs.4,000/- per month and holding that he was indisposed for a period of four months, I re-fix his loss of earnings at Rs.16,000/- instead of 6,000/awarded by the Tribunal. 20. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 21. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the aforesaid decisions, I am of the definite opinion that the appellants are entitled for enhancement of compensation as modified and recalculated above and given in the table below for 10 MACA No.1350 of 2009 ## easy reference: |SI.<br>No|Head of claim|Amounts<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated by<br>this Court<br>(in rupees)| |---|---|---|---| |1.|Loss of earnings|6,000|16,000| |2.|Bystander expenses|1,300|1,300| |3.|Pain and suffering|15,000|15,000| |4.|Loss of amenities|5,000|5,000| |5.|Future treatment|5,000|5,000| |6.|Loss due to disability|38,900|1,94,400| |7.|Medical Expenses|67,900|67,900| |8.|Transportation<br>Expenses|500|500| ||**Total**|**1,39,600**|**3,05,100**| In the result, I allow the appeal, in part, by enhancing the compensation by a further amount of Rs. **1,65,500/-** (Rupees One Lakh Sixty Five Thousand Five Hundred Only) with interest @ 7% per annum on the enhanced compensation from the date of petition till the date of deposit, after deducting the period of 19 days i.e., the period of delay in preferring the appeal and as ordered by **==> picture [12 x 9] intentionally omitted <==** MACA No.1350 of 2009 this Court on 19.03.2021 in C.M.Appln.No.1544 of 2009, and proportionate cost. The 3[rd] respondent-insurance company shall deposit the aforesaid amount before the Tribunal with interest and proportionate cost within a period of 60 days from the date of receipt of a copy of this judgment. The Tribunal shall disburse the enhanced compensation with interest and cost to the appellants 2 to 4 in the ratio of 50:25:25 and in accordance with law. Sd/- Sks/7.10.2021 **C.S.DIAS, JUDGE**