Satheesh v. P.R.Vasu, Chandran and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 18[TH] DAY OF JANUARY 2022 / 28TH POUSHA, 1943** ## **MACA NO. 1081 OF 2011** **AGAINST THE AWARD DATED 26.04.2010 IN OPMV 621/2003 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** SATHEESH, S/O KARAPPUNNY PADINJAPPURAM HOUSE, NOW RESIDING AT, C/O.VASANTHA, MEDAKKAL HOUSE, KANJIRANGADI,, KOORKKANCHERY, THRISSUR. BY ADV SRI.T.C.SURESH MENON ## **RESPONDENTS/RESPONDENTS:** - 1 P.R.VASU, S/O RAMASWAMY, POKKATH HOUSE, PANDIYODE, KANNADI, PALAKKAD DISTRICT. - 2 CHANDRAN, S/O.CHAMIYAR APPALAM HOUSE, PERUVAMBA. - 3 UNITED INDIA INSURANCE CO LTD BRANCH OFFICE -3 ,4TH FLOOR, 205 BUILDING, ST BANK ROAD, COIMBATORE -18. BY ADV SMT.S.JAYASREE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1081 OF 2011 2** ## **JUDGMENT** The appellant was the petitioner in O.P (MV) No.621/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents 1 to 3 before the Tribunal. As the third respondent has admitted the insurance policy, the appellant has not impleaded respondents 4 and 5 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their 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 05.12.2002. It was his case that, on the above said date, while he was driving a van bearing registration No. KL 9 K 1926 through the ThrissurPalakkad National Highway, a tanker lorry bearing registration No. KLP 4577, driven by the second ## **MACA NO. 1081 OF 2011 3** respondent in a rash and negligent manner, hit the van. The petitioner sustained multiple injuries, including a fracture of his right hip. He was treated at the Cresent Hospital, Alathur and at the Elite Mission Hospital, Koorkenchery for a period of 23 days. The petitioner was a driver by profession and was earning a monthly income of Rs. 4000/-. The first respondent was the owner and the third respondent was the insurer of the lorry, and the fourth respondent was the owner and the fifth respondent was the insurer of the van. Hence, the appellant claimed a compensation of the Rs.1,97,000/from the respondents. 3. The other injured in the same accident also filed O.P(M.V.) Nos.622, 3017, 3018, 3019 and 3052/2003 before the same Tribunal. 4. The respondent Nos. 3 and 5 contested all the claim petitions. The other respondents were set exparte. 5. The third respondent had filed written statements in all the claim petitions, inter alia, refuting the ## **MACA NO. 1081 OF 2011 4** allegations in all the claim petitions. It was their case that the accident occurred due to the negligence of the petitioner. However, the third respondent had admitted that the lorry had a valid insurance policy. The third respondent had also stated that the compensation claimed in all the claim petitions were excessive. 6. The fifth respondent had also filed written statements in all the claim petitions contending that as per the police charge, the accident was caused due to the negligence of the second respondent. Therefore, it was the third respondent who was liable to pay the a compensation amount. 7. The Tribunal consolidated and jointly tried all the claim petitions. 8. The petitioners in all the claim petitions produced and marked Exhibits A1 to A25 in evidence. The third respondent produced the copy of the insurance policy, which was marked as Exhibit B1. 9. The Tribunal, after analyzing the pleadings and materials on record, allowed the captioned claim petition ## **MACA NO. 1081 OF 2011 5** in part, by permitting the petitioner to recover from the third respondent an amount of Rs.93,200/- with interest and costs. 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 11. Heard; Sri. T.C. Suresh Menon, the learned counsel appearing for the appellant/petitioner and Smt. S.Jayasree, the learned counsel appearing for the third respondent/insurer. 12. The sole point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 13. Ext.A5 charge sheet filed by the Police proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Exhibit A5 charge sheet. The third respondent has also not proved that the first respondent ## **MACA NO. 1081 OF 2011 6** has violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 14. The petitioner had claimed that he was a driver by profession and was earning a monthly income of Rs.4000/-. For the want of material, the Tribunal fixed the notional monthly income of the petitioner at Rs.2500/-. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 16. Following the yardstick in the afore-cited decision and the considering the fact that the accident occurred in the year 2002, I re-fix the notional monthly income of the petitioner at Rs.3500/-. ## **Multiplier** 17. The petitioner was aged 22 years at the time of ## **MACA NO. 1081 OF 2011 7** accident. In view of the principles laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘18’. ## **Loss of earnings** 18. The Tribunal found that the petitioner was indisposed for a period of four months due to the fracture sustained to his hip. I confirm the said finding. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.3500/-, I award the appellant an amount of Rs.14,000/- towards ‘loss of earnings’, instead of Rs.10,000/- awarded by the Tribunal. ## **Disability** 19. The petitioner had produced Exhibit A7 disability certificate issued by the Assistant Professor, Department of Orthopedics, Medical College Hospital, Thrissur. The Doctor has found that the petitioner has malunion of acetabulam and stiffness of his right hip. Accordingly, the Doctor fixed the permanent disability of ## **MACA NO. 1081 OF 2011 8** the petitioner at 11%. Nevertheless, the Tribunal scaled down the disability to 8%. 20. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that in a case of injury, if the Tribunal is dissatisfied with the disability certificate produced before it, the Tribunal is bound to refer the injured/claimant to a duly constituted Medical Board. Similarly, it is also observed that what needs to be looked into in a case of injury is the functional disability of the injured/claimant. Likewise, it is observed that if the disability certificate is marked in evidence with the consent of all the parties, the same can be accepted in evidence. 21. In the instant case, Exhibit A7 disability certificate was marked in evidence without any objection or protest from the respondents. Therefore, the Tribunal has committed an error by scaling down the disability to 8%. Hence, I accept Exhibit A7 in its entirety and fix the functional disability of the petitioner at 11% as certified ## **MACA NO. 1081 OF 2011 9** in Exhibit A7, particularly taking note that the petitioner is a driver by profession. ## **Loss due to disability** 22. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.3500/-, the multiplier at ‘18’ and his functional disability at 11%, I re-fix the compensation for loss due to disability at Rs.83,160/-, instead of Rs.40,800/awarded by the Tribunal. ## **- By stander expenses and extra nourishment** 23. It is proved and established that the appellant was treated as an inpatient for a period of 23 days. The Tribunal awarded only an amount of Rs.3000/- under the head ‘by-stander expenses’ and Rs.500/- under the head ‘extra nourishment’. I find the amounts to be too meager. Considering the fact that the appellant was treated as an inpatient for a period of 23 days in the year 2002, I award him an amount of Rs.200/- per day for a period of 23 days under the head ‘by-stander expenses’ which comes to Rs.4600/-, and also award him an ## **MACA NO. 1081 OF 2011 10** amount of Rs.100/- per day for a period of 23 days under the head ‘extra nourishment’ which works out to Rs.2300/-. ## **Pain and sufferings and loss of amenities.** 24. The Tribunal has awarded an amount of Rs.15,000/- under the head ‘pain and sufferings’ and Rs.12,000/- under the head ‘loss of amenities’. 25. Taking into account the fact that the petitioner was treated as an inpatient for a period of 23 days, that he was indisposed for a period of four months, and that he has suffered a functional disability of 11%, I award him a further amount of Rs.5000/- under the head’ pain and sufferings’ and Rs.8000/- under the head ‘loss of amenities’. 26. With respect to the compensation awarded under the head transportation, clothing and medical expenses, I find the same to be reasonable and just. 27. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the petitioner is ## **MACA NO. 1081 OF 2011 11** entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|10000|14000| |2|Transportation|1000|1000| |3|Clothing|500|500| |4|By stander<br>expenses|3000|4600| |5|Extra<br>nourishment|500|2300| |6|Medical<br>expenses|10400|10400| |7|Pain and<br>sufferings|15000|20000| |8|Loss of<br>amenities|12000|20000| |9|Loss due to<br>disability|40800|83160| ||Total|**93200**|**155960**| ## **MACA NO. 1081 OF 2011 12** In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.62760/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.7000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately, on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/18.01.2022