Sekhar Narayana Swamy Palakkattu v. Hassankunju (Deleted) and United India Insurance Co. Ltd. (Respondents 1 and 2; Respondent 3 Deleted)

## **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. 495 OF 2009** **AGAINST THE AWARD IN OP(MV) 707/2003 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,KOTTAYAM** ## **APPELLANT-PETITIONER:** **SEKHAR NARAYANA SWAMY PALAKKATTU, PUTHEN MADAM, MANJOOR KARA,, KOTHANELLUR VILLAGE, KOTTAYAM DT. BY ADVS. MATHEW JOHN (K) AJEESH K.SASI** ## **RESPONDENTS/RESPONDENTS:** - ***1 HASSANKUNJU,(DELETED) POOVATH HOUSE, THALASSERY.(DELETED)** - **2 UNITED INDIA INSURANCE CO.LTD THALASSERY.** - ***3 JAYACHANDRAN, (DELETED) OTTATHAYIL HOUSE, KODUVALLY, TELLICHERRY** **(*RESPONDENTS 1 AND 3 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 25.03.2021 IN I.A.NO.1 OF 2021).** **BY ADV S.JAYASREE** **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. 495 of 2009_ _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 495 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of June, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.707 of 2003 on the file of the Motor Accidents Claims, Kottayam. The 2[nd] respondent in the claim petition is the 2[nd] respondent in the appeal. Pursuant to the directions of this Court on 25.03.2021 in I.A.No.1 of 2021, the respondents 1 and 3 in the appeal were deleted. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 02.03.2003, while the petitioner was returning home after tuition classes on a motorcycle bearing registration No.KL5L/395 through the southern side of the Pala-Athirampuzha public road, when he reached Mangalam Kalunk, a stage carriage Bus bearing registration No.KL13F/9189 (offending vehicle) driven by the 3[rd] respondent in a rash and negligent manner, hit the _3_ _MACA No. 495 of 2009_ motorcycle of the petitioner. The petitioner fell down and sustained serious injuries including a segmental fracture of mandible, comminuted fracture of maxilla, fracture of occiptal bone, pelvic fracture etc. The offending vehicle was owned by the 1[st] respondent and insured with the 2[nd] respondent. The petitioner contended that the respondents 1 to 3 were jointly and severally liable to pay him compensation, which he quantified at Rs.7,42,000/- 3. The respondents 1 and 3 did not contest the proceedings. 4. The 2[nd] respondent resisted the claim petition by contending that the compensation claimed by the petitioner was excessive. However, it was admitted that the offending vehicle had a valid insurance policy. 5. The petitioner and the Doctors who treated him were examined as PW1 to PW3 and Exts.A1 to A23 were marked in evidence. The respondent did not let in any evidence. 6. The Tribunal, after analysing the pleadings and _MACA No. 495 of 2009_ _4_ materials on record, by the impugned award allowed the claim petition, in part, by permitting the petitioner to recover an amount of Rs.2,37,00/- with interest at the rate of 7% per annum from the date of petition till the date of realization along with the cost of Rs.7,000/-. The 2[nd] respondent was directed to pay compensation amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.Mathew John, the learned counsel for the appellant/petitioner and Smt.S.Jayasree, the learned counsel appearing for the 2[nd] respondent-insurance company. 9. The question that emerges 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. 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 _MACA No. 495 of 2009_ _5_ 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.A4 charge-sheet filed by the police after the investigation substantiates that the accident occurred solely on account of the negligence on the part of the 3[rd] respondent, who drew the offending vehicle in a rash manner. Undisputedly, the 1[st] respondent was the owner of the vehicle and the 2[nd] respondent was the insurer. Therefore, the 2[nd] respondent is liable to indemnify the 1[st] respondent for the liability that has arisen due to the accident. Ext.A2-wound certificate and Ext.A11 and Ext.A12 disability certificates proves the injuries sustained by the petitioner. In Ext.A11 which was proved through PW2, it is established that the petitioner has a permanent partial functional disability of 20% according to the Mc bride scale taking the body as a whole. However, in Ext.A12 certificate which was proved through _MACA No. 495 of 2009_ _6_ PW2 it is also certified that the mobility of the lower incisors may require periodontal surgery to preserve the teeth. Accordingly, it was certified that the petitioner has a permanent disability of 14%. 12. The learned counsel appearing for the appellant submitted that Ext.A11 and Ext.A12 have to be co-jointly read and the disability of the petitioner has to be fixed at 34%. 13. The above submission of the learned counsel appearing for the appellant was vehemently opposed by the learned counsel appearing for the respondent, who contended that PW2 has in Ext.A11 categorically found that the petitioner has a whole-body disability of 20% , which has rightly been accepted by the Tribunal . 14. On a perusal of Ext.A11 and the oral testimony of PW2, it is seen that PW2 had examined all the seven injuries of the petitioner which has been noted on Ext.A11 and has certified the whole-body disability of the petitioner at 20%. Therefore, the contention of the learned counsel for the appellant that 14% of the disability certified in Ext.A12 has to _MACA No. 495 of 2009_ _7_ be added with the 20% disability certified in Ext.A11 cannot be accepted. Hence, I fix the disability of the petitioner at 20%. 15. Undisputedly, the petitioner was an Engineering Diploma Student. The accident occurred while he was returning after his tuition classes. The petitioner had not claimed any monthly income. 16. This Court in **National Insurance Company Ltd. v. Fathimath Zuhara** [2016(3) KLT 459] has fixed the notional income of an Engineering student at Rs.9,000/- per month for an accident that took place in the year 2005. ## **Notional income** 17. Following the parameters in **Fathimath Zuhara** (supra) and considering the fact that the accident occurred on the year 2003 and that the petitioner was an Engineering Diploma Student, I am of the opinion that the petitioner's notional income can safely be fixed at Rs.7,000/- per month. Hence, I re-fix the petitioner's notional income at Rs.7,000/per month instead of Rs.2,500/- fixed by the Tribunal . **- Bye stander expenses** _MACA No. 495 of 2009_ _8_ 18. As per Ext.A11 certificate proved through PW2, it is seen that the petitioner was hospitalised from the date of accident i.e., 02.03.2003 to 19.03.2003. He was treated by interlocking nail left femur and screw fixation of the left forearm with pubic symphysis, open reduction mandible and maxilla. He was put on weights for a period of six months. Therefore, it is proved by Ext.A11 read with the oral testimony of PW2, that the petitioner was indisposed for a period of six months and needed the assistance of a byestander. Hence, I am of the firm opinion that the byestander expenses fixed by the Tribunal at Rs.7,200/- is too meagre. Accordingly, I re-fix the byestander expenses at Rs.36,000/- i.e., Rs.200/- per day for a period of 180 days instead of Rs.7,200/- awarded by the Tribunal. ## **Other heads of claim** 19. With respect to the other heads of claim, it is seen that the Tribunal has awarded reasonable and just compensation. Therefore, there is no need of any interference under the aforesaid claims. _MACA No. 495 of 2009_ _9_ 20. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decision, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated 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|Expenses for Transport|2,000/-|2,000/-| |2|Damages to clothing|1,000/-|1,000/-| |3|Byestander expenses|7,200/-|36,000/-| |4|Expenses for extra nourishment|2,000/-|2,000/-| |5|Medical expenses|50,000/-|50,000/-| |6|Compensation for pain and<br>sufferings|50,000/-|50,000/-,| |7|Compensation for loss of<br>amenities|50,000/-|50,000/-| |8|Loss due to disability|72,000/-|3,02,400/-| |||2,37,000|4,93,000/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.2,56,400/(Rupees two lakh fifty six thousand and four hundred only) with interest at the rate of 7% per annum on the enhanced _10_ _MACA No. 495 of 2009_ compensation, from the date of petition till the date of deposit by the 2[nd] respondent and proportionate cost. The 2[nd] respondent shall deposit the enhanced compensation in the 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 compensation amount deposited by the 2[nd] respondent to the the petitioner, in accordance with law. **Sd/-C.S.DIAS,JUDGE** **dlk 28.06.2021**