Shabu P. v. United India Insurance Co. Ltd.

MACA NO. 885 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943** ## **MACA NO. 885 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1168/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD, PALAKKAD** ## **APPELLANT/S:** SHABU P. AGED 35 YEARS, NADAKKAVU HOUSE,, JPALLANCHATHANOOR P.O., PALAKKAD. BY ADVS. SRI.JACOB SEBASTIAN SRI.S.SANTHOSH KUMAR BALARAMAPURAM ## **RESPONDENT/S:** UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, SURYA COMPLEX,, 2ND FLOOR, BIWING, PALAKKAD. BY ADV SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 885 OF 2010 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1168/2004 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondent in the appealinsurance company, was the 3[rd] respondent before the Tribunal. 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 in the appeal are that: on 18.06.2004, while the appellant was driving a Tata Sumo vehicle from Palakkad to Coimbatore, when he reached Pudusseri Temple, a lorry bearing registration No.KRK/6516 (offending vehicle) driven by the 2[nd] respondent, in a rash and negligent manner, hit on the vehicle of the appellant. The appellant sustained serious injuries including fractures. Two other persons lost their life in the accident. The appellant was treated at Government MACA NO. 885 OF 2010 3 Hospital, Palakkad and then at the Medical College Hospital, Thrissur. Thereafter, he was admitted at Palana Hospital, Palakkad for a period of 21 days. He had to undergo two surgeries. The appellant sufferred two fractures on his right leg. The appellant was a Driver by profession and earning a monthly income of Rs.4,500/-. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The 4[th] respondent was the insurer of the vehicle driven by the appellant. The appellant contended that respondents 1 to 3 were jointly and severely liable to pay him compensation, which he quantified at Rs.5,00,000. 3. The respondents 1 and 2 did not contest the proceedings. The 3[rd] respondent filed a written statement, interalia, contenting that the Driver of the offending vehicle did not hold a valid driving license, that the accident occurred due to the composite negligence of the appellant also and that the compensation claimed by MACA NO. 885 OF 2010 4 the appellant was on the higher side. The 4[th] respondent filed a written statement contenting that there was no negligence on the part of the appellant and therefore the 4[th] respondent was not liable to pay any amount as compensation. 4. The appellant marked Exts.A1 to A11 and respondents marked Ext.B1 to B4 in evidence. 5. Another injured had filed OP(MV) No.1167/2004 in connection with the same accident before the same Tribunal. The Tribunal consolidated and jointly trial both the original petitions and by a common award allowed the claim petition filed by the appellant in part by permitting the appellant to relaise an amount of Rs.83,080/- from the 3[rd] respondent along with interest at the rate of 7.5% per annum from the date of petition i.e. 17.12.2004, till the date of realisation along with costs of Rs.400/-. 6. Dissatisfied with the quantum of compensation MACA NO. 885 OF 2010 5 awarded by the Tribunal, the petitioner is in appeal. 7. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 3[rd] respondent insurance company. 8. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just 9. A Constitution Bench of the Hon'ble Supreme Court in _**National Insurance Ltd. v. Company 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. 10. Ext.A1 FIR, Ext.A2 scene mahazer and Ext.A4 MACA NO. 885 OF 2010 **==> picture [7 x 9] intentionally omitted <==** series AMVI reports prove that the accident occurred solely on account of the negligence on the part of the 2[nd] respondent, who drove the offending vehicle in a rash and negligent manner. Admittedly, the 1[st] respondent was the owner of the offending vehicle and the 3[rd] respondent was its insurer. Therefore, it is the 3[rd] respondent, who is liable to indemnify the 2[nd] respondent for the liability arrived on account of the accident. 11. The principal area of dispute is with regard to the notional income of the appellant fixed by the Tribunal. 12. The appellant had claimed that he was a Driver by profession and earning Rs.4,500/- per month. However, the Tribunal fixed the notional income of the appellant at Rs.3,000/- per month. 13. The Honourable Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd. :** (2011) 13 SCC 236_ MACA NO. 885 OF 2010 7 has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. ## **Notional Income** 14. The accident occurred on 18.06.2004, when the appellant was aged 30 years. Following the parameters laid down in _**Ramachandrappa**_ (supra), I fix the notional income of the appellant at Rs.4,500/- per month. ## **Loss of Earnings** 15. Undisputedly the appellant was hospitalised as an inpatient in three different hospitals for a period of 22 days. He had admittedly suffered fractures as evidenced by Ext.A7 wound certificate. Thus, it can be safely be concluded that the appellant was indisposed from carrying his avocation for a period of four months. Accordingly, I refix the loss of earnings of the appellant at Rs.18,000/- for four months i.e. Rs.4,500/- x 4 months. ## **Bystander expenses:** 16. It is seen that the Tribunal has only awarded an MACA NO. 885 OF 2010 8 amount of Rs.2,000/- towards bystander expense, which is on the lower side. The appellant underwent hospitalisation for a period of 22 days. Thus, I hold that the appellant is entitled for bystander expenses at Rs.200/- per day for 22 days that is Rs.4,400/- ## **Loss due to disability:** 17. The Tribunal fixed the permanent disability of the appellant at 3%. In view of the refixation of notional income of the appellant at Rs.4,500/- and the relevant ‘ ’ multiplier being 17 , I hold that the appellant is entitled for compensation for loss due to disability at Rs.27,540/instead of Rs.18,360/- awarded by the Tribunal. 18. With respect to the other heads of compensation namely clothing, transportation, extra nourishment, medical treatment expense, pain and suffering and loss of amenities, I find that the Tribunal has awarded reasonable and just compensation. 19. On an overall re-appreciation of the pleadings and MACA NO. 885 OF 2010 9 materials on record, and the law laid down in the above referred decision, I am of the opinion that the appellant is entitled for enhancement of compensation as recalculated above and given in the table below for easy reference: |SI.<br>No<br>1|SI.<br>No|Head of claim<br>Loss of earning|Head of claim<br>Loss of earning|Amount<br>awarded<br>by the<br>Tribunal<br>(in rupees)<br>3,000|Amount<br>awarded<br>by the<br>Tribunal<br>(in rupees)<br>3,000|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---|---|---|---| |||||||18,000| |||||3,000||| |||||||| |2||Transportation Cost||2,000||2,000| |||||||| |3||Clothing||500||500| |||||||| |4||Bystander expense||2,000||4,400| |||||||| |5||Extra nourishment||1,000||1,000| |||||||| |6||Medical expenses||35,220||35,220| |||||||| |7||Pain and suffering||18,000||18,000| |8||Loss of amenities||3,000||3,000| |||||||| |9||Loss due to disability||18,360||27,540| |||||||| |||**Total**||**83,080**||**1,09,570**| In the result, the appeal is allowed in part enhancing compensation by an amount of Rs.26,490/- with interest MACA NO. 885 OF 2010 10 at the rate of 7.5% per annum from the date of petition till the date of deposit, after excluding the period of 68 days i.e. the period of delay in preferring the appeal as ordered by this Court on 29.03.2021 in C.M.Appln.No.1135/2010 and proportionate costs. The 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 disburse the enhanced compensation to the appellant in accordance with law. Sd/- **C.S.DIAS** **JUDGE** rkc