Sidharthan v. Bini D/o Venugopal & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942** ## **MACA.No.282 OF 2010** **AGAINST THE AWARD IN OPMV 1724/2005 DATED 17-07-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **SIDHARTHAN, S/O.GOPALAN, AGED 67 YEARS KOONIYARA HOUSE, P.O.P.VEMBALLUR, S.N.PURAM VILLAGE, THRISSUR DISTRICT/.** **BY ADVS. SMT.SADHANA KUMARI ESWARI SRI.N.AJITH GOVERNMENT PLEADER** ## **RESPONDENTS/RESPONDENTS:** - **1 BINI D/O VENUGOPAL, KANDENGATTIL HOUSE, P.O.CHENDRAPINNY EAST, THRISSUR DISTRICT.** - **2 SUDHEER T.R** - **S/O.RAGHU, THASHNATH (H),PO.KUNNAMPILLIPURAM, CHENDRAPINNY.** - **3 THE MANAGER** **NATIONAL INSURANCE CO.LTD, DIVISION NO.10, FLAT NO.101-106-NI BMC HOME,, CONNAUGHT PLACE, NEW DELHI.** - **4 SASANKAN** - **S/O.SUBRAMNIAN, ERASSERY HOUSE, PANANGAD DESOM, S.N.PURAM VILLAGE,, THRISSUR DISTRICT.** - **5 THE MANAGER, ORIENTAL INSURANCE CO. LTD KODUNGALLUR BRANCH.** - **R3 BY ADV. SARAH SALVY R5 BY ADV. TITUS MANI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.282 OF 2010 2 ## **JUDGMENT** ## **Dated this the 14th day of September 2020** The appellant is the claimant in OPMV No.1724 of 2005 on the file of the Motor Accident Claims Tribunal, Irinjalakuda. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of a motor accident that took place on 14.10.2005. The parties are, for the sake of convenience, referred to as per their litigate status in the appeal. 2. It is the case of the appellant that while he was riding motor cycle No. KL-8/G 2013, through Kodugalur-Chettuva NH-17 road, the motor car bearing no KL-8/Z 7677 driven by the 2[nd] respondent, in a very rash and negligent manner and in excessive speed, came from north to south direction and hit the appellant. The appellant was admitted as an inpatient in the Modern Hospital, Kodungallur and, thereafter, at the Specialist's MACA.No.282 OF 2010 3 Hospital Ernakulam. The appellant sustained the following injuries: 1. Segmental fracture both bones left leg. 2. Fracture medical malleolus left. - 3.Avulsion fracture 4. Swelling deformity left leg middle 1/3[rd] 5. Laceraed wound left heel 6. Swelling over left foot and ankle. 3. Accordingly, the appellant filed the claim petition before the Tribunal, claiming a total amount of Rs.4,76,000/- as compensation, under various heads, which was limited to Rs.4,00,000/-. The respondents 1 to 3 are the owner, driver and the insurer, respectively, of the offending car. The respondents 4 and 5 are the owner and insurer, respectively, of the motor cycle. 4. The 4[th] respondent was set ex-parte. Although, the respondents 1 and 2 had entered appearance, they did not choose to file any written statement. The 5[th] respondent filed a written statement admitting the insurance policy of the motor cycle, but contended that the 2[nd] respondent MACA.No.282 OF 2010 4 was responsible for the accident. The 3[rd] respondent-Insurance Company of the car, on the other hand, filed a written statement admitting Ext.B1 policy, but, inter-alia, contended that the appellant was responsible for the accident and that the 2[nd] respondent did not have a valid driving licence at the time of accident. 5. Neither party adduced any oral evidence. The appellant produced and marked Exts.A1 to A7 and the 3[rd] respondent produced and marked Exts.B1 and B2 in evidence. 6. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.1,97, 420/- as compensation from the respondents jointly and severally with interest at the rate of 7% p.a from the date of petition till the date of realisation and also proportionate costs. 7. The comparative table of compensation that was claimed by the appellant and that was MACA.No.282 OF 2010 5 ## awarded by the Tribunal is as follows:- |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Loss of earning from<br>14.10.2005 to 15.03.2005|25,000|10,000| |2|Partial loss of earning|Nil|Nil| |3|Transport to hospital|500|2,000| |4|Damage to clothing|500|Nil| |5|Extra nourishment|2000|Nil| |6|Medical expenses|2,00,000|1,07,600| |7|Bystander expenses|3,000|5,500| |8|Compensation for pain and<br>suffering suffered by<br>petitioner|25,000|20,000| |9.|Compensation<br>for<br>permanent disability|1,50,000/-|34,320| |10.|Compensation for loss of<br>earning power|50,000|Nil| |11.|Compensation for loss of<br>amenities of life|20,000|10,000| 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, under the various heads mentioned above, the appellant has preferred this appeal. 9. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 10. The sole question that emerges for consideration in this appeal is whether the appellant is entitled for enhancement of MACA.No.282 OF 2010 6 compensation. 11. 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 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. 12. The appellant met with the accident on 14.10.2005. At that time, he was 54 years old. The appellant had claimed to be a photographer getting a monthly income of Rs.4,500/-. The appellant has also claimed to have suffered 25% disability, based on Ext.A5 disability certificate, due to the accident. 13. The Tribunal after interacting with the appellant in person, arrived at a conclusion that MACA.No.282 OF 2010 7 the appellant has a whole body disability of 13%. ## **Disability Certificate** 14. This court by its order dated 23.1.2020 directed the appellant to appear before a Medical Board constituted by the Superintendent of Medical College Hospital, Thrissur. The Medical Board by Disability Assessment Board Certificate dated 5.2.2020, which is marked as Ext.X1, certified that the appellant has 16% whole body disability. **Therefore, the disability of the appellant is fixed at 16%** . 15. Even though no materials were produced before the Tribunal to prove the monthly income of the appellant and that the appellant did not chosen to mount the box to give oral evidence, the Tribunal fixed the appellants monthly income at Rs.2,000/-. 16. The Hon'ble Supreme Court in **Ramachanrappa Vs. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236]** has fixed the notional income of coolie worker at MACA.No.282 OF 2010 8 Rs.4,500/-, in the year, 2011. Subsequently, the Hon'ble Supreme Court in **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** has reiterated the ratio in Ramachanrappa. ## **Income** 17. Taking into consideration the principles laid down in the above cited decisions, on the notional income of self employees person, **I am of the considered opinion that the appellant's income can be safely be re-fixed at Rs.4,500/(Rupees Four Thousand Five Hundred only) per month,** as on the date of accident, instead of Rs.2000/- fixed by the Tribunal. ## **Multiplier** 18. The appellant was aged 54 years at the time of the accident. The multiplier to be adopted is 11, as per the decision in **Sarla Verma & Otrs Vs. Delhi Transport Corporation [(2009) 6 SCC 121]** and **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** . MACA.No.282 OF 2010 9 ## **Loss due to disability with future prospects:** 19. As the age of the appellant was 54 years on the date of accident, his monthly income is fixed at Rs.4,500/-, his disability is 16%, the multiplier is 11%, the loss of income is five months and his future prospects is 10%, **the total loss due to disability with future prospects of the appellant is re-fixed at Rs.1,04,544/-,** instead of Rs.34,320/- fixed by the Tribunal under the heading compensation for permanent disability. ## **Loss of earnings:** 20. The Tribunal has fixed the loss of earnings of the appellant for a period of five months at the rate of Rs.2,000/-. **In view of the finding that the income of the appellant is Rs.4,500/-, I re-fix the same at Rs.22,500/- (i.e Rs 4,500 x 5 months)** ## **Other Heads of Claims** 21. With respect to the amount claimed under the headings Damage to clothing and Extra Nourishment, I enhance the amounts to Rs.1,000/-, MACA.No.282 OF 2010 10 and Rs.2,000/-, respectively. 22. With respect to the claims under the headings medical expenses, transport to hospital, bystander expenses and compensation for pain and suffering, I find the Tribunal has awarded reasonable and just compensation under the said heads of claims. The medical expenses have been fixed on the basis of Ext.A7 Medical Bills. Therefore, I do not find any reason to enhance the amount under the said head of claims. 23. Therefore, on an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am of the considered opinion that the appellant is entitled for enhancement of the amounts as modified and recalculated above, and given in the table below for easy reference. MACA.No.282 OF 2010 11 |SI.<br>No|Head of claim|Amount<br>claimed in<br>claim<br>petition<br>(in rupees)|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---|---| |1|Loss of earning from<br>14.10.2005to 15.03.2005|25,000|10,000|22,500| |2|Partial loss of earning|Nil|Nil|Nil| |3|Transport to hospital|500|2,000|2,000| |4|Damage to clothing|500|Nil|1,000| |5|Extra nourishment|2000|Nil|2000| |6|Medical expenses|2,00,000|1,07,600|1,07,600| |7|Bystander expenses|3,000|5,500|5,500| |8|Compensation for pain and<br>suffering suffered by<br>petitioner|25,000|20,000|20,000| |9.|Compensation<br>for<br>permanent disability|1,50,000/-|34,320|1,04,544| |10.|Compensation for loss of<br>earning power|50,000|Nil|Nil| |11.|Compensation for loss of<br>amenities of life|20,000|10,000|10,000| ||Total|4,76,000<br>Rounded off<br>to<br>Rs.4,00,000/-<br>.|1,89,420<br>---------------<br>Amount<br>awarded<br>Rs.1,97,420/-|2,75,144| 24. The Tribunal in the impugned award has granted interest on the compensation awarded only at the rate of 7% per annum. In light of the decision of the Hon'ble Supreme Court in **MCD v.** **Uphaar Tragedy Victims Association [(2011)** **14 SCC 481],** I fix interest at the rate of 9% per annum. 25. In the result, the appeal is allowed in MACA.No.282 OF 2010 12 part. The compensation granted by the Tribunal is enhanced by granting the appellant a further amount of Rs.77,724/- (Rupees Seventy Seven Thousand Seven Hundred and Twenty Four only) by way of compensation, with interest at the rate of 9% per annum from the date of petition till the date of realisation, excluding the period of delay of 109 days in filing the appeal, and proportionatre cost. The 3[rd] respondent shall satisfy the additional compensation granted in this appeal to the appellant together with interest and the proportionate costs, within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the appellant towards balance court fee and legal benefit fund. The disbursement of additional compensation shall be made in accordance with law. Ska/17/9/2020 Sd/- C.S.DIAS, JUDGE /True copy/