Siju S/O Thomas Mathew v. Velamani and Others

``` MACA No. 1300 of 2013 ``` ``` 1 ``` ``` 2025:KER:23990 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` TUESDAY, THE 18[TH] DAY OF MARCH 2025 / 27TH PHALGUNA, 1946 MACA NO. 1300 OF 2013 ``` ``` AGAINST THE AWARD DATED 16.03.2013 IN OP(MV) NO.1040 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANT/PETITIONER:`** ``` SIJU S/O THOMAS MATHEW, THATHAKKATTU HOUSE, KARIKKATTOOR KARA, MANIMALA VILLAGE. ``` ``` BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR ``` ## **`RESPONDENTS / RESPONDENTS:`** ``` 1K.VELAMANI S/O KARUPPAIAH, 106, AMMACHIPURAM (PO), AUNDIPATTI, SOUTH STREET, THENI DISTRICT, TAMILNADU STATE, PIN:625 531. ``` ``` 2S.JAWAHAR S/O SAMAYAN, 21, ANNAI INDIRA STREET, M.G.R. NAGAR, THENNI DISTRICT, TAMILNADU STATE, PIN:625 531. ``` - **`3 THE MANAGER`** ``` NEW INDIA ASSURANCE COMPANY LIMITED, PERIYAKULAM ROAD, THENI (BO), 720 901, REPRESENTED BY ITS BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAYAM. ``` - **`4 K.J.MANOJ`** ``` S/O K.J. JOSEPH, KALLELAMKAL HOUSE, KARIKATTOOR, MANIMALA, KOTTAYAM DISTRICT, PIN:686 507. ``` ``` MACA No. 1300 of 2013 ``` ``` 2 ``` ``` 2025:KER:23990 ``` **==> picture [58 x 57] intentionally omitted <==** - **`5 JOSHY THOMAS S/O THOMAS, LANITHOTTAM, KARIKATTOOR (SO), MANIMAL, KOTTAYAM DISTRICT, PIN:686 507.`** ``` 6THE MANAGER CHOLAMANDALAM M.S. GENERAL INSURANCE COMPANY LIMITED, DARE HOUSE, 2ND FLOOR, N.S.C. BOSE ROAD, CHENNAI, PIN:600 001. ``` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.M.PREMCHAND ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No. 1300 of 2013 ``` ``` 3 ``` ``` 2025:KER:23990 ``` **==> picture [58 x 57] intentionally omitted <==** ## **J U D G M E N T** Dated this the 18[th] March day of March, 2025 The petitioner in O.P.(M.V.) No.1040 of 2009 on the file of the Motor Accident Claims Tribunal, Pala is the appellant herein. _(For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal)_ 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 26.03.2009. According to the petitioner, on 26.03.2009 at about 10.30 p.m., while he was travelling in the auto bearing Reg.No.KL-34/5303, a tractor bearing Reg. No. TN- 60/D-3135 driven by the 1[st] respondent in a rash and negligent manner, hit against autorickshaw and as a result of the accident, the petitioner sustained injuries. 3. The 1[st] respondent is the driver, the 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle, tractor. The respondents Nos.4 to 6 are the driver, owner and insurer of the Autorickshaw, respectively. According to the petitioner, the accident occurred due to the negligence of the drivers of both the ``` 4 2025:KER:23990 ``` ``` MACA No. 1300 of 2013 ``` vehicles. The quantum of compensation claimed in the O.P. is Rs.3,32,000/-, limited to Rs.2,00,000/-. 4. The respondents 3 to 6 filed written statements separately, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. The 3rd respondent pleaded that, the 1st respondent had no valid driving licence as well as badge at the time of driving the autorickshaw. 5. The evidence in the case consists of the oral testimonies of PWs. 1 & 2 and RW 1 and documentary evidence Exts.A1 to A10, Ext.X1 and X2. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the tractor, awarded a total compensation of Rs.93,258/and directed the 3rd respondent/insurer to pay the same and then permitted to recover the amount from respondents 2 & 1 jointly and severally. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: Whether the quantum of compensation awarded ``` MACA No. 1300 of 2013 ``` ``` 5 ``` ``` 2025:KER:23990 ``` **==> picture [58 x 57] intentionally omitted <==** by the Tribunal is just and reasonable? 9. Heard Sri. Thomas Abraham (Nilackappillil), the learned Counsel appearing for the appellant, Sri. M. Premchand, the learned Standing Counsel for the 3[rd ] respondent and Sri. P. Jacob Mathew, the learned Standing Counsel for the 6[th] respondent. 10. The Point: In this case, the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as a Lottery seller, earning Rs.8,000/- per month, but the Tribunal fixed his monthly income at Rs.4,000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. It is true that the petitioner could not prove his income, as claimed in the OP. However, the evidence adduced by PWs 1 & 2 will substantiate his contention that he was working as lottery seller and getting income from that job. As per the dictum laid down by the Hon’ble Supreme Court in the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [2011 (13) SCC ``` 6 ``` ``` 2025:KER:23990 ``` ``` MACA No. 1300 of 2013 ``` **==> picture [58 x 57] intentionally omitted <==** 236], the notional income of a coolie, in the year 2009 will come to Rs.7000/-. Therefore, the petitioner being a Lottery seller by profession and it is proved by Pws.1 & 2, I am inclined to fix his notional income at Rs. 7,500/-, for the purpose of computing the loss of disability. 12. In the accident the petitioner sustained the following injuries: 1. Fracture first, 2[nd] , 3[rd] and 4[th] metatarsal. 2. Fracture proximal phalanx left big toe. 3. Crush injury left foot. 4. Open fracture metatarsals. 5. Lacerated wound 3 x 3 cm on the left metatarsals. 6. Lacerated wound 8 cm x 3 cm over dorsum extending to first space and over plantar aspect 2 cm proximal. 7. Pain and tenderness all over the body. 13. As per Exhibit X1 disability certificate the petitioner suffered 10.20% permanent physical disability. It was issued by the medical board. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, I do not find any grounds to interfere with the same. Therefore, the permanent physical disability of the petitioner is accepted as 10.20%, as fixed by the Tribunal. ``` 2025:KER:23990 ``` ``` MACA No. 1300 of 2013 ``` **==> picture [6 x 8] intentionally omitted <==** **==> picture [58 x 57] intentionally omitted <==** 14. On the date of accident, the petitioner was aged 24 years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 18, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to **Rs.2,31,336/-** (10500 x 12 x 18 x10.20%). 15. Towards loss of earning, the tribunal has awarded only Rs.20,000/- being the income for 5 months @ Rs.4,000/-. Considering the nature of the injuries sustained and the percentage of disability suffered by the petitioner, the petitioner might have lost income at least for a period of 8 months. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs.60,000/- (7500 x 8 months). 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.20,000/-, towards 'loss of amenities of life' Rs.5,000/- was awarded towards 'extra nourishment' Rs. 1000/- was awarded, towards 'transport to hospital' Rs. 2,500/- was awarded, and towards 'bystander expenses' Rs.2,000/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. ``` 8 ``` ``` 2025:KER:23990 ``` ``` MACA No. 1300 of 2013 ``` **==> picture [58 x 57] intentionally omitted <==** 17. The petitioner sustained serious injuries in the accident and was treated as inpatient for 11 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life', 'extra nourishment', transport to hospital and bystander expenses are on the lower side and hence they are enhanced to Rs.40,000/-, Rs.25,000/-, Rs.3,000/-, Rs.3,500/- and Rs.2,500/respectively. 18. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 19. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.3,67,294/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earnings|20,000|60,000| |2|Transport to hospital|2,500|3,500| |3|Extra nourishment|1,000|3,000| |4|Damages to clothing|500|500| ``` MACA No. 1300 of 2013 ``` ``` 9 ``` **==> picture [58 x 57] intentionally omitted <==** **==> picture [85 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:23990<br>**----- End of picture text -----**<br> |5|Hospital expenses|1,458|1,458| |---|---|---|---| |6|Bystander expenses|2,000|2,500| ||Part II||| |7|Pain and suffering|20,000|40,000| |8|Disability|40,800|2,31,336| |9|Loss of amenities|5,000|25,000| ||**Total**|**93,258**|**3,67,294/-**| ||Enhanced**Rs.2,74,036/-**||| 20. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.3,67,294/(Rupees Three lakh sixty seven thousand two hundred and ninety four only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal, from the date of the petition till deposit/realisation, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%). 21. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. 22. The Tribunal found that the 1[st] respondent had no valid driving licence at the time of the accident and hence directed the 3rd respondent/insurer to pay the compensation and then permitted them ``` 10 ``` ``` MACA No. 1300 of 2013 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:23990 ``` to recover the amount from respondents 2 & 1 jointly and severally. Before this court also the respondents have not produced the driving licence of the 1st respondent and hence the above right given to the 3rd respondent is sustained. Sd/- ## **C. PRATHEEP KUMAR, JUDGE** S.M.K.