Sivadas v. Sudha Sasikumar and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943** **MACA NO. 111 OF 2008** **AGAINST THE AWARD DATED 18.08.2007 IN OP(MV)NO.285/2001 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/1ST RESPONDENT:** **SUDHA SASIKUMAR, PROPRIETOR, BALAKRISHNA MOTORS, GURUVAYUR. BY ADVS.SRI.ANIL SIVARAMAN SRI.HARIKRISHNAN RAVINDRAN** ## **RESPONDENTS/ PETITIONER/ RESPONDENTS 2 TO 6:** - **1 SIVADAS, S/O. LATE NAMBI, PALAYOOR HOUSE, PULIMANTHIPARAMBIL, LAKSHAMVEEDU COLONY, GURUVAYUR P.O., THRISSUR DISTRICT.** - **2 UNNIKRISHNAN (DELETED), S/O BALAKRISHNAN, PATTANATH HOUSE, P.O.PUTHENPALLY.** - **3 THE ORIENTAL INSURANCE CO. LTD., 'U'BROTHERS BUILDING, 1ST FLOOR, GURUVAYUR ROAD, KUNNAMKULAM, THRISSUR.** - **4 ABOOBACKER, S/O. AHAMMEDKUTTY, CHERUKUNNATH HOUSE, P.O.KULUKALLUR, PALAKKAD.** - **5 GANGAGOPALAN(DELETED), S/O AYYAPPAN, NELLIPARAMBIL HOUSE, PALAPPURAM P.O., PALAKKAD.** ## **(R2 AND R5 ARE DELETED FROM THE PARTY ARRAY AT THE** M.A.C.A.Nos.111 & 732/2008 -:2:- **RISK OF THE APPELLANT AS PER ORDER DATED 8/11/19 IN IA NO.1/19)** **6 UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, KURUPAM ROAD, THRISSUR.** **BY ADVS.SRI.GEORGE CHERIAN (SR.) SRI.P.V.CHANDRA MOHAN SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2021, ALONG WITH MACA.732/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.111 & 732/2008 -:3:- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943** **MACA NO. 732 OF 2008** **AGAINST THE AWARD DATED 18.08.2007IN OP(MV) NO.285/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **SIVADAS, S/O. LATE NAMBI, PALAYOOR HOUSE, PULIMANTHIPARAMBIL, LAKSHAMVEEDU COLONY, GURUVAYUR P.O., THRISSUR DISTRICT.** **BY ADV SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 SUDHA SASIKUMAR, PROPRIETOR BALAKRISHNA MOTORS, GURUVAYOOR.** - **2 UNNIKRISHNAN (DELETED,) S/O. BALAKRISHNAN, PATTANATH HOUSE, P.O.PUTHENPALLY.** **(RESPONDENT NO 2 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 21/12/2013 IN IA 383/2013)** **3 THE ORIENTAL INSURANCE CO.LTD., U BROTHERS BUILDING, 1ST FLOOR, GURUVAYOOR ROAD, KUNNAMKULAM, THRISSUR.** ## **BY ADV SRI.ANIL SIVARAMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2021, ALONG WITH MACA.111/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.111 & 732/2008 -:4:- Dated this the 26[th] day of August, 2021 ## **C O M M O N J U D G M E N T** As these appeals arise out of the same award between the same parties and by the same Tribunal, they are being disposed of by this common judgment. The parties are, for the sake of convenience and wherever the context so requires, 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 that he sustained in an accident on 10.08.2000. The facts in brief, relevant for the determination of the appeal, are: On 10.08.2000, while the petitioner was travelling in a bus bearing registration No. KL-9/F-6084 through the Guruvayur-Kunnamkulam pubic road, when it reached M.A.C.A.Nos.111 & 732/2008 -:5:- Kunnamkulam, a bus bearing registration No. KEH/781(offending bus) driven by the second respondent in a rash and negligent manner, hit the bus in which the petitioner was travelling. The petitioner sustained serious injuries, including amputation of his right shoulder. He was treated at Tahani Hospital, Guruvayur, West Fort Hospital, Thrissur and the Specialist Hospital, Ernakulam from 10.08.2000 to 06.09.2000 for a period of 24 days. The petitioner was a goldsmith by profession and earning a monthly income of Rs.5,000/-. The offending bus was owned by the first respondent and insured with the third respondent. The bus in which the petitioner was travelling was owned by the fourth respondent, driven by the fifth respondent and insured with the sixth respondent. Hence, the petitioner claimed an amount of Rs.8,67,000/- from the respondents as compensation. M.A.C.A.Nos.111 & 732/2008 -:6:- 3. Respondent Nos.2, 4 and 5 did not contest the proceedings and were set _ex parte_ . Although the first respondent entered appearance, she did not file any written statement. 4. The third respondent filed a written statement admitting that the offending bus had a valid insurance policy. However, it was contended that the offending bus did not have a valid fitness certificate or permit. Therefore, there was a violation of the policy conditions. Hence, the third respondent was not liable to indemnify the first respondent of his liability. 5. The sixth respondent – the insurer of the bus in which the petitioner was travelling – filed a written statement contending that the accident occurred due to the negligence of the second respondent. The police had conducted the investigation and filed a final report finding the second respondent negligent for causing the accident. Therefore, the fifth respondent cannot be M.A.C.A.Nos.111 & 732/2008 -:7:- negligent in causing the accident. Hence, the sixth respondent may be exonerated from the case. 6. The petitioner was examined as PW1 and Exts.A1 to A12 were marked in evidence. The third respondent produced the certificate of insurance, which was marked in evidence as Ext.B1. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by holding that the petitioner was entitled to a compensation of Rs.3,96,700/- with interest and costs. The third respondent was directed to pay the amount and recover it from the first respondent for the reason that the first respondent, despite the order passed by the Tribunal, did not produce permit and fitness certificate of the offending bus. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner has filed M.A.C.A.No.732/2008 and aggrieved by the M.A.C.A.Nos.111 & 732/2008 -:8:- order to recover the compensation from the first respondent, the first respondent has filed M.A.C.A.No.111/2008. 9. Heard; Adv. Sri. P.V. Chandra Mohan, the learned counsel appearing for the appellant/petitioner in M.A.C.A.No.732/2008 and Adv. Sri. Anil Sivaraman, the learned counsel appearing for the appellant in M.A.C.A. No.111/2008/first respondent and Smt. K.S. Santhi, the learned counsel appearing for the third respondent-insurer. 10. The questions that emerge for consideration in these appeals are: - _(i) whether the direction of the Tribunal to pay and recover the amount from the first respondent is justifiable or not?_ - _(ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just?_ M.A.C.A.Nos.111 & 732/2008 -:9:- ## **Question No:I** 11. Ext.A4 charge-sheet filed by the Kunnakulam Police in Crime No.368/2000, proves that the accident was caused due to the negligence of the second respondent, who drove the offending bus. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the bus. Therefore, the first respondent is vicariously liable and the third respondent is liable to indemnify the liability of the first respondent, provided that the first respondent had not violated the policy conditions. 12. The specific contention of the third respondent in its written statement was that, the offending bus did not have a valid fitness certificate or permit as on the date of accident. Even though the third respondent had filed an application, and the Tribunal directed the first respondent to produce the fitness certificate and permit, the same was not M.A.C.A.Nos.111 & 732/2008 -:10:- produced. 13. The Tribunal, rightly drew adverse inference against the first respondent and found that the first respondent has violated the policy conditions. Accordingly, the Tribunal directed the third respondent-insurer to pay the compensation amount and recover it from the first respondent. Even in this Court, the first respondent has produced a communication from the Regional Transport Office, Palakkad, as Annexure-A1, stating that the Regional Transport Office is not bound to keep the records pertaining to vehicles for more than 10 years, and therefore, the details sought for the first respondent is not available. Although the learned counsel for the first respondent sought for further time to produce the documents, taking into account the fact that the appeals are pending since 2008, I am not inclined to give the first respondent any further time. In such M.A.C.A.Nos.111 & 732/2008 -:11:- circumstances, it is only to be assumed that the offending bus did not have a valid permit and fitness certificate as contended by the third respondent. Thus, I confirm the direction of the Tribunal to the third respondent to pay the compensation amount and recover it from the first respondent. ## **Question No:II** 14. Now coming to the next question, whether the quantum of compensation awarded by the Tribunal is reasonable and just? 15. The petitioner had claimed that he was aged 40 years, and was a goldsmith by profession and earning a monthly income of Rs.5,000/-. The petitioner did not produce any material to substantiate his income. The Tribunal, fixed the notional income of the petitioner at Rs.2,000/- per month. 16. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ M.A.C.A.Nos.111 & 732/2008 -:12:- [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income:** 17. Following the ratio in the afore-cited decision and taking note of the fact that the accident had occurred in the year 2000, I am of the firm opinion that the petitioner's notional income can safely be fixed at Rs.2,500/- per month. Accordingly, I fix his notional income at Rs.2,500/- per month. ## **Loss of earnings:** 18. As per Ext.A2 wound certificate and Ext.A8 disability certificate, it is proved that the petitioner had sustained injuries, including comminuted fracture of the right zygoma with extension of fracture to the orbit and also amputation below his right shoulder. Therefore, necessarily, the petitioner was indisposed for a period of five months. M.A.C.A.Nos.111 & 732/2008 -:13:- 19. In view of the re-fixation of the notional income of the petitioner at Rs.2,500/- and the fact that he was indisposed for a period of five months, I re-fix his 'loss of earnings' at Rs.12,500/- instead of Rs.10,000/- awarded by the Tribunal. ## **Disability:** 20. As per Ext.A8 disability certificate, it is proved that the petitioner had to undergo an amputation below his right shoulder. Accordingly, to the Mc Brides schedule and the provisions of the Workmen Compensation Act, 1923, the permanent disability for amputation below the shoulder joint with stump less that 20.32 cm has to be fixed at 80%. The Tribunal, following the above parameters has assessed the permanent disability of the petitioner at 80%, which I confirm and concur with. ## **Future prospects:** 21. In view of the serious injuries sustained by M.A.C.A.Nos.111 & 732/2008 -:14:- the petitioner, as evidenced by Ext.A8 disability certificate, the petitioner is also entitled to 'future prospects' as laid down by the Hon'ble Supreme Court in _**Pappu Deo Yadav v. Naresh Kumar and Ors.**_ [AIR 2020 SC 4424] and a whole line of decisions. 22. Therefore, as the petitioner was aged 40 years and the relevant multiplier being '15', I hold that he is also entitled to 'future prospects' at 40%. ## **Loss due to disability:** 23. Following the above parameters, namely; the age of the petitioner fixed at 40 years, his monthly income at Rs.2,500/-, his disability at 80%, future prospects at 40%, I re-fix his 'loss due to disability' at Rs.5,04,000/- instead of Rs.2,88,000/- fixed by the Tribunal. ## **Future treatment:** 24. The petitioner had undisputedly undergone amputation below his right shoulder. Necessarily, the M.A.C.A.Nos.111 & 732/2008 -:15:- petitioner would have to undergo 'future treatment' due to the said amputation. Although he had claimed an amount of Rs.1,00,000/- towards 'future treatment' including expenses for artificial limb, the Tribunal did not award any amount. 25. Keeping in mind that the accident occurred in the year 2000 and the amputation had taken place immediately after accident, I am of the firm opinion that a reasonable amount has to be awarded towards 'future treatment' of the petitioner. Hence, I award an amount of Rs.50,000/- towards 'future treatment'. ## **Loss of amenities:** 26. The petitioner had sought for a consolidated amount of Rs.6,00,000/- towards 'loss of earning power, 'disfigurement' and 'loss of amenities'. Nevertheless, the Tribunal did not award any specific amount as compensation towards 'loss of amenities'. 27. Taking into account the grave injuries M.A.C.A.Nos.111 & 732/2008 -:16:- sustained by the petitioner, as evidenced by Ext.A8 disability certificate, Ext.A2 wound certificate, the undisputed fact that he had to undergo an amputation below his right shoulder and he being a goldsmith by profession, I hold that the petitioner is entitled to a reasonable amount towards 'loss of amenities'. Accordingly, I award an amount of Rs.50,000/- as compensation for 'loss of amenities'. 28. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 29. On an comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the considered opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. M.A.C.A.Nos.111 & 732/2008 -:17:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|10,000|12,500| |2|Transport<br>expenses|3,000|3,000| |3|Extra nourishment|2,000|2,000| |4|Damage to<br>clothing|500|500| |5|Medical expenses|60,700|60,700| |6|Bystander<br>expenses|2,500|2,500| |7|Pain and sufferings|30,000|30,000| |8|Loss of amenities|Nil|50,000| |9|Future treatment|Nil|50,000| |10|Loss due to<br>disability|2,88,000|5,04,000| ||**TOTAL**|**3,96,700**|**7,15,200**| In the result, M.A.C.A.No.111/2008 is dismissed and M.A.C.A.No.732/2008 is allowed, by enhancing the compensation by a further amount of **Rs.3,18,500/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The third respondent is directed to deposit M.A.C.A.Nos.111 & 732/2008 -:18:- the enhanced compensation awarded in this appeal before the Tribunal with interest and costs within a period of sixty days from the date of receipt of a certified copy of this judgment. The third respondent's right to recover the compensation amount from the first respondent is confirmed as held by the Tribunal. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in M.A.C.A.No.732/2008 in accordance with law, after deducting his liability, if any, towards court fee. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge M.A.C.A.Nos.111 & 732/2008 -:19:- ## **APPENDIX IN M.A.C.A.NO.111 OF 2008** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE I.A.NO.5177/2006 IN O.P.NO.285/2001 DATED 24.03.2007** ## **RESPONDENTS' EXHIBITS: NIL**