Sivankunju v. Subin Francis, Laisamma & Bajaj Alliance General Insurance Co. Ltd.

``` MACA No.450 of 2016 ``` ``` 1 ``` ``` 2025:KER:27765 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` FRIDAY, THE 21[ST] DAY OF MARCH 2025 / 30TH PHALGUNA, 1946 MACA NO. 450 OF 2016 ``` ``` AGAINST THE AWARD DATED 20.10.2015 IN OP(MV) NO.304 OF 2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## **`APPELLANT/PETITIONER:`** ``` SIVANKUNJU AGED 53 YEARS, S/O.THANKAPPAN, 56 AC COLONY, CHANGANASSERY VILLAGE, POOVAM DESOM, CHENGANASSERY, KOTTAYAM-686 102. ``` ``` BY ADV SRI.SHEJI P.ABRAHAM ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SUBIN FRANCIS AGE NOT KNOWN, S/O.FRANCIS, THERATTIL HOUSE, DISTRICT HOSPITAL P.O., KANNUR-670 007.(DRIVER OF CAR REG.NO.KL-13Y 5336).`** ## **`2 LAISAMMA`** ``` AGE NOT KNOWN, W/O.FRANCIS, THERATTIL HOUSE, DISTRICT HOSPITAL P.O., KANNUR-670 007.(DRIVER OF CAR REG.NO.KL-13Y 5336). ``` - **`3 BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD. BRANCH OFFICE, OTTAPALAM -679 191, POLICY NO.OG 13-1603-1801-00001651, VALID FROM 28.7.12 TO 27.7.13.`** ## **`BY ADVS. SRI. THOMAS M JACOB – STANDING COUNSEL`** ``` 2 ``` ``` MACA No.450 of 2016 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:27765 ``` ``` SRI. V.MANGALA VENKETARAMAN(MAH/6186/2021) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.450 of 2016 ``` ``` 3 ``` ``` 2025:KER:27765 ``` **==> picture [58 x 57] intentionally omitted <==** ## **J U D G M E N T** Dated this the 21[st] day of March, 2025 The petitioner in O.P.(M.V.) No.304 of 2014 on the file of the Motor Accident Claims Tribunal, Ottappalam 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 09.07.2013. According to the petitioner, on 09.07.2013 at about 7.15 p.m., while he was crossing the road from Thekkinkkad maidhanam to M.O. Road, Thrissur, a car bearing Reg.No.KL-13-Y-5336 driven by the 1[st] respondent in a rash and negligent manner knocked down the petitioner. As a result of the accident, the petitioner sustained serious 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. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation ``` MACA No.450 of 2016 ``` ``` 4 ``` ``` 2025:KER:27765 ``` **==> picture [58 x 57] intentionally omitted <==** claimed in the O.P. is Rs.2,50,000/- 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A11. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs1,46,670/- and directed the insurer to pay the same. 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 by the Tribunal is just and reasonable? 9. Heard Sri.Sheji P. Abraham, the learned Counsel appearing for the petitioner, and Sri. Thomas M. Jacob, the learned Standing Counsel for the 3[rd ] respondent. ``` 5 ``` ``` MACA No.450 of 2016 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:27765 ``` 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 Security, earning Rs. 10000/- per month, but the Tribunal fixed his monthly income at Rs.5000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. 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 236], the notional income of a coolie, in the year 2013 will come to Rs.9000/-. Since the petitioner could not prove his job or income as claimed in the OP, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in **Ramachandrappa (supra)** , his notional income is liable to be fixed as that of a coolie, at Rs.9000/-. 12. In the accident the petitioner sustained the following injuries: - “1. Haematoma ocipital region 3 x 2 cm 2. Abrasion elbows ``` MACA No.450 of 2016 ``` ``` 6 ``` ``` 2025:KER:27765 ``` **==> picture [58 x 57] intentionally omitted <==** 3. (R) frontal temporal SAH with contusions. 4. Undisplaced fracture occipital bone on (L) side. 5. Diffuse cerebral edema.” 13. As per Exhibit A10 disability certificate the petitioner suffered 9.75% permanent physical disability. It was issued by PW1. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, I do not find any grounds to disbelieve the same. Therefore, the permanent physical disability of the petitioner is accepted as 9.75%, as fixed by the Tribunal. 14. On the date of accident, the petitioner was aged 52 years. Therefore, 10% 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 11, 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.1,27,413/- (9900 x 12 x 11 x 9.75%) 15. Towards loss of earning, the tribunal has awarded only Rs. 25,000/- being the income for 5 months @ Rs.5000/-. Since the notional income of the petitioner is re-fixed at Rs.9000/-, towards loss ``` 7 ``` ``` MACA No.450 of 2016 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:27765 ``` of earning he is entitled to get a sum of Rs. 45,000/-(9000 x 5 months) 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.25000/-. Towards 'loss of amenities of life' Rs.12500 /- was awarded, towards bystander expenses Rs.2400/- and towards 'extra nourishment' Rs.2400/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 17. The petitioner sustained very serious injuries in the accident and was treated as inpatient for 13 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', ‘bystander expenses’ and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.50,000/-, Rs.30,000/-, Rs.3000 /- and Rs.5000/- 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 petitioner is entitled to get a total compensation of Rs.2,75,433/-, as modified and recalculated above and ``` MACA No.450 of 2016 ``` ``` 8 ``` ``` 2025:KER:27765 ``` **==> picture [58 x 57] intentionally omitted <==** ## given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount**<br>**Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earnings (Total)|25,000|45,000| |2|Transportation<br>expenses|1000|1,000| |3|Extra nourishment|2,400|5,000| |4|Damage to clothing &<br>articles|1,000|1,000| |5|Medical expense|13,020|13,020| |6|Bystander expenses|2,400|3,000| |7|Pain and suffering|25,000|50,000| |8|Compensation for<br>continuing or<br>permanent disability|64,350|1,27,413| |9|Loss of enjoyment and<br>amenities of life|12,500|30,000| ||**Total**|**1,46,670/-**|**2,75,433/-**| ||Enhanced Rs.1,28,763/-||| 20. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.2,75,433/(Rupees Two lakh seventy five thousand four hundred and thirty three 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%) ``` 9 ``` ``` MACA No.450 of 2016 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:27765 ``` 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. Sd/- ## **C. PRATHEEP KUMAR, JUDGE** S.M.K.