Sounder Raj S/o Ponnayain v. Vidyanandan; The National Insurance Company Ltd.; Rupesh C.R.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943** **MACA NO. 1811 OF 2011** ## **AGAINST THE AWARD DATED 09.06.2011 IN OPMV 591/2007 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM,** ## **APPELLANT:** SOUNDER RAJ S/O. PONNAYAIN, WEST NEYOOR P.O. SIRAGAN VILLAI WEST NEYYAR P.O., LAKSHMIPURAM VILLAGE, KANYAKUMARI DISTRICT BY ADVS. A.P.SUBHASH P.R.VENKATESH ## **RESPONDENTS:** 1 VIDYANANDAN, CHENGANAVANPARAMBIL PULIKUTTISSERY P.O. KOTTAYAM 2 THE NATIONAL INSURANCE COMPANY LTD. KOTTAYAM 686001 3 RUPESH C.R. CHUNANKARA, PAKKIL P.O. KOTTAYAM BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1811/2011 -:2:- Dated this the 1[st] day of November, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P. (MV) No.591/2007 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant 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 15.04.2006. It was his case that, on the above said date, while he was riding as a pillion on a motorcycle bearing registration No. TN/74-V1104 along the MC road, Kottayam, a lorry bearing registration No. KL 5/R 3380 (lorry), driven by the 3[rd] respondent in a rash and negligent manner, hit the motorcycle. The M.A.C.A.No.1811/2011 -:3:- appellant sustained serious injuries including a cortical contusion. He was treated as inpatient at the Medical College Hospital, Kottayam for a period of 23 days. The appellant was a mason by profession and earning a monthly income of Rs.6500/-. The lorry was owned by the 1[st] respondent and insured with the 2[nd] respondent. Hence, the appellant claimed compensation of Rs.4,48,000/-, from the respondents, which was limited to Rs.3,00,000/-. 3. The respondent Nos.1 and 3 did not contest the proceedings and were set-exparte. 4. The second respondent had filed a written statement, inter alia, contending that the amount claimed was excessive and that the accident occurred due to the negligence of the rider of the motorcycle. However, the 3[rd] respondent admitted that the lorry had a valid insurance coverage. 5. The appellant examined the doctor, who M.A.C.A.No.1811/2011 -:4:- issued the disability certificate as PW1 and marked Exhibits A1 to A10(a) in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise from the 3[rd] respondent an amount of Rs.1,42,646/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard; Sri. A.P Subhash, the learned counsel appearing for the appellant/petitioner and Smt. Deepa George, the learned counsel appearing for the second respondent /insurer. 9. The question that arises for consideration in this appeal is whether the quantum of M.A.C.A.No.1811/2011 -:5:- compensation awarded by the Tribunal is reasonable and just? ## **Negligence and Liability** 10. Ext.A3 charge-sheet filed by the Traffic Police, Kottayam in Crime No.91/2006, substantiates that the accident occurred due to the negligence of the 3[rd] respondent. Admittedly, the 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the lorry. The 2[nd] respondent had admitted the insurance policy and had not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the second respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income of the appellant** 11. The appellant had claimed that he was a mason by profession and earning a monthly income of Rs.6500/- per month. The appellant did not M.A.C.A.No.1811/2011 -:6:- produce substantive evidence to prove his income. The Tribunal fixed the notional monthly of appellant at Rs.3500/- 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the appellant at Rs.5500/- per month. ## **Loss of earnings** 14. It is proved and found by the Tribunal that the appellant was indisposed for a period of six months. Taking into account the pleadings and materials on record, I confirm the said findings. M.A.C.A.No.1811/2011 -:7:- 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.5500/- per month, I re-fix the compensation for loss of earnings at Rs.33,000/- i.e. an enhancement of Rs.12,000/-. ## **Loss due to disability** 16. The appellant had produced Exhibit A6 disability certificate, issued by PW1. PW1 in his oral testimony deposed that the appellant had a bilateral anosmia of 3% and post traumatic headache and he runs the risk of epilepsy, which was fixed at 9%, thus, totalling to 12%. The Tribunal considering the nature of the employment of the appellant fixed the functional disability at 9%. In view of the fact that the appellant is not precluded from carrying on his work and the disability assessed by PW1 in Exhibit A6 pertains to only post traumatic headache, dizziness and the risk of epilepsy, I confirm the finding of the Tribunal, that the appellant has a M.A.C.A.No.1811/2011 -:8:- functional diability of only 9%. ## **Multiplier** 17. The appellant had specifically stated in the claim petition that he was 33 years at the time of accident. In his proof affidavit in lieu of chief examination he has admitted that he was 36 years at the time of accident. However, the Tribunal, relying on Exhibit A10 identity card, fixed the age of the appellant at 30 years and adopted the multiplier at ‘17’. 18. In view of specific admission of the appellant that he was aged 33 years at the time of accident, I do not find any reason to fix his age as per Exhibit A10 at 30 years. Therefore, I fix the age of the appellant, on the date of the accident as 33 years. Following the ratio in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant M.A.C.A.No.1811/2011 -:9:- multiplier to be adopted is ‘16’. 19. Taking into account the re-fixation of the notional monthly income of the appellant at 5500/-, the multiplier at ‘16’, functional disability at 9%, I re-fix the compensation for loss due to disability at Rs.95,040 instead of 64,260 i.e. an enhancement of Rs.30,780/-. ## **Loss of amenities** 20. The appellant had claimed compensation of Rs.50,000/- towards loss of amenities. The Tribunal only awarded an amount of Rs.8000/-, which according to me is on the lower side. 21. Taking into consideration the fact that the appellant was treated as an inpatient for a period of 23 days, that he was indisposed for a period of six months and has suffered a functional disability of 9%, I hold that the appellant is entitled for loss of amenities at Rs.20,000/- i.e an enhancement of M.A.C.A.No.1811/2011 -:10:- Rs.12,000/-. 22. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.54,780/-** (i.e. enhancement of Rs.12,000/- under the loss of earnings, Rs. 30780/- under the head loss due to disability and Rs.12,000/- under the head loss of amenities). The appellant is entitled for the afore said amount with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and cost of Rs.5,000/-. The second respondent/insurer is ordered to deposit the enhanced compensation 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. Immediately on the deposit being made, M.A.C.A.No.1811/2011 -:11:- the Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. SD/- **C.S.DIAS,JUDGE** rmm/1/11/2021