Subash T.V. v. Murali, Suresh & Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943** ## **MACA NO. 1220 OF 2012** **AGAINST THE AWARD DATED 28.04.2012 IN OPMV 1756/2004 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** SUBASH T.V., AGED 46 YEARS S/O T.K. VASU, THAZHATHU HOUSE, KANIMANGALAM P.O, THRISSUR DISTRICT 680027 BY ADVS. SRI.P.G.SURESH SRI.C.V.MANUVILSAN SMT.K.VIDYA ## **RESPONDENTS/RESPONDENTS:** 1 MURALI AGED 51 YEARS S/O VELAYUDHAN, VETTIYATTIL HOUSE, KUNDOOR LANE, THRISSUR TOWN P.O, THRISSUR VILLAGE, THRISSUR DISTRICT, 680020 (DRIVER) 2 SURESH S/O VELAYUDHAN, VETTIYATTIL HOUSE, KUNDOOR LANE, THRISSUR TOWN P.O, THRISSUR VILLAGE, THRISSUR DISTRICT 680020 (OWNER) 3 ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE, MAHESWARI BUILDINGS, M.G. ROAD, THRISSUR 680001, REPRESENTED BY ITS MANAGER BY ADV SRI.GEORGE CHERIAN SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2022, ALONG WITH MACA.2520/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NOs. 1220 & 2520 OF 2012** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943 MACA NO. 2520 OF 2012** **AGAINST THE AWARD DATED 28.04.2012 IN OPMV 1756/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/3RD RESPONDENT:** THE ORIENTAL INSURANCE CO.LTD THRISSUR REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV SRI.GEORGE CHERIAN (THIRUVALLA) ## **RESPONDENT/CLAIMANT:** SUBHASH T.V S/O. T.K. VASU, THAZHATHU HOUSE, KANIMANGALAM, THRISSUR-680027. BY ADVS. SRI.C.V.MANUVILSAN SRI.P.G.SURESH **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2022, ALONG WITH MACA.1220/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NOs. 1220 & 2520 OF 2012** **3** ## **Dated this the 11[th] day of January, 2022.** ## **COMMON JUDGMENT** As these appeals arise out of the same award, between the same parties and of the same Tribunal, they are being disposed of by this common judgment. The parties are, for the sake of convenience, 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 26.10.2003. It was his case that, on the aforesaid date, while he was riding his motorcycle bearing registration No.KL 8V 876 through the Thirssur-Kanimangalam road, a car bearing registration No. KEH 8145 (car), driven by the first respondent in a negligent manner, hit the motorcycle of **MACA NOs. 1220 & 2520 OF 2012** **4** the petitioner. The petitioner sustained serious injuries including an head injury, depressed fracture of the right supra orbital rin, fracture of the right Zygoma and a comminuted fracture upper 1/3rd of the Tibia and a fracture of the upper end of the Fibula. He was treated as an inpatient for a period of 63 days at the Elite Mission Hospital, Thrissur. The petitioner was a business franchise of a courier service and was earning a monthly income of Rs.8000/- The car was owned by the second respondent and insured with the third respondent. Hence, the petitioner claimed a compensation of Rs.7,73,000/- from the respondents, which claim was limited to Rs.7,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set exparte. 4. The third respondent had filed a written statement admitting that the car had a valid insurance **MACA NOs. 1220 & 2520 OF 2012** **5** coverage. Nevertheless, the third respondent contended that the accident occurred due to the negligence of the appellant. The third respondent prayed for exoneration of its liability. 5. The petitioner examined witnesses as PWs1 and 2 and marked Exhibits A1 to A13 (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 petitioner to recover from the third respondent an amount of Rs.3,71,120/- with interest at the rate of 8% per annum from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner has filed MACA No.1220/2012 and aggrieved by the quantum of compensation awarded by the Tribunal, the third ## **MACA NOs. 1220 & 2520 OF 2012** **6** respondent/insurer has filed MACA No.2520/2012. 8. Heard; Sri.P.G. Suresh., the learned counsel appearing for the petitioner and Smt. K.S.Santhi, the learned counsel appearing for the third respondent/insurer. 9. The common question that emerges for consideration in the appeals is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and Liability** 10. Exhibit A2 final report filed by the police establishes that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Exhibit A2 final report. Similarly, the third respondent has not proved **MACA NOs. 1220 & 2520 OF 2012** **7** that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income** 11. The petitioner had claimed that he was a business man running a franchise of a courier service concern and was earning a monthly income of Rs.8,000/-. In order to substantiate the said pleading, he had examined PW1, who issued Exhibit A10. In Exhibit A10, the petitioner’s income for the financial year 2003-2004 has been shown as Rs.3,80,569/-. The Tribunal, for the reason that Exhibit A10 was issued by the District Manager and not by the franchisee, one Seethalakshmi, declined to accept the income certified in Exhibit A10. 12. On a re-appreciation of the material, I hold that it was imperative for the petitioner to have got his income proved by the owner of the courier company that too with authentic material. Moreover, it is seen that as per Exhibit A10, the petitioner was earning annual income of Rs.3,80,569/-. If that was the case, the petitioner ought to be an income tax assessee and he ought to have produced his income tax returns, as he was alleged to have income above the exemption limit in the financial year 2003-2004. Also, if the petitioner was earning an annual income of Rs.3,80,569/-, he would have certainly pleaded about the same in the claim petition. Instead the petitioner has only stated that he was earning a monthly income of Rs.8000/-. Accordingly, the Tribunal has accepted the income of the petitioner at Rs.8000/- as claimed in the claim petition. I do not find any error or illegality in the fixation of the notional income of the appellant at Rs.8000/- per month. Even otherwise, de hors Exhibit A10 salary certificate, the **MACA NOs. 1220 & 2520 OF 2012** **9** Honourable Supreme Court has in **Chameli Devi and others v. Jivrail Mian and others** [(2019) KHC 5352], fixed the notional monthly income of a carpenter in the year 2004 at Rs.5000/-, and in **Chandra** @ **Chnada @ Chandraram v. Mukesh Kumar Yadav** [2021 SCC Online SC 850], fixed the notional monthly income of a driver in the year 2004 at Rs.6000/-. 13. Taking into consideration the fact that the accident occurred in the 2003 and that the year petitioner was a franchise of a courier service, I accept the finding of the Tribunal that the petitioner was earning a monthly income of Rs.8000/-, and fix his monthly income accordingly. ## **Disability** 14. The petitioner had examined PW2, who had issued Exhibit A9 disability certificate, to prove that the petitioner has a permanent disability of 15%. However, **MACA NOs. 1220 & 2520 OF 2012** **10** the Tribunal, scaled down the disability to 12% without any specific finding. 15. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable Supreme Court has specifically held that in a case of injury -claim, what needs to be looked into is the functional disability of the injured/claimant. It is also observed that, if the Tribunal is dissatisfied with the disability certificate produced before it, the Tribunal shall refer the injured-claimant to a duly constituted Medical board. 16. In the instant case, after accepting Exhibit A9 disability certificate, that too without any objection or protest from the respondents, which was proved through PW2, the scaling down of the disability to 12% is erroneous and wrong. On a re-appreciation of Exhibit A9 read with the oral testimony of PW2, I hold that the petitioner has the functional disability of 15%. **MACA NOs. 1220 & 2520 OF 2012** **11** ## **Multiplier** 17. The petitioner was aged 38 years at the time of accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘15’. ## **Loss due to disability** 18. Taking into account the above mentioned factors, namely, the notional monthly income of the petitioner at Rs.8000/-, his functional disability at 15% and the multiplier at ‘15’, I award the petitioner an amount of Rs.2,16,000/- towards ‘loss due to disability, instead of Rs.1,72,800/- awarded by the Tribunal. ## **- By stander expenses and extra nourishment.** 19. It is on record as evidenced by Exhibits A5, A8 and A8(a), A13 and A13(a) discharge summaries that the petitioner was treated as an inpatient for a period of 63 ## **MACA NOs. 1220 & 2520 OF 2012** ## **12** days. The Tribunal has awarded an amount of Rs.9300/towards by-stander expenses, which is on the lower side. Taking into account the fact that the petitioner was treated as an inpatient for a period 63 days from 2003 to 2009, I hold he is entitled for by-stander expenses at Rs.250/- per day for a period of 63 days, which works out to Rs.15,750/- instead of Rs.9300/- awarded by the Tribunal. Similarly, I award the petitioner an amount of Rs.150/- per day for a period of 63 days towards extra nourishment, which comes to Rs. 9,450/-. ## **Future treatment** 20. It is evident from Exhibit A13 that the petitioner had removed the implants between 3/4/2009 to 13/4/2009. Although he has produced medical bills to prove the expenditure involved, the Tribunal for the reason that there was no nexus between the treatment that took place in the year 2009 and the accident that **MACA NOs. 1220 & 2520 OF 2012** **13** took place in the year 2003, declined to award any amount. 21. On a consideration of the serious nature of injuries suffered by the petitioner and the fact that his femur implant was removed only in the year 2009, I award the appellant an amount of Rs.25,000/- towards future prospects. However, the said amount shall not carry interest. ## **Pain and sufferings and loss of amenities** 22. The petitioner had claimed an amount of Rs.1,00,000/- under the head ‘pain and sufferings’ and Rs.75,000/- under the head ‘loss of amenities’. The Tribunal awarded an amount of Rs.25,000/- and Rs.15,000/-, respectively under the two heads. 23. Taking into account the serious nature of injuries sustained by the petitioner, that he was treated as an inpatient for a period of 63 days, that he was ## ## indisposed for a period of 6 months, and that he has suffered a functional disability of 15%, I award the petitioner a further amount of Rs.25,000/- under the head ‘ pain and sufferings’ and Rs.10,000/- under the head loss of amenities. I also award him an amount of Rs.500/- towards damage to clothing. 24. With respect to the amounts awarded under the heads ‘loss of earnings’, ‘transportation expenses’, and ‘medical expenses’, I find that the Tribunal has awarded reasonable and just compensation. 25. On an over all re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I do not find any merit in MACA No.2520/2012, but find that the petitioner is entitled for enhancement of compensation in MACA No.1220/2012 as modified and re-calculated above, and given in the table below for easy reference. **MACA NOs. 1220 & 2520 OF 2012** ## **15** |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|48000|48000| |2|Transportation|3000|3000| |3|Damage to clothing|0|500| |4|By-stander expenses|9300|15750| |5|Extra nourishment|0|9450| |6|Medical expenses|98019|98019| |7|Pain and suferings|25000|50000| |8|Loss of amenities|15000|25000| |9|Future treatment|0|25000| |10|Loss due to disability|172800|216000| ||Total|3,71,190/-<br>rounded to<br>371120/-|490719| In the result, I dismiss MACA No.2520/2012 and partly allow MACA No.1220/2012, by enhancing the compensation by a further amount of Rs.1,19,599/-, out of which Rs.94,599/- shall carry interest at the rate of **16** 8% per annum from the date of petition till the date of deposit, and a cost of Rs.15000/-. The third respondent is ordered to deposit the enhanced compensation with interest as calculated above and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm/12/1/2022