Subramanian M.R. v. Sunil A.R., V.K. Anandarajan, and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** ## **MACA NO. 805 OF 2012** **AGAINST THE AWARD DATED 16.10.2009 IN OPMV 3121/2003 OF THE** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** SUBRAMANIAN.M.R. AGED 43 YEARS S/O. RAMAN, MADATHIPPATT HOUSE, P.O.ANTHIKKAD. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** 1 SUNIL.A.R. S/O. RAJAN, ARAYAMPARAMBIL HOUSE, KARAYAMUTTOM, S.R.E.M.D.S., NATTIKA. 2 V.K.ANANDARAJAN VALLATH HOUSE, P.O.THALIKULAM. 3 THE NEW INDIA ASSURANCE CO. LTD. S.S.SHOPPING COMPLEX, TEMPLE ROAD, THRIPRAYAR. BY ADV SRI.JOY JOSEPH MANAYATHU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.805 of 2012 ## **Dated this the 29[th] day of March, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.3121/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. 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 sustained to him in an accident on 04.10.2003. It was his case that, on the aforesaid date, while he was riding his motorcycle along the Thriprayar road, a bus bearing registration No.KL-8/G 2003, driven by the first respondent in a negligent manner, hit the motorcycle of the appellant. The appellant suffered multiple injuries including a head injury. He was treated as an inpatient 3 MACA No.805 of 2012 for a period of 14 days at the Government Hospital, Valappad. The bus was owned by the second respondent and insured with the third respondent. The appellant was a mechanic by profession and was earning a monthly income of Rs.3500/-. Hence, the appellant had claimed a compensation of Rs.4,20,000/from the respondents, which claim was limited to Rs.2,00,000/- 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement denying the pleadings in the claim petition. However, the third respondent had admitted that the bus had a valid insurance coverage. It was also contended that the accident occurred due to the negligence of the appellant. The third respondent disputed the age, income and occupation of the appellant and contended that the compensation claimed was excessive. 4 MACA No.805 of 2012 5. The appellant had produced and marked Exhibits A1 to A10 series in evidence. The third respondent had produced the insurance policy, which was marked as Exhibit B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.42,400/- 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 is in appeal. 8. Heard Sri. Sheji P.Abraham, the learned counsel appearing for the appellant/petitioner and Sri.Joy Joseph, the learned counsel appearing for the third respondent/insurer. 9. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 5 MACA No.805 of 2012 ## **Negligence and liability** 10. Exhibit A5 charge sheet filed by the Valappad police in Crime No.227/2003, proves 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 bus. The respondents have not let in any evidence to discredit Exhibit A5 the charge sheet. The third respondent has also not proved 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 appellant had claimed that he was a mechanic by profession and was earning a monthly income of Rs.3500/-. However, he did not produce any material to prove his income. The Tribunal fixed the notional monthly income of the appellant at Rs.2500/-. 6 MACA No.805 of 2012 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 2003, I re-fix the notional monthly income of the appellant at Rs.3500/- as claimed in the claim petition. ## **Loss of earnings** 14. The Tribunal has found that the appellant was indisposed for a period of two months. 15. On a consideration of the fact that the appellant had suffered a head injury to his right parietal area and that he was treated as an inpatient for a period of 14 days and that he was a mechanic by profession, I hold that he was indisposed for a period of three months. In 7 MACA No.805 of 2012 view of re-fixation of the notional monthly income of the appellant at Rs.3500/-, I award him an amount of Rs.10,500/- under the head ‘loss of earnings’. ## **Disability** 16. On the basis of Exhibit A6 disability certificate, the Tribunal had found that the appellant has a functional disability of 2%. I have re-appreciated Exhibit A6 and find that the assessment made by the Tribunal to be correct and justifiable. Thus, I confirm the said finding. Nevertheless, in view of the re-fixation of the monthly income of the appellant at Rs.3500/- and after adopting the multiplier of ‘16’, I award him an amount of Rs.13,440/- towards ‘loss of earning capacity’, instead of Rs.10,200/- awarded by the Tribunal. ## **- By stander expenses** 17. It is proved and established that the appellant was treated as an inpatient for a period of 14 days. 18. Taking into account the fact that the accident 8 MACA No.805 of 2012 occurred in the year 2003, I award him an amount of Rs.1500/- under the head ‘by-stander expenses’, instead of Rs.1000/- awarded by the Tribunal. ## **Pain and sufferings and loss of amenities** 19. The Tribunal has awarded only an amount of Rs.10,000/-under the head ‘pain and sufferings’. 20. On a consideration of the fact that the appellant was treated as an inpatient for a period of 14 days, he has suffered a head injury, he was indisposed for a period of three months and he has suffered a functional disability of 2%, I award him a further amount of Rs.10,000/- under the head ‘pain and sufferings’ and award him an amount of Rs.10,000/- under the head ‘loss of amenities’. 21. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the 9 MACA No.805 of 2012 afore-cited decisions, I hold 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. |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|5000|10500| |2|Transportation|750|750| |3|Clothing|500|500| |4|By stander expenses|1000|1500| |5|Extra nourishment|1000|1000| |6|Medical expenses|13910|13910| |7|Pain and suferings|10000|20000| |8|Loss of amenities|0|10000| |9|Loss of earning capacity|10200|13440| ||Total|42360 rounded<br>of to<br>Rs.42400/-|71600| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.29,200/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 533 days (i.e the period of delay in filing the appeal and as ordered by this Court on 23.05.2012 in C.M.Application No. 10 MACA No.805 of 2012 1007/2012), and a cost of Rs.5000/-. The third respondent- insurer is ordered to deposit the enhanced compensation with interest 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 same shall be disbursed to the appellant/petitioner in accordance with law. SD/- **C.S.DIAS, JUDGE** rmm29/03/2022