Sunny Kuriyan v. Jacob George Saji, Shiney Joseph, Bajaj Allianz General Insurance Co. Ltd. and K.P. Syamala Kumari

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943 ``` ## `MACA NO. 2538 OF 2012` ``` AGAINST THE AWARD DATED 21.12.2011 IN OP(MV)NO.1264/2006 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM ``` ## `APPELLANT/PETITIONER:` ``` SUNNY KURIAN, AGED 54, VAZHOOR P.O., VAZHOOOR, KOTTAYAM DIST. ``` ``` BY ADVS. SRI.A.P.SUBHASH SRI.P.R.VENKATESH ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1JACOB GEORGE SAJI, ALUIMMOOTTIL HOUSE, CHAMAPATHAL P.O., CHAMAPATHAL, KOTTAYAM DISTRICT 686 517. ``` ``` 2SHINEY JOSEPH, AMBATTU HOUSE, CHAMAPATHAL. CHAMAPATHAL P.O., KOTTAYAM DISTRICT 686 517. ``` - `3 THE BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD. ERNAKULAM REPRESENTED BY DIVISIONAL MANAGER, 3RD FLOOR, FINANCE TOWER, KALOOR, ERNAKULAM 682 017.` ``` 4K.P.SYAMALAKUMARI, KARUNA, KARAPPALLI, KOTTAYAM 686 001, (ADDL.R4 IMPLEADED AS PER ORDER IA 3136/2007 DATED 12-07-2007). ``` ``` BY ADV SRI.GEORGE CHERIAN THIRUVALLA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2538/2012 -:2:- Dated this the 21[st] day of February,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P.(MV) No.1264/2006 on the file of the Additional 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 sustained to him in an accident on 25.11.2005. It was his case that, on the above said day, while he was in a car proceeding bearing registration No.KL-5E-6067 through the K.K. road, the car was hit by another car bearing registration No.KEK-7842 (offending car), driven by the first respondent in a rash M.A.C.A.No.2538/2012 -:3:- and negligent manner. The appellant sustained multiple injuries, including a fracture of the left hip joint and a “T” shaped comminuted fracture in the posterior wall of the left acetabulum with posterior dislocation of the left hip. He was treated as an inpatient for a period of 58 days at the Anugrapha Hospital, Kottayam, S.H. Medical Centre, Kottayam and at the Medical Trust Hospital, Ernakulam. The appellant has become permanently disabled. He was a Manager in a jewellery shop and was earning a monthly income of Rs.9,000/-. The offending car was owned by the second respondent and insured with the third respondent. The fourth respondent was the insurance policy holder of the car. Hence, the appellant claimed a compensation of Rs.10,98,000/from the respondents, which claim was limited to Rs.8,00,000/-. 3. The respondent Nos.1, 2 and 4 did not contest the proceeding. M.A.C.A.No.2538/2012 -:4:- 4. The third respondent had filed a written statement denying the allegations in the claim petition. It was contended that the appellant was a gratuitous passenger in a private car. Therefore, the third respondent had no liability to pay the compensation amount. The third respondent also disputed the age, income and occupation of the appellant. 5. The appellant and a Doctor were examined as PWs.1 and 2 and Exts.A1 to A12 were marked in evidence. The third respondent had produced the insurance policy certificate, which was marked as Ext.B1. The disability certificate issued by the Medical Board attached to the Medical College Hospital, Kottayam, was marked as Ext.X1 and the State Standing Disability Assessment Board, Thiruvananthapuram, was marked as Ext.X2. 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 M.A.C.A.No.2538/2012 -:5:- third respondent an amount of Rs.7,29,735/- with interest and cost of Rs.14,500/- 7. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard; Sri. P.R.Venkatesh, the learned counsel appearing for the appellant/petitioner and Smt. K.S. Santhi, the learned counsel appearing for the third respondent /insurer. 9. The sole point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A2 Final Report filed by the Pampadi Police in Crime No.262/2005 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the fourth respondent was insured and the third respondent was the insurer of the car. The respondents M.A.C.A.No.2538/2012 -:6:- have not let in any evidence to discredit Ext.A2 Final Report. Similarly, the third respondent has not proved that the fourth respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the respondents 2 and 4 arising out of the accident. ## **I ncome:** 11. The appellant had claimed that he was working as a Manager in a jewellery shop. To substantiate his contention, he had produced Ext.A11 salary certificate issued by a concern named ‘Thazhackal Jewellery’, Erumely, certifying that the appellant was drawing a monthly salary of Rs.9,000/-. The Tribunal, for the reason that Ext.A11 did not bear the name of the author and that the certificate was not proved through the proper person, declined to accept Ext.A11 and fixed the notional monthly income of the appellant at Rs.4,000/- 12. I have perused Ext.A11. I find that the name M.A.C.A.No.2538/2012 -:7:- of the person who issued the certificate is conspicuously absent. Therefore, I confirm the said finding of the Tribunal that Ext.A11 is not properly proved. 13. Nevertheless, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance** **Company Limited** [(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. 12. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I re-fix the notional income of the deceased at Rs.5,000/- per month. ## **Disability:** 13. The appellant’s disability has been assessed, as per Ext.X2 by a Six Member Medical Board, at 30%. The assessment has been accepted by the Tribunal. I confirm the said finding. M.A.C.A.No.2538/2012 -:8:- ## **Multiplier** 14. The appellant was aged 49 years at the time of accident. In the light of the law laid down in **Sarala** ## **Verma and others v. Delhi Transport Corporation** **and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier to be adopted is ‘13’. ## **Loss due to disability:** 15. Taking into account the above mentioned factors, namely; the monthly income of the appellant at Rs.5,000/-, his ‘functional disability’ at 30%, and the ‘multiplier’ at ‘13’, I award the appellant an amount of **Rs.2,34,000/-** towards 'loss due to disability', instead of Rs.1,87,200/- awarded by the Tribunal. ## **Transportation Expenses:** 16. The appellant had claimed an amount of Rs.40,000/- towards transportation expenses. To prove his assetion, he had produced Ext.A10 series transport bills. Nevertheless, the Tribunal awarded only an M.A.C.A.No.2538/2012 -:9:- amount of Rs.3,000/- for the reason that the bills were not proved through proper person. 17. It is seen that the appellant was treated to four hospitals. He had suffered a hip injury. Therefore, necessarily, he had to be transported in an ambulance. 18. Taking into account the above said fact, I award him an amount of **Rs.15,000/-** under the head ‘transportation expenses’, based on Ext.A10 series. ## **Extra nourishment:** 19. The appellant was treated as an inpatient for a peirod of 58 days. The Tribunal has awarded an amount of Rs.2,000/- under the said head. I find the amount to be on the lower side. Therefore, I enhance the compensation under the said head by a further amount of **Rs.3,000/-** under the said head. ## **Pain and sufferings and loss of amenities:** 20. The appellant had claimed an amount of Rs.3,00,000 under the head ‘pain and sufferings’ and Rs.1,00,000/- under the head ‘loss of amenities’. The M.A.C.A.No.2538/2012 -:10:- Tribunal has awarded an amount of Rs.25,000/- under the head ‘pain and sufferings’ and failed to award any amount under the head ‘loss of amenities’. 21. On a consideration of the fact that the appellant was treated as an inpatient for a period of 58 days, that he was indisposed for a period of eight months, that he has suffered a ‘functional disability’ of 30%, I award him a further amount of **Rs.25,000/-** under the head ‘pain and sufferings’ and **Rs.50,000/-** under the head ‘loss of amenities’. ## **Loss of income:** 22. The Tribunal has found that the appellant was indisposed for a period of eight months. I confirm the said finding. 23. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I award him an amount of **Rs.40,000/-** under the said head, instead of Rs.32,000/- awarded by the Tribunal. 24. The Tribunal has also awarded an amount of M.A.C.A.No.2538/2012 -:11:- Rs.20,000/- under the head ‘loss of earning power’. As I have awarded the appellant an amount of Rs.50,000/- under the head ‘loss of amenities’, I set aside the said amount, as it amounts to duplication of compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, 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. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|32,000|40,000| |2|Transportation<br>expenses|3,000|15,000| |3|Damage<br>to<br>Clothing|500|500| |4|Bystander<br>expenses|12,000|12,000| M.A.C.A.No.2538/2012 -:12:- |5|Extra nourishment|2,000|5,000| |---|---|---|---| |6|Medical expenses|4,48,035|4,48,035| |7|Pain and sufferings|25,000|50,000| |8|Loss of amenities|Nil|50,000| |9|Loss of earning<br>power|20,000|Nil| |9|Loss<br>due<br>to<br>disability|1,87,200|2,34,000| ||**Total**|**7,29,735**|**8,54,535**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.1,24,800/-** with interest on the enhanced compensation at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 214 days i.e., the period of delay in preferring this appeal and as directed by this Court on 12.11.2021 in C.M.Appln.No.1/2012, and a cost of Rs.20,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy M.A.C.A.No.2538/2012 -:13:- of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/21.02.22 //True copy/ P.A.To Judge