Suraj N.R. v. Dileepkumar K.R. Rajappan and Manilal and National Insurance Co. Ltd.

``` MACA No.2874 of 2014 ``` ``` 1 ``` ``` 2025:KER:26917 ``` **==> picture [57 x 47] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR THURSDAY, THE 20[TH] DAY OF MARCH 2025 / 29TH PHALGUNA, 1946 MACA NO. 2874 OF 2014 ``` ``` AGAINST THE AWARD DATED 28.03.2012 IN OP(MV) NO.881 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` SURAJ N.R. S/O.RAJAPPAN, PURACHIRAYIL HOUSE, MUHAMMA P.O., MUHAMMA (P) WARD - 4, ALAPPUZHA. ``` ``` BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ``` ## **`RESPONDENTS / RESPONDENTS:`** - **`1 DILEEPKUMAR K.R. RAJAPPAN, THONDALIL HOUSE, KAYIPPURAM, MUHAMMA P.O., ALAPPUZHA.`** ``` 2MANILAL S/O.MANIKANDAN, VELIPPARAMBU VEETTIL, MUHAMMA P.O., NORTH OF KOOPLIKATTU CHARCH, MUHAMMA (P) WARD - 3, ALAPPUZHA. ``` - **`3 NATIONAL INSURANCE CO. LTD REPRESENTED BY ITS BRANCH MANAGER, NELIAI COMPLEX, NORTH OF IRON BRIDGE, ALAPPUZHA.`** ``` BY ADV SMT. DEEPA GEORGE – STANDING COUNSEL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.2874 of 2014 ``` ``` 2 ``` ``` 2025:KER:26917 ``` **==> picture [57 x 47] intentionally omitted <==** ## **J U D G M E N T** Dated this the 20[th] day of March, 2025 The petitioner in O.P.(M.V.) No.881 of 2006 on the file of the Motor Accident Claims Tribunal, Alappuzha 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 19.02.2006. According to the petitioner, on 19.02.2006 at about 12.15 a.m., while he was travelling in a goods auto bearing Reg.No.KL-04/S-2865 driven by the 2[nd] respondent in a rash and negligent manner at high speed, suddenly the vehicle turned towards the right side and the petitioner got trapped under the vehicle. As a result of the accident, the petitioner sustained serious injuries. 3. The 1[st] respondent is the owner, the 2[nd] respondent is the driver 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.2874 of 2014 ``` ``` 3 ``` ``` 2025:KER:26917 ``` **==> picture [57 x 47] intentionally omitted <==** claimed in the O.P. is limited to Rs.4,00,000/-. 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 A15. 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 Rs.76,322/- 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. A.T.Anil kumar, the learned Counsel appearing for the original petitioner and Smt. Deepa George, the learned Standing Counsel for the 3[rd ] respondent. ``` MACA No.2874 of 2014 ``` ``` 4 ``` ``` 2025:KER:26917 ``` **==> picture [57 x 47] intentionally omitted <==** 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 wholesale seller, earning Rs. 9000/- per month, but the Tribunal fixed his monthly income at Rs.3000/-. 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 2006 will come to Rs.5500/-. 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.5500/-. 12. In the accident the petitioner sustained the following injuries: 1. Type 3 open montaggia fracture dislocation right elbow ``` MACA No.2874 of 2014 ``` ``` 5 ``` ``` 2025:KER:26917 ``` **==> picture [57 x 47] intentionally omitted <==** and right hand. 2. Two small punctured wounds of 2x.5x.5cms size over the face below the right eye. 3. A large abrasions over the right elbow joint. 13. As per Exhibit A11 disability certificate the petitioner suffered 16% permanent physical disability. It was issued by an Orthopaedic Surgeon, who was examined as PW1. The Tribunal, however, scaled down the percentage of disability of the petitioner to 10%, without assigning valid and cogent reasons. The law is settled that, if the Tribunal is not satisfied with the disability certificate produced by the petitioner, the remedy is to refer him to a medical board or higher Authority.(See **Manikantan G. v. Janardhanan Nair and Others** , 2021 (5)KHC 305). Having not done so, the Tribunal was not justified in scaling down the percentage of disability from what is shown in the disability certificate. I do find any grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 16%. 14. On the date of accident, the petitioner was aged 20 years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v.** ``` MACA No.2874 of 2014 ``` ``` 6 ``` **==> picture [57 x 47] intentionally omitted <==** ``` 2025:KER:26917 ``` **Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 18, 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.2,66,112/- (7700 x 12 x 18 x 16%). 15. Towards loss of earning, the tribunal has awarded only Rs.12,000/- being the income for 6 months @Rs.3000/-. Since the notional income of the petitioner is re-fixed at Rs.5,500/-, towards loss of earning he is entitled to get a sum of Rs. 33,000/- (5500 x 6 months). 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.15,000/-. Towards 'loss of amenities of life' Rs. 10,000/was awarded, towards 'extra nourishment' Rs.800/- was awarded, towards bystander expenses Rs.1400/- was awarded and towards transportation charges Rs.1500/- 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 serious injuries in the accident and was treated as inpatient for 30 days in two sessions. 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 ``` MACA No.2874 of 2014 ``` ``` 7 ``` **==> picture [57 x 47] intentionally omitted <==** ``` 2025:KER:26917 ``` amenities of life', 'extra nourishment', bystander expenses and transportation charges are on the lower side and hence they are enhanced to Rs.50,000/- Rs.30,000/-, Rs.5000/- Rs.6000/- and Rs.2500/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 petitioners/appellants are entitled to get a total compensation of Rs.3,98,234/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded**<br>**by Tribunal (in**<br>**Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earnings|12,000|33,000| |2|Transportation charges|1,500|2,500| |3|Bystander expenses|1,400|6,000| |4|Medical expense|5,622|5,622| |5|Extra nourishment|800|5,000| |6|Loss of amenities in life|10,000|30,000| |7|Functional disability|30,000|2,66,112| |8|Compensation for pain and<br>suffering|15,000|50,000| ||**Total**|**76,322/-**|**3,98,234/-**| ||Enhanced Rs.3,21,912/-||| 20. In the result, this Appeal is allowed in part, and ``` MACA No.2874 of 2014 ``` ``` 8 ``` **==> picture [57 x 47] intentionally omitted <==** ``` 2025:KER:26917 ``` Respondent No.3 is directed to deposit a total sum of Rs.3,98,234/(Rupees Three lakh ninety eight thousand two hundred and thirty four only), less the amount already deposited, if any, along with interest @ 8% per annum, from the date of the petition till deposit/realisation, excluding interest for a period of 824 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. 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.