T. V. Rajendran v. New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 3[RD] DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943** ## **MACA NO. 2531 OF 2012** **AGAINST THE AWARD DATED 13.02.2010 IN OPMV 1212/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD.** ## **APPELLANT/PETITIONER:** T.V.RAJENDRAN AGED 39 YEARS, S/O. VELAYUDHAN, THEYYATHUMTHODI VEEDU, THANDATHARA, KINAVALLUR, PARLI P.O, PALAKKAD. BY ADV SRI.JACOB SEBASTIAN ## **RESPONDENT/RESPONDENT NO.2:** NEW INDIA ASSURANCE COMPANY LTD. VARIKKODAN BUILDING, NILAMBUR ROAD, MANJERI, MALAPPURAM DISTRICT. BY ADV GEORGE CHERIAN (SR.) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.2531/2012 ## **Dated this the 3[rd] day of November, 2021. JUDGMENT** The appellant was the petitioner in OP(MV) No.1212/2006 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondent in the appeal was the 2[nd] respondent before the Tribunal. As the 2[nd] respondent had admitted the insurance policy and its liability, the appellant has not impleaded the respondents 1, 3 to 5 before the Tribunal as parties in the appeal. Therefore, the parties, 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 02.06.2006. It was his case that, on the aforesaid date, while he was travelling in a 3 MACA No.2531/2012 bus bearing registration No. KL 9D/4545 from Melattur to Manjeri, when the bus reached Peruvacad, a lorry bearing registration No. KL 10A/ 4887 (lorry), driven by the 2[nd] respondent in a negligent manner, hit the bus. The petitioner was initially eking his livelihood as a barber. However, due to a railway accident, his left hand had to be amputated. Thereafter, the petitioner started a stationary shop. He was earning a monthly income of Rs.3000/- . The petitioner was treated as an inpatient for a period of 22 days at the Moulana Hospital , Perinthalmanna and Medical College Hospital, Thrissur. The lorry was owned by the 1[st] respondent and insured with the 2[nd] respondent. The bus was owned by the 3[rd] respondent, driven by the 4[th] respondent and insured with the 5[th] respondent. Hence, the petitioner claimed a compensation of Rs.6,40,000/- from the respondents. 3. The 1[st] respondent had filed a written statement contending that the accident occurred due to the negligence of the driver of the bus. 4 MACA No.2531/2012 4. The 2[nd] respondent had filed a written statement reiterating the very same contentions as that of the 1[st] respondent. It was also contended that the compensation claimed under the different heads was excessive. 5. The petitioner was examined as PW1 and Exhibits A1 to A19 series were marked in evidence. The case records and disability certificate of the petitioner were marked as Exhibits X1 and X2. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, fixed the disability of the petitioner at 50% and allowed the claim petition in part, by permitting the petitioner to realise from the 2[nd] respondent an amount of Rs.2,55,000/- with interest @ 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.250/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 5 MACA No.2531/2012 8. Heard Sri.Jacob Sebastian, the learned counsel appearing for the petitioner and Smt. Latha Susan Cherian, the learned counsel appearing for the respondent/insurer. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exhibit A13 charge sheet filed by the police proves that the accident occurred due to the negligence of the 1[st] respondent - the driver of the lorry. Admittedly, the 2[nd] respondent was the insurer of the lorry and had not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The petitioner had claimed that he was running 6 ## MACA No.2531/2012 a stationery shop and was earning a monthly income of Rs.3000/-. However, the Tribunal fixed the notional monthly income of the petitioner at Rs.2250/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional monthly 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 and that the petitioner had claimed that he was earning a monthly income of Rs.3000/-, I fix the monthly notional income of the petitioner at Rs.3000/-. ## **Loss of earnings** 14. It is proved by Exhibit A3 wound certificate, that the petitioner had sustained serious injuries. Exhibit X2 disability certificate shows that the petitioner 7 MACA No.2531/2012 has sustained a permanent disability of 50%. He was also treated as inpatient for a period of 22 days. In such circumstances, I hold that the petitioner was indisposed for a period of six months. 15. In view of the re-fixation of the notional monthly income of the petitioner at Rs.3000/-, I award the petitioner an amount of Rs.18,000/- towards ‘loss of earnings’. ## **Disability of the petitioner** 16. As per Exhibit X2 certificate issued by the Medical Board, it is found that the petitioner’s right hand has become lifeless. The Medical Board has assessed the petitioner’s permanent disability at 56%. On a consideration of the fact that petitioner's left hand has already been amputated and that he was running a stationery shop, I hold that his functional disability can be fixed at 50% based on the ratio laid down in **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC]. 8 MACA No.2531/2012 ## **Future prospects.** 17. In **Jagdish v. Mohan and others** [2018 (4) SCC 571], followed by **Pappu Deo Yadav v. Naresh Kumar and others** [AIR 2020 SC 4424], the Honourable Supreme Court has categorically held that in the case of serious injury, the injured claimant is also entitled to future prospects. Taking into account the fact that the petitioner was aged 39 years at the time of the accident, I hold that he is entitled to future prospects at 40%. ## **Multiplier** 18. As the petitioner was aged 39 years at the time of the accident, in the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another** [(2009) 6 SCC 1211], the relevant multiplier to be adopted is ‘15’. ## **Loss due to disability** 19. In view of the above mentioned factors, namely, 9 MACA No.2531/2012 the monthly income of the petitioner at Rs.3,000/-, his functional disability at 50%, the multiplier at ‘15’ and future prospects at 40% , I hold that the petitioner is entitled for ‘loss due to dependency’ at Rs.3,78,000/-, instead of Rs.2,16,000/- awarded by the Tribunal. ## **Loss of amenities** 20. It is seen that the Tribunal has awarded only as an amount of Rs.10,000/- towards ‘loss of amenities’. Considering the fact that the appellant has a functional disability of 50%, he was indisposed for a period of six months, he was treated as inpatient for a period of 22 days, I enhance the compensation for ‘loss of amenities’ by a further amount of Rs.40,000/-i.e. an amount of Rs.50,000/- under the said head. ## **- By stander expenses** 21. The Tribunal has not awarded any amount under the head ‘by-stander expenses’. As the accident occurred in the year 2006, I hold that the petitioner is 10 MACA No.2531/2012 entitled for ‘by-stander expenses’ at Rs.300/- per day for a period of 22 days, which amounts to Rs.6600/-. 22. With respect to other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 23. On an over all re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the petitioner is entitled for enhancement of the 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>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|0|18000| |2|Transportation and clothing|3000|3000| |3|By stander expenses|0|6600| |4|Medical expenses|6000|6000| |5|Pain and sufferings|20000|20000| |6|Loss of amenities|10000|50000| |7|Loss due to disability|216,000|3,78,000| ||Total|**2,55,000/-**|**4,81,600**| In the result, the appeal is allowed in part, by 11 MACA No.2531/2012 enhancing the compensation by a further amount of Rs.2,26,600/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.25,000/-. The respondent/2nd 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. The Tribunal shall disburse the enhanced compensation amount to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm5/11/2021