Thankavelu v. M. Pazhanivel and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943 MACA NO. 1425 OF 2010** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 1301/2001 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , PALAKKAD.** ## **APPELLANT/PETITIONER:** THANKAVELU AGED 24 YEARS S/O.SUBBAN,DOOR NO.127, BOOTHI VAZHI, AGALI P.O., PALAKKAD DISTRICT. BY ADV SRI.A.R.GANGADAS ## **RESPONDENTS/RESPONDENTS:** - 1 M.PAZHANIVEL S/O.MARAPPAN,NIT BATA RAILWAY CROSSING, FARIDABAD,, ANDRAPRADESH.-500001 - 2 MURUKAYYA@MURUKAN 123 C SALEM ROAD,PASUPATHY TRANSPORT, NAMAKKAL TAMILNADU.-637001 - 3 THE NEW INDIA ASSURANCE CO. LTD. NAMAKKAL DIVISION OFFICE, 2 PRAMATYHY ROAD,NAMAKKAL, TAMILNADU.-637001 - 4 N.SELVI WO.NANJAPPAN, 27, SHENNAIMALA KOUNDER STREET, PULIAYAPATTI POST, SATHYAMANGALAM TALUK,PERIYAR DISTRICT, TAMILNADU.-628306 - 5 MAYILSWAMY S/O.PONNUSWAMY,THOTTIPPALAYAM, VALIPALAYAM POST, DESHAPALAYAM PANCHAYATH, SATHYAMANGALAM TALUK, PERIYAR DISTRICT, TAMILNADU.-638401 MACA No. 1425 OF 2010 2 - 6 THE ORIENTAL INSURANCE COMPANY LTD. INDIA LIFE BUILDINGS, TRICY ROAD, COIMBATORE-, 641018. BY ADV SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 1425 OF 2010 3 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.1301/2001 on the file of the Motor Accidents Claims Tribunal,Palakkad. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident that occurred on 7.2.2001. It was his case that, while he was travelling in a TATA 407 (tempo van) bearing registration No.TN-36B/6826 from Palakkad to Coimbatore, when the vehicle reached Attappallam, a trailer lorry bearing registration No. HR-29/9647 (lorry) came from the opposite direction and hit the tempo van in which the MACA No. 1425 OF 2010 4 appellant was travelling. In the accident, the appellant sustained grievous injuries and two other persons lost their lives. The appellant was taken to the District Hospital, Palakkad and, thereafter, was referred to the Medical College Hospital, Coimbatore. His leg was amputated below the knee. The accident occurred due to the negligence of the drivers of both the vehicles. The appellant has become permanently disabled and has lost his earning power. He is not in a position to do any work. The lorry was owned by the first respondent, driven by the second respondent and insured with the third respondent. The van was owned by the fourth respondent, driven by the fifth respondent and owned by the fourth respondent. The appellant was doing cattle business and earning a monthly income of Rs.6,000/-. Hence he claimed a compensation of Rs.7,65,000/- from the respondents, which was limited to Rs.7,00,000/-. MACA No. 1425 OF 2010 5 3. The respondents 1,2,4 and 5 did not contest the proceedings and were set ex-parte. 4. The third respondent had filed a written statement disputing the age, income and occupation of the appellant. It was contended that there was no negligence on the part of the driver of the lorry, but the accident occurred due to the negligence of the driver of the tempo van. 5. The sixth respondent had filed a written statement admitting that the tempo van had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the second respondent-the driver of the lorry. Hence it was contended that, only the respondents 1 to 3 were liable to pay the compensation. 6. The appellant was examined as PW1 and MACA No. 1425 OF 2010 6 Exts. A1 to A10 were marked in evidence. The disability certificate issued by the Medical Board, District Hospital, Palakkad was marked as Ext.X1. 7. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise from the third respondent an amount of Rs.2,29,175/- with interest @ 7.5% p.a., from the date of petition till the date of payment and cost of Rs.750/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. A.R.Gangadas, learned counsel appearing for the appellant/petitioner and Sri. P.M.M.Najeeb Khan, the learned counsel appearing for the third respondent-insurer. MACA No. 1425 OF 2010 7 10. The core question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability.** 11. It is proved by Ext.A9 final report filed by the Walayar Police in Crime No.21/2001, that the accident occurred due to the negligence of the second respondent. Admittedly, the first respondent was the owner and third respondent was the insurer of the lorry. The third respondent has admitted that the offending lorry had a valid insurance coverage and has not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is liable to indemnify the first respondent of his liability to pay the compensation arising out of the accident. MACA No. 1425 OF 2010 8 ## **Notional income.** 12. The appellant had claimed that he was cattle business and a doing earning monthly income of Rs.6,000/-. He did not produce any materials to substantiate his income. The Tribunal fixed the monthly notional income of the appellant at Rs.3,000/-. ## 13. In **Ramachadrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [(2011)** **(13) SCC 236]** , the Hon'ble Supreme Court has fixed the monthly notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the aforesaid decision and considering the fact that the accident occurred in the year 2001, I do not find any error in the fixation of the monthly notional income of the appellant at Rs.3,000/-. Hence, I confirm the MACA No. 1425 OF 2010 9 monthly notional income of the appellant at Rs.3,000/-. ## **Multiplier** 15. Admittedly, the appellant was aged 24 years at the time of the accident. In the light of the law laid down in **Sarla Verma Vs. Delhi Transport Corporation [(2009) (6) SCC 121]** , the relevant multiplier to be adopted is '18', instead of 17 adopted by the Tribunal. ## **Loss due to disability.** 16. Ext.X1 disability certificate issued by the duly constituted Medical Board proves that the appellant had sustained a crush injury on his right leg and his right leg was amputated below the knee as a result of the accident. The Medical Board has assessed the appellant's disability at 30%. Later, the District Hospital, Palakkad, by MACA No. 1425 OF 2010 10 Ext.10 has found that the appellant has a permanent disability of 40%. However, the Tribunal has fixed the permanent disability of the appellant at 30%. 17. In **Raj Kumar v. Ajay Kumar [(2011) (1) KLT 620 (SC)]** the Hon'ble Supreme Court has categorically held that, what needs to be looked into by the Tribunal, while assessing the disability of an injured, is the functional disability of the injured/claimant. 18. Admittedly, in the case at hand, the appellant's right leg has been amputated below his knee. He was doing cattle business, which necessarily needs long time standing and walking. The District Hospital, by Ext.A10, has certified that the appellant's permanent disability at 40% and the Medical Board has certified the disability at 30% in Ext.X1. MACA No. 1425 OF 2010 11 19. Taking in to account the assessment of permanent disability in Exts.X1 and A10, and considering the avocation of the appellant, I fix his functional disability at 50%. 20. A three Judge Bench of the Hon'ble Supreme Court in **Jagadish v. Mohan and Others [(2018 (4) SCC 571** )] has held that in the case of serious disability, wherein the injured is engaged in manual works, future prospects has to be awarded. 21. As the appellant has been found to be having 50% functional disability and he was doing cattle business, I hold that he is entitled to future prospects at 40%. 22. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.3,000/-, his functional disability at 50%, the multiplier at 18 and future prospects at MACA No. 1425 OF 2010 12 40%, I hold that the appellant is entitled for compensation for loss due to disability at Rs.4,53,600/-, instead of Rs.1,83,600/- awarded by the Tribunal. ## **Loss of earnings.** 23. The appellant had undisputedly sustained a crush injury on his right leg, and his right leg had to be amputated below his knee. He had claimed loss of earnings for a period six months. However, the Tribunal awarded loss of earnings only for a period of three months, which according to me is on a lower side. 24. I hold that the appellant was indisposed for a period of six months. Therefore, I award the appellant an amount of Rs.18,000/-, towards loss of earnings, instead of Rs.9,000/- awarded by the Tribunal. MACA No. 1425 OF 2010 13 ## **Loss of amenities.** 25. The appellant had claimed an amount of Rs.1,00,000/- towards loss of amenities. The Tribunal has not award any amount under the said head, which according to me is erroneous. 26. As the appellant has a functional disability of 50%, he has indisposed for a period of six months and he was treated as inpatient for a period of 45 days, I hold that he is entitled for a compensation of Rs.50,000/- under the head loss of amenities. 27. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 28. On an over all re-appreciation of pleadings, materials on record, and the law laid down in the afore cited decisions, I hold that the MACA No. 1425 OF 2010 14 appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above given in the table below for easy reference. |Sl.No.|Name of Heads|Amount<br>(Rs.)|Amount (Rs.)| |---|---|---|---| |1.|Loss of earnings|9,000/-|18000/-| |2.|Transportaion|1,875/-|1875/-| |3.|By-stander expenses|4,600/-|4,600/-| |4.|Clothing|5,00/-|5,00/-| |5.|Extra Nourishment|4,600/-|4,600/-| |6.|Pain and sufferings|25,000/-|25,000/-| |7.|Loss of amenities|NIL|50,000/-| |8.|Loss due to disability|1,83,600/-|4,53,600/-| ||Total|2,29,175/-|5,58,175/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.3,29,900/- with interest @ 7.5% p.a on the MACA No. 1425 OF 2010 15 enhanced compensation from the date of petition till the date of realisation, after deducting interest for a period of 153 days as ordered by this Court on 14.9.2021 in C.M.Application 2/2010, and a cost of Rs.4,000/-. The third respondent/insurer is directed 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 this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance to law. All pending interlocutory Applications will stand closed. Sd/- **C.S.DIAS** **JUDGE** al/-