Thomas v. Ramachandran and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 8[TH] DAY OF FEBRUARY 2022 / 19TH MAGHA, 1943** ## **MACA NO. 1052 OF 2011** **AGAINST THE AWARD DATED 14.12.2010 IN OPMV 3306/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** THOMAS, S/O UTHUPPURU, MANDUMPAL HOUSE MARATHAMOODE, KUNNAMKULAM. BY ADV SRI.P.V.CHANDRA MOHAN ## **RESPONDENTS/RESPONDENTS:** - 1 RAMACHANDRAN, S/O SANKARAN NAIR MALAYANCHATH HOUSE, KANIPAYYU - 680546. - 2 JISHI S/O.VIJAYAN KANDIRUTHY HOUSE PUTHUR, KAIPARAMBU - 680546 - 3 THE UNITED INDIA INSURANCE CO.LTD. KUNNAMKULAM BY ADV SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1052-2011 ## -:2:- ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.3306/2003 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 03.06.2003. It was his case that, on the above said date, while he was driving a tempo van bearing registration No. KL 8 J 2945 along the Guruvayoor- Kunnamkulam road, a lorry bearing registration No. KL 8/U 3550, driven by the second respondent in a negligent manner, hit the vehicle in which the appellant was travelling. The appellant sustained multiple injuries, including comminuted fracture of the lower pole of right patella, fracture M.A.C.A.No.1052-2011 ## -:3:- base of the third right phalanx and the punctured wound of the right knee. He was treated as an inpatient in two spells for a period of 17 days at the Allied Hospital, Kunnamkulam. The lorry was owned by the first respondent and insured with the third respondent. The appellant was a driver by profession and was earning a monthly income of Rs.4000/-. Hence, the appellant claimed a compensation of Rs.2,00,000/- from the respondents, which claim was limited to Rs.1,30,000/- 3. The respondents 1 and 2 did not contest the proceeding and were set exparte. 4. The third respondent had filed a written statement denying the averments in the claim petition. Nevertheless, the third respondent admitted that the lorry had a valid insurance coverage. The third respondent disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked M.A.C.A.No.1052-2011 ## -:4:- Exhibits A1 to A9 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.86,000/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.P.V. Chandrmohan the learned counsel appearing for the appellant/petitioner and Sri.P.K.Manoj Kumar, the learned counsel appearing for the third respondent/insurer. 9. The point that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? M.A.C.A.No.1052-2011 -:5:- ## **Income** 10. The appellant had claimed that he was a driver by profession and earning a monthly income of Rs.4000/-. For want of material, the Tribunal fixed the monthly income of the appellant on notional basis at Rs.2500/-. 11. 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. 12. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2003 and the appellant had claimed that he had an income of Rs.4000/-, I re-fix his notional monthly income at Rs.4000/- as claimed in the claim petition. ## **Loss of earnings** 13. The Tribunal has found that the appellant was M.A.C.A.No.1052-2011 -:6:- indisposed for a period of three months. I confirm the said finding. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award him an amount of Rs.12,000/- under the head ‘loss of earnings’, instead of Rs.7500/- awarded by the Tribunal. ## **Disability** 14. Pursuant to the order of this Court, the appellant was examined by a duly constituted Medical Board. The Medical Board as per Exhibit X1 has found that the appellant has a functional disability of 18%. ## **Multiplier** 15. The appellant was aged 30 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 121],** the relevant multiplier to be adopted is ‘17’. ## **Loss due to disability** 16. Taking into account the above M.A.C.A.No.1052-2011 ## -:7:- mentioned factors, namely, the notional monthly income of the appellant at Rs.4000/-, his functional disability at 18% and the multiplier at 17, I award him an amount of Rs.1,46,880/- toward ‘loss due to disability’, instead of Rs.33,600/- awarded by the Tribunal. **- By stander expenses and extra nourishment** 17. The Tribunal has awarded an amount of Rs.2000 and Rs,1500/- respectively under the above two heads, I find the compensation to be on the lower side. 18. On a consideration of the fact that the appellant was treated as an inpatient for a period of 17 days and the accident occurred in the year 2003, I award the appellant an amount of Rs.300/per day for a period of 17 days towards ‘by-stander expenses’, which works out to Rs.5100/- and an amount of Rs.150/- per day for a period of 17 days towards ‘extra nourishment’ which works out to M.A.C.A.No.1052-2011 -:8:- Rs. 2550/-. ## **Loss of amenities** 19. The Tribunal has not awarded any amount under the said head. 20. On a consideration of the fact that the appellant was treated as an inpatient for a period of 17 days, that he was indisposed for a period of three months and that he has suffered a functional disability of 18%, I award him an amount of Rs.20,000/- under the head ‘loss of amenities’. 21. With respect to the other heads of compensation, I find the same to be reasonable and just compensation. 22. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. M.A.C.A.No.1052-2011 -:9:- |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|7500|12000| |2|Transportation<br>expenses|1000|1000| |3|Damage<br>to<br>clothing|500|500| |4|Bystander expense|2000|5100| |5|Extra nourishment|1500|2550| |6|Medical expenses|19794|19794| |7|Pain and sufferings|20000|20000| |8|Loss of amenities|0|20000| |9|Loss<br>due<br>to<br>disability|33600|146880| ||**Total**|**85894**|**227824**| 23.Even though the appellant had claimed only an amount of Rs.1,30,000/-, I award him more compensation than what is claimed in the claim petition, in view of the functional disability of the appellant fixed by the Medical Board in Exhibit X1 at 18%. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh [2003** M.A.C.A.No.1052-2011 ## -:10:- ## **(1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** , In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.1,41,930/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 67 days i.e. the period of delay in filing the appeal and as ordered by this Court on 03.11.2021 in C.M. Application No.1/2011, and a cost of Rs.7500/-. The third respondent 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 of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- rmm/09.02.2022 ## **C.S.DIAS,JUDGE** M.A.C.A.No.1052-2011 -:11:- ## **APPENDIX** ## **APPELLANT’S EXHIBITS** EXHIBIT X1. THE DISABILITY ASSESSMENT BOARD CERTIFICATE OF THE APPELLANT BY THE MEDICAL COLLEGE HOSPITAL, THRISSUR