USMAN P.K. v. Rajesh Kumar P.S., Jayalal R. and Shriram General Insurance Company Ltd

1 MACA.No.2010 OF 2015(C) ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 7[th] DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** ## **MACA.No.2010 OF 2015(C)** **AGAINST THE AWARD IN OPMV 604/2010 DATED 27-03-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** **USMAN.P.K AGED 48 YEARS S/O.KOCHUNNI, PALLURUTHIPARAMBU HOUSE, MADAVANA, PANANGAD P.O., REPRESENTED BY THE NEXT FRIEND K.B.JAMEELA, W/O.USMAN P.K., PALLURUTHIPARAMBU HOUSE, MADAVANA, PANANGAD P.O.,** **BY ADVS. SMT.SALLY THOMAS CHACKO SRI.P.T.THOMAS PERAKATH** ## **RESPONDENT/S:** **1 RAJESH KUMAR.P.S S/O.SIVAN CHETTIYAR, PUTHUVACHIRAYIL, CHERTHALA P.O., CHERTHALA (DRIVER) 2 JAYALAL R. S/O.K.K.RAGHAVAN, KANDATHIPARAMBIL HOUSE, MUTTATHIPARAMBU P.O., CHERTHALA (DRIVER) 3 SHRIRAM GENERAL INSURANCE COMPANAY LTD HEAD OFFICE-8, RIICO INDUSTRIAL AREA, SITA PURA, JAIPUR, 302 022, HAVING ITS BRANCH OFFICE, AZAD TOWER, AMMANKOVIL CROSS ROAD, ERNAKULAM, COCHIN.** **R1 BY ADV. SMT.A.C.ANITHA R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 7.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA.No.2010 OF 2015(C) ## **C.S.DIAS, J. ====================== MACA No.2010 of 2015** **====================== Dated this the 7[th ] day of December, 2020.** ## **JUDGMENT** The appellant was the claimant in OP(MV) No.604/2010 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition through his next friend - his wife - under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in a motor accident that took place on 4.10.2009. 3. The case of the petitioner, in brief, in the claim petition is that, on 4.10.2009, while he was riding the motor cycle bearing registration No.KL-39/580 along the Aroor- 3 MACA.No.2010 OF 2015(C) Vyttila stretch of NH-47, when he reached near Nettoor junction, Ernakulam, a bus bearing registration No.KL-04K9090 (offending vehicle) driven by the first respondent hit the motor cycle. The second respondent is the owner and the third respondent is the insurer of the offending vehicle. The petitioner sustained serious injuries and was taken to the Lakeshore Hospital, Ernakulam. The accident occurred due to the rash and negligent driving of the offending vehicle by the first respondent. The petitioner was running a ready made garment shop and doing real estate business. He had a monthly income of Rs.75,000/-. The respondents are liable to pay compensation to the petitioner, which he quantified at Rs.50,00,000/-. 4. The respondents 1 and 2 filed a joint writtenstatement, inter alia, contending that the accident occurred due to the negligence of the petitioner and that the compensation claimed was excessive. However, the offending vehicle was insured with the third respondent. 5. The third respondent filed a written-statement admitting that the offending vehicle had a valid insurance 4 MACA.No.2010 OF 2015(C) policy. It was contended that the bus did not have a valid permit and the first respondent had no valid driving licence. Therefore, there was violation of the insurance policy conditions. 6. The petitioner's next friend and two other witnesses were examined as PWs 1 to 3 and Exts A1 to A25 were marked through them. The disability certificate was marked as Ext C1. Exts X1 to X6 were summoned and marked through PW1. 7. The Tribunal after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the petitioner to realise an amount of Rs.23,85,100/- as compensation from the third respondent with interest and cost. 8. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |SI<br>No|Head of claim|Amount claimed<br>(in rupees)|Amount awarded by<br>the Tribunal(in<br>rupees)| |---|---|---|---| |1|Loss of earnings|171000|171000| 5 MACA.No.2010 OF 2015(C) |2|Partial loss of<br>earnings|260000|0| |---|---|---|---| |3|Transport to hospital<br>and back home|20000|20000| |4|Extra nourishment|25000|25000| |5|Damage to clothes and<br>articles|2000|500| |6|Medical expenses|2000000|1190000| |7|Bystander's expenses|75000|75000| |8|Compensation for pain<br>and sufferings|50000|50000| |9|Compensation<br>for<br>continuing<br>and<br>permanent disability|2500000|678600| |10|Compensation for loss<br>of<br>amenities<br>and<br>enjoyment in life|25000|25000| |11|Anticipated<br>future<br>treatment expenses|500000|150000| |12|Total|**5628000**|**2385100**| ||Claim<br>limited<br>to<br>Rs.50,00,000/-||| 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner has approached this Court by filing the appeal. 10. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the third respondent. 11. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 6 MACA.No.2010 OF 2015(C) 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. Going by the ratio decidendi laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** and **United India Insurance Co. Ltd v. Satinder Kaur @ Satwindr Kaur and Others** **[2020 (3) KHC 760 (SC)],** the relevant multiplier is 13, which is also not disputed by both sides. 14. Admittedly, the petitioner was aged 48 years at the time of accident. Ext C1 certificate issued by the T.D 7 MACA.No.2010 OF 2015(C) Medical College Hospital, Alappuzha, proves that the petitioner has 87% permanent disability. 15. The age, permanent disability, period of treatment and treatment expenses etc, are not seriously disputed by both sides. The principal dispute is with regard to the notional income of the petitioner fixed by the Tribunal and non-awarding of compensation for future prospects. The petitioner had claimed that he was having a monthly income of Rs.75,000/-, but for want of evidence, the Tribunal fixed the petitioner's notional income at Rs.5,000/-. ## **Income** 16. Coming to the disputed question regarding the income of the petitioner. The petitioner has pleaded in column No.6 of the claim petition that he was getting a monthly income of Rs.75,000/- from his ready made garment shop named 'Select Garments' and real estate business. The petitioner had produced Annexure A18 document to prove that he was a member of Merchants' Union, Annexure A22 letter to shown he was paying licence fee to run the garment shop and Annexure A24 series to 8 MACA.No.2010 OF 2015(C) prove that he had purchased garments to be sold in the shop. Other than for these materials, there was nothing on record to prove the income of the petitioner. 17. The Tribunal, in paragraph 10 of the impugned award, came to the conclusion that due to the lack of materials, only notional income of the the petitioner can be taken, which was fixed at Rs.5,000/- per month. The Tribunal made a further observation that the petitioner could have at least produced his account books. 18. In the appeal, the petitioner with I.A produced his balance-sheets for the years 2008-2009 and 2009-2010, which were accepted in evidence as per order in I.A No.760/2018 and were marked as Annexures A1 to A3. 19. In Annexure A3 balance-sheet, for the period from 1.4.2009 to 31.3.2010, certified by a Chartered Accountant, it is seen that the petitioner had a gross profit of Rs.3,71,616/- for the financial year 2009-2010, which includes his business and stitching charges. Therefore, the petitioner had a gross monthly income of Rs.30,968/-. Going by the normal accepted standards, half of the income 9 MACA.No.2010 OF 2015(C) can be deducted towards expenses. Yet, the petitioner will have a net monthly income of approximately Rs.15,000/-. 20. The Hon'ble Supreme Court while dealing with fixation of notional income in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and **Syed Sadiq** **v. Divisional Manager, United India Insurance Co. Ltd.** **[(2014) 2 SCC 735]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- and in the case of vegetable merchant in the year 2008 at Rs.6,500/-, respectively. 21. This Court in **Soman vs. Jinesh James and others [ILR 2020 (3) Kerala 1003]** has fixed the notional income of a coolie worker in the year 2010 at Rs.7,500/-. 22. In light of the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, and the findings above with respect to Annexure A3, I am of the considered opinion that the petitioner's monthly notional income can safely be refixed at Rs.10,000/- per 10 MACA.No.2010 OF 2015(C) month, instead of Rs.5,000/- as fixed by the Tribunal. Accordingly, I refix the notional income of the petitioner at Rs.10,000/- per mensum. ## **Future Prospects** 23. Going by the ratio laid down by the Hon'ble Supreme Court in **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , **United India Insurance Co. Ltd v. Satinder Kaur @ Satwindr Kaur and Others [2020 (3) KHC 760 (SC)]** and the most recent decision in **Pappu Deo Yadav Vs. Naresh Kumar and others (Civil Appeal No.2567/2020),** I am of the definite opinion that, particularly considering the age of the petitioner and that he has 87% permanent disability as evidenced by Ext C1, compensation for future prospects has to be awarded to the petitioner, which I fix at 25% on the compensation for total permanent disability. In the said circumstances, I hold that the petitioner is entitled for compensation for future prospects at the rate of 25% . 11 MACA.No.2010 OF 2015(C) ## **Loss of earnings** 24. Although I have refixed the notional income of the petitioner at Rs.10,000/-, but as the petitioner has claimed only an amount of Rs.1,71,000/- under the head 'loss of earnings', which has been granted by the Tribunal, I do not find any reason to enhance the amount any further under the said head. ## **Other heads of claim** 25. With respect to the other heads of claim, namely, transportation, extra nourishment, damage to clothing, medical expenses, bystander expenses, compensation for pain and sufferings, compensation for loss of amenities and anticipated future treatment expenses, I find that the Tribunal has awarded reasonable and just compensation. 26. Therefore, on an overall appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the considered opinion that the petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy 12 MACA.No.2010 OF 2015(C) ## reference. |SI<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded by<br>the Tribunal(in<br>rupees)|Amounts<br>modified and<br>re calculated<br>by this Court| |---|---|---|---|---| |1|Loss of earnings|171000|171000|1,71,000/-| |2|Transport<br>to<br>hospital and back<br>home|20000|20000|20,000/-| |3|Extra nourishment|25000|25000|25,000/-| |4|Damage to clothes<br>and articles|2000|500|500/-| |5|Medical expenses|2000000|1190000|11,90,000/-| |6|Bystander's<br>expenses|75000|75000|75,000/-| |7|Compensation for<br>pain and sufferings|50000|50000|50,000/-| |8|Compensation for<br>continuing<br>and<br>permanent<br>disability|2500000|678600|16,96,500/-| |9|Compensation for<br>loss of amenities<br>and enjoyment in<br>life|25000|25000|25,000/-| |10|Anticipated future<br>treatment expenses|500000|150000|1,50,000/-| ||||2385100|34,03,000/-| In the result, the appeal is allowed in part. The compensation granted by the Tribunal is modified and enhanced by granting the petitioner a further amount of Rs.10,17,900/- (Rupees Ten Lakh Seventeen thousand Nine Hundred only) by way of compensation, with interest @ of 13 MACA.No.2010 OF 2015(C) 8% p.a on the enhanced amount, from the date of petition till the date of realisation with proportionate costs. The third respondent shall satisfy the additional compensation awarded in this appeal with interest and the proportionate costs by depositing the said amount before the Tribunal, within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the petitioner towards balance court fee and legal benefit fund. The Tribunal shall disburse the additional compensation to the petitioner, in accordance with law. **Sd/-** **C.S.DIAS** SKS/3.12.2020 **JUDGE** 14 MACA.No.2010 OF 2015(C) ## **APPENDIX** **APPELLANT'S ANNEXURES** **A1- BALANCE SHEET IN THE NAME OF THE APPELLANT AS ON 31.3.2008** **A2-BALANCE SHEET IN THE NAME OF THE APPELLANT AS ON 31.3.2009** **A3-BALANCE SHEET IN THE NAME OF THE APPELLANT AS ON 31.3.2010.**