Uthaman S/o Subramaniyan ChettiYAR v Binumon S/o Subramaniyan; Binu M.; The National Insurance Co. Ltd.

**MACA No.2710 OF 2018** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **MACA.No.2710 OF 2018(A)** **AGAINST THE AWARD IN OPMV 443/2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA** ## **APPELLANT/PETITIONER:** **UTHAMAN S/O. SUBRAMANIYAN CHETTIYAR, VISHNU BHAVANAM, KARUVATTA (VIA), KARUVATTA. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL** ## **RESPONDENT/RESPONDENTS:** - **1 BINUMON S/O. SUBRAMANIYAN, KUTTIPARAMBIL PADEETTATHIL, KARUVATTA P.O., KARUVATTA – 690517.** - **2 BINU M., S/O. MANIYAN CHETTIYAR, KADAMPALLIL KIZHAKKATHIL, MUTHUKULAM NORTH, KAYAMKULAM 690506** **3 THE NATIONAL INSURANCE CO.LTD., REP. BY ITS BRANCH MANAGER, BRANCH OFFICE, KAYAMKULAM- 690502 R3 BY ADV. SRI.P.G.JAYASHANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA No.2710 OF 2018** **2** ## **JUDGMENT** The appellant is the claimant in OP(MV) No.443/2008 on the file of the Additional Motor Accident Claims Tribunal, Mavelikara. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of a motor accident that took place on 19.07.2007. The parties are, for the sake of convenience, referred to as per their litigate status in the appeal. 2. It is the case of the appellant that on 19.7.2007 while he was walking on the KollamAlappuzha National Highway, near the Karuvatta junction, he was knocked down by a motor cycle bearing Reg.No. KL-29-6945. He sustained serious injuries and was hospitalised. The motor cycle was driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. The accident occurred solely due to the rash and negligent **MACA No.2710 OF 2018** **3** driving by the 1[st] respondent. The petitioner claimed an amount of Rs.1,25,000/- towards compensation. 3. The respondents 1 and 2 were set ex-parte. 4. The 3[rd] respondent-Insurance Company filed a written statement, inter alia, contending that the accident occurred due to the negligence on the part of the petitioner. The amounts claimed in the claim petition were excessive. The appellant has not sustained any disability. Hence, the claim petition may be dismissed. 5. Neither party adduced any oral evidence. Exts.A1 to A10 were produced and marked on the side of the appellant. Ext.X1-disability certificate was marked as a court exhibit. 6. After considering the pleadings and the materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.74,734/- as compensation from the respondents, jointly and severally, with proportionate costs and interest at the **MACA No.2710 OF 2018** **4** rate of 7.5% per annum from the date of petition till the date of realisation. 7. The comparative table of compensation that was claimed by the appellant and that was awarded by the Tribunal is as follows:- |SI<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarde<br>d (in<br>rupees)|Details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earnings|18,000|9,000|Earning for<br>3 months| |2|Partial loss of<br>earnings|Nil|Nil|| |3|Transport<br>to<br>hospital|3,000|1,000|Reasonable<br>estimate| |4|Extra nourishment|4,000|1,000|Reasonable<br>estimate| |5|Damage to clothing|1,000|500|Reasonable<br>estimate| |6|Medical expenses|10,000|5,874|As per<br>Ext.A9 bills| |7|Bystander's<br>expenses|5,000|3,800|19 days IP<br>@ 200| |8|Compensation for<br>future treatment|Nil|Nil|| |9.|Pain and suffering<br>compensation for<br>the disfiguration|35,000|10,000|Considering<br>the injuries| |10.|Disability income|50,000|34,560|| |11.|Compensation for<br>loss of earning<br>power|||| |12.|Loss of amenities|15,000|9,000|Considering<br>the injuries| |13|Total|141,000<br>(Ltd to<br>Rs.1,25,00<br>0)|74,734|| **MACA No.2710 OF 2018** **5** 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, under the various heads mentioned above, the appellant has preferred this appeal. 9. Heard Sri.P.J.Joe Paul, the learned counsel appearing for the appellant and Sri.P.G.Jayashankar, the learned standing counsel appearing for the 3[rd] respondent. 10. This Court had by order dated 3.3.2020 had dispensed with notice to the respondents 1 and 2, as the 3[rd] respondent had admitted the insurance policy. 10. The sole question that emerges for consideration in this appeal is whether the appellant is entitled for enhancement of compensation. 11. 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, **MACA No.2710 OF 2018** **6** 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. 12. The appellant was aged 34 years as on the date of accident, i.e. 19.7.2007. He claimed that he was conducting a fertilizer shop and earning a monthly income of Rs.6,000/- He also claimed that he was partially disabled due to the accident. 13. The Tribunal referred the appellant to the Government T.D Medical College Hospital, Alappuzha to assess his disability. The Medical Board by Ext.X1 medical certificate dated 25.5.2017 found that the appellant had weakness on his right lower limb and stiffness on his right ankle. Accordingly, the Board assessed that the appellant had suffered 15% permanent/ partial disability. 14. Nevertheless, the Tribunal by the impugned award held that 15% permanent disability of the **MACA No.2710 OF 2018** **7** appellant fixed by the Board was on the higher side and re-fixed his permanent disability at 4%, for the purpose of calculating loss of earning capacity. ## **Disability of the appellant** 15. Undisputedly, neither the appellant nor the respondents have adduced any oral evidence. Going by the law laid down by the Hon'ble Supreme Court in ## **Rajkumar v. Ajaykumar [2011 (1) KLT 620 (SC)],** it has been laid down that when a Medical Board assesses the disability of an injured, the same has to be accepted. In view of the fact that no contra evidence has been let in by the respondents to disprove the disability assessed by the Expert Body, and the Tribunal not personally assessing the disability of the appellant; the Tribunal ought not to have substituted the findings of the Medical Board, which found that the appellant had weakness on his right lower limb and stiffness on his right lower ankle. Therefore, I hold that the assessment made by the Tribunal is based on surmises and conjunctures, **MACA No.2710 OF 2018** **8** without any rationale or basis. Consequently, I set aside the said finding and uphold the assessment made by the Medical Board. **Therefore, I fix the** ## **disability of the appellant at 15%.** 16. The appellant claimed to be doing fertilizer business. He had not produced any material to substantiate his income. However, in Ext.A1 - F.I.R he had reported to the Police that he was doing fertilizer business. The Tribunal fixed his income at Rs.4,500/-. ## **Income** 17. Going by the law laid down by the Supreme Court in **Ramachanrappa Vs. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735],** it has been held that the notional income of persons working in the unorganised sectors can be fixed at Rs.4,500/- per month in the year 2004, and Rs.6,500/- per month in the year 2007. As the accident occurred on 19.7.2007, the amount as claimed by the appellant in the claim **MACA No.2710 OF 2018** **9** petition ought to have been accepted. Accordingly, **I fix the income of the appellant at Rs.6,000/- per month.** ## **Multiplier** 18. The appellant was aged 34 years at the time of the accident. The multiplier to be adopted is 16, as per the decision in **Sarla Verma & Ors Vs. Delhi Transport Corporation [(2009) 6 SCC 121]** and **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** . ## **Loss due to disability with future prospects:** 19. The appellant was 34 years old on the date of accident, his monthly income is fixed at Rs.6,000/-, his disability is fixed at 15%, the multiplier is 16 and the loss of income is three months. **Thus, the total loss due to the disability with future prospects of the appellant is re-fixed at Rs.2, 41, 920/-,** instead of Rs.34,560/- fixed by the Tribunal under the head of claim - disability income. **MACA No.2710 OF 2018** **10** ## **Loss of earnings:** 20. The Tribunal has fixed the loss of earnings of the appellant at the rate of Rs.9,000/-for a period of three months. **In view of the finding that the income of the appellant is Rs.6,000/-, I re-fix the loss of earnings at Rs.18,000/- as claimed in the claim petition (i.e Rs 6,000 x 3 months)** ## **Other Heads of Claims** 21. With respect to the amounts claimed under the heads of claim - Transport to hospital, ExtraNourishment, Damage to clothing, Medical expenses, Bystander's expenses, Pain and suffering, compensation for disfiguration and loss of amenities in the comparative table above, I find that the Tribunal has awarded just and reasonable compensation to the appellant. 22. On an re-appreciation of the pleadings and materials on record, it is seen that the appellant had only claimed an amount of Rs.1,25,000/- in the claim **MACA No.2710 OF 2018** **11** petition. However, considering the law laid down by the Hon'ble Supreme Court in the decisions cited above and considering that just compensation is payable to the appellant, I find that the appellant is entitled to the above amounts, which is higher than what is claimed in the claim petition. 23. The question whether this Court can enhance the amount of compensation than what was claimed in the claim petition is no longer res integra in view of the law laid down by the Hon'ble Supreme Court in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 (SC)]** and in **Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]** . 24. Therefore, on an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am of the considered opinion that the appellant is entitled to enhanced compensation as modified and re-calculated above, and given in the table below for easy reference. **MACA No.2710 OF 2018** **12** |Sl.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded<br>(in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|Loss of earnings<br>(6000x3)|18,000|9,000|18,000| |2|Partial<br>loss<br>of<br>earnings|Nil|Nil|Nil| |3|Transport to hospital|3,000|1,000|1,000| |4|Extra nourishment|4,000|1,000|1,000| |5|Damage to clothing|1,000|500|500| |6|Medical expenses|10,000|5,874|5,874| |7|Bystander's<br>expenses|5,000|3,800|3,800| |8|Compensation for<br>future treatment|Nil|Nil|Nil| |9.|Pain and suffering<br>compensation<br>for<br>the disfiguration|35,000|10,000|10,000| |10.|Disability income|50,000|34,560|2,41,920| |11.|Compensation for<br>loss of earning<br>power|Nil|Nil|Nil| |12.|Loss of amenities|15,000|9,000|9,000| |13|Total|141,000<br>(Ltd to<br>Rs.1,25,00<br>0)|74,734|2,91,094<br>291094-<br>74734<br>=2,16,360| 25. The Tribunal in the impugned award had granted interest on the compensation only at the rate of 7.5% per annum. In light of the decision of the **MACA No.2710 OF 2018** **13** Hon'ble Supreme Court in **MCD v. Uphaar Tragedy Victims Association [(2011) 14 SCC 481],** and **Kishan Gopal & Another v. Lala and Others [2014) 1 SCC 244],** I fix interest at the rate of 9% per annum. 26. In the result, the appeal is allowed in part. The compensation granted by the Tribunal is enhanced, by granting the appellant a further amount of Rs.2,16,360/-( Rupees Two Lakh sixteen thousand three hundred and sixty only) by way of compensation, with interest at the rate of 9% per annum from the date of petition till the date of realisation, excluding the period of delay of 166 days in filing the appeal, and proportionate costs. The 3[rd] respondent shall satisfy the additional compensation granted in this appeal by depositing the amount together with interest and the proportionate costs 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 appellant towards balance court fee and **MACA No.2710 OF 2018** **14** legal benefit fund. The disbursement of the additional compensation shall be made to the appellant in accordance with law. ma/23/9/2020 Sd/- **C.S.DIAS, JUDGE** /True copy/