VIBEESH.K.K v. Biju Joseph, Tony J. Anthikkad, and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943** ## **MACA NO. 2371 OF 2009** ## **AGAINST THE COMMON AWARD IN OPMV 893/2005 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** VIBEESH.K.K, S/O KRISHNAN, KUTTIKATTIL HOUSE, GURUVAYOOR.P.O., KARAMKOT BAZAR. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** - 1 BIJU JOSEPH , S/O JOSEPH AGOUSTY IRITHITHATTIL HOUSE, KARIMBAN MANIFFERA, IDUKKI. - 2 TONY.J. ANTHIKKAD HOUSE ANTHIKKAD, KOTTAYAM. - 3 NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE, KOTTAYAM, (POLICY NO.570600/31/, 04/6308863 VALIDITY 18.2.2005 TO 9.2.2006. BY ADV SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No2371-2009 **Dated this the 29[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.893/2005 on the file of the Motor Accidents Claims Tribunal, Ottapalam. 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 (in short ‘the Act’, claiming compensation on account of the injuries that he sustained in an accident on 20.04.2005 It was his case that, on the aforesaid date, while he was riding a motorcycle bearing registration No. KL 8Y 291 along the Kunnamkulam - Thrissur road, when he reached a place named Mundur, a bus bearing 3 MACA No2371-2009 registration No. KL 5K 5590(bus), driven by the first respondent in a rash and negligent manner, hit the motorcycle. The appellant sustained serious injuries and was treated as an inpatient in three spells for a period of 40 days at three different hospitals. The bus was owned by the second respondent and insured with the third respondent. The appellant was a barber by profession and was earning a monthly income of Rs.4000/-. Hence the appellant claimed a compensation of Rs.7,43,500/- from the respondents, which claim was limited to Rs.5,00,000/-. 3. The pillion rider on the same motorcycle, who also sustained injuries, filed O.P.(M.V.) No.894/2005 before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceedings. 5. The third respondent had filed separate written statements in the two claim petitions refuting the allegations in the claim petitions. The third respondent 4 MACA No2371-2009 contended that the accident occurred due to the negligence of the appellant. The third respondent also disputed the age, income and occupation of the appellant. However, the third respondent admitted that the bus had a valid insurance coverage. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The appellant was examined as PW1 and Exhibits A1 to A25 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,03,080/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.1500/-. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard Sri. Sheji P. Abraham, the learned 5 MACA No2371-2009 counsel appearing for the appellant/petitioner and Smt. Raji T. Bhaskar, the learned counsel appearing for the 3[rd] respondent/insurer. 11. The sole 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** 12. Exhibit A6 charge sheet filed by the Peramangalam police in Crime No.177/2005, substantiates that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Exhibit A6, charge sheet. The third respondent had admitted that the bus had a valid insurance coverage. The third respondent has not proved that the second respondent has violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the 6 MACA No2371-2009 second respondent arising out of the accident. ## **Income** 13. The appellant had claimed that he was a barber by profession and earning a monthly income of Rs.4000/-. The Tribunal, for the lack of materials, fixed the notional monthly income of the appellant at Rs.2000/-. 14. 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. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005 and that the appellant had claimed that he was earning a monthly income of Rs.4000/-, I have no hesitation to fix the notional monthly income of the appellant at Rs.4000/-. 7 MACA No2371-2009 ## **Disability** 16. The appellant had contended that he had sustained serious injures as a result of the accident, including a fracture of his mandible and an injury to his liver. The appellant had produced Exhibit A15 disability certificate issued by the Assistant Professor of Surgery, Government Medical College Hospital, Thrissur. The Tribunal, after appreciating the said document and considering the nature of injuries sustained by the appellant, fixed the functional disability of the appellant at 7%. I do not find any error in the assessment of the functional disability of the appellant at 7%, which I do confirm. 17. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.4000/and taking note that the appellant was 20 years at the time of the accident, and the relevant multiplier being ‘18’ in view of the ratio in **Sarla Verma and Others v.** 8 MACA No2371-2009 ## **Delhi Transport Corporation and another[(2009) 6** **SCC 121],** I re-fix the compensation for ‘loss due to disability’ at Rs.60,840/-, instead of Rs.26880/- fixed by the Tribunal. ## **Loss of earnings** 18. The Tribunal has held that the appellant was indisposed for a period of three months and, accordingly, awarded the appellant an amount of Rs.6000/- towards loss of earnings. 19. It is on record, as evidenced from Exhibit A14 wound certificate, Exhibits A16 to A19 discharge summaries, that the appellant was treated at three hospitals for the period from 20.04.2005 to 31.05.2005 in three spells. The appellant had sustained a fracture of his mandible, he had undergone surgery and done maxilla facial consultation and also had sustained an injury to his liver. Being a barber by profession, certainly, with the nature of injuries sustained, the 9 MACA No2371-2009 appellant could not carry on his work at least for a period of six months.. Therefore, I hold that the appellant was indisposed for a period of six months. 20. In view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award him an amount of Rs.24,000/- towards ‘loss of earnings’, instead of Rs.6000/- awarded by the Tribunal. ## **- By stander expenses and extra nourishment** 21. The appellant was treated as an inpatient for a period of 40 days in three hospitals. The Tribunal has awarded an amount of Rs.6000/- towards by-stander expenses, which is too meagre. Therefore, I re-fix the by-stander expenses at Rs.250/- per day for a period for a period of 40 days, which works out to Rs.10,000/-. Similarly, I award the appellant Rs.6000/- towards extra nourishment i.e. Rs.150/- per day for a period of 40 days. Likewise, I award an amount of Rs.1000/- towards transportation expenses and Rs.500/- towards clothing expenses. 10 MACA No2371-2009 ## **Loss of amenities** 22. In view of the serious injuries sustained by the appellant, that he was indisposed for a period of six months, that suffered a functional disability of 7%, and that he was treated as an inpatient for a period of 40 days, I award him an amount of Rs.10,000/- towards ‘loss of amenities’. 23. With respect to the compensation awarded under the head pain and sufferings and reimbursement of medical expenses, I find the Tribunal has awarded reasonable and just compensation. 24. On a comprehensive 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. 11 MACA No2371-2009 |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|6000|24000| |2|Transportation/clothing/extra<br>nourishment|6000|7500| |3|By stander expenses|6000|10000| |4|Medical expenses|34200|34200| |5|Pain and suferings|25000|25000| |6|Loss of amenities|10000|10000| |7|Loss due to disability|26880|60840| ||Total|103080|1,71,540| In the result, the appeal is allowed by enhancing the compensation by an amount of Rs.68,460/- (Rupees sixty eight thousand four hundred and sixty only) 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 109 days i.e the period of delay in filing the appeal and as ordered by this Court on 23.9.2021 in C.M.Application No. 1/2009, and a cost of Rs.10000/-. The third respondent 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. Immediately on the 12 MACA No2371-2009 compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant/petitioner in accordance with law. SD/- **C.S.DIAS, JUDGE** rmm29/11/2021