Vijayan K.N. v. Abilash, Sherif M.P. and National Insurance Company Limited

MACA NO. 831 OF 2012 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943** **MACA NO. 831 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 140/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** **APPELLANT/S:** VIJAYAN K.N. S/O.NARAYANAN, RESIDING AT KAIPPILLY HOUSE,KAIPPILLY DESOM, VELUTHUR VILLAGE, ARIMPUR P.O,THRISSUR. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## **RESPONDENT/S:** 1 ABILASH, S/O.JAYAPRAKASH, RESIDING AT KOOLIYADU HOUSE,KOTTAPPADY, CHOOLPPURAM DESOM, GURUVAYUR VILLAGE,THRISSUR - 680 101. 2 SHERIF.M.P, S/O.KUNHIMON, RESIDING AT NALAKATH HOUSE, KOTTAPPADY, CHOOLPPURAM DESOM, GURUVAYUR VILLAGE,THRISSUR - 680 101. 3 NATIONAL INSURANCE COMPANY LIMITED, FIRST FLOOR, SREENARAYANA TRUST BUILDING,OPPOSITE TOWNSHIP BUS STAND, EAST NADA,GURUVAYUR, THRISSUR - 680 101. BY ADV SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 831 OF 2012 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.140/2008 on the file of the Motor Accidents Claims Tribunal, Ottappalam. 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 that he sustained in an accident on 07.09.2007. He has averred in the claim petition that, he was aged 38 years and was employed in Sreeram Motor Driving School, Triprayar. It was his case that, on 07.09.2007, while he was riding his motor cycle bearing registration No.KL-9/Y 979 through Kunnamkulam – Chavakkad road, when he reached in front of Cholappuram India Motors, a motor cycle bearing bearing registration No.KL 9/P 9944 (offending motor cycle), driven by the 1[st] respondent in a rash and negligent manner, hit the motor cycle of the appellant. The appellant sustained serious injuries and was taken to the Abdul Wahab Memorial Rajah Hospital, Muthuvattoor. He was treated as an inpatient for a MACA NO. 831 OF 2012 3 period of three days. The appellant sustained dislocation of his right knee and other bodily injuries. He was employed as an Instructor in Sreeram Motor Driving School and was earning a monthly income of Rs.4,000/-. The offending motor cycle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.2,45,500/- from the respondents, which was limited to Rs.1,50,000/-. 3. The respondents 1 and 2 did not contest the proceedings. 4. The 3[rd] respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence on the part of the appellant. The 3[rd] respondent also denied the age, income and occupation of the appellant and contended that the compensation claimed was excessive. 5. The appellant was examined as PW1 and Exts.A1 to A13 were marked through him in evidence. The 3[rd] respondent marked Exts.B1 and B2 in evidence. 6. The Tribunal, after analyzing the pleadings and the materials on record, allowed the claim petition in part, by MACA NO. 831 OF 2012 4 permitting the appellant to realise from the 3[rd] respondent an amount of Rs.28,150/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri. T.C. Suresh Menon, the learned counsel appearing for the appellant/petitioner and Sri. Lal George, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The 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** 10. Ext.A5 charge sheet filed by the Guruvayoor Police in Crime No.537/2007 clearly proves that the accident occurred due to the negligence of the 1[st] respondent. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the offending motor cycle. The 3[rd] respondent admitted the insurance coverage and has not proved that the 2[nd] respondent has violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. MACA NO. 831 OF 2012 5 ## **Notional Income** 11. The appellant had claimed that he was an instructor in Sreeram Motor Driving School, Thriprayar and earning a monthly income of Rs.4,000/-. However the Tribunal fixed the notional income of the appellant at Rs.3,500/- per month. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2007, and that the appellant had claimed that he was earning a monthly income of Rs.4,000/-, I hold that the appellant’s monthly income can safely be fixed at Rs.4,000/per month as claimed in the claim petition. ## **Loss of earnings** 14. The appellant had claimed that he was indisposed for a period of two months. The said assertion was accepted by the Tribunal and his 'loss of earnings' was fixed at Rs.7,000/-. MACA NO. 831 OF 2012 6 15. In view of re-fixation of the notional monthly income of the appellant at Rs.4,000/-, I enhance the compensation under the head 'loss of earnings' by a further amount of Rs.8,000/-. ## **Loss due to disability** 16. Even though the appellant had claimed compensation for loss due to disability at Rs.50,000/-, the Tribunal rejected his claim for the reason that he had not proved the disability sustained by him. 17. The appellant had made a request before this Court to refer him to a duly constituted Medical Board. This Court by order dated 21.03.2019, referred the appellant to a Medical Board attached to the Medical College Hospital, Mulankunnathukavu, Thrissur, who by the 'Disability Assessment Board Certificate' dated 21.05.2019 has assessed the functional disability/occupational disability of the appellant at 30%. 18. Considering the injury sustained by the appellant to his right knee and that he was an Instructor by profession in a driving school, I accept the assessment of functional disability by the Medical Board at 30%. The said certificate is MACA NO. 831 OF 2012 7 accepted on record and marked in evidence as Ext.X1. ## **Multiplier** 19. The appellant was aged 38 years as on the date of accident. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** : 2010 (2) KLT 802, the relevant multiplier to be adopted is '15'. Accordingly, I fix the multiplier at ‘15’. ## **Loss due to disability** 20. Following the aforementioned factors, namely the monthly income of the appellant at Rs.4,000/-, his functional disability at 30% and multiplier at '15', I fix the compensation for 'loss due to disability' at Rs.2,16,000/-. ## **Compensation for Pain and Sufferings and Loss of amenities** 21. The appellant had claimed an amount of Rs.35,000/under the head 'pain and sufferings' and Rs.25,000/- under the head 'loss of amenities'. However, the Tribunal awarded only an amount of Rs.6,000/- and Rs.3,000/- under the aforesaid heads. 22. Taking into account the fact that the appellant had sustained serious injuries to his right knee, that he was MACA NO. 831 OF 2012 8 indisposed for a period of two months, that he was treated as an inpatient for a period of three days and that he has sustained a permanent functional disability of 30%, I hold that the appellant is entitled for enhancement of compensation under the aforesaid heads by a further amount of Rs.19,000/- and Rs.22,000/-, respectively, viz. compensation of Rs.25,000/- each, under the said heads. 23. With respect to the other heads of compensation, namely transport expenses, clothing, bystander expense, extra nourishment and medical expenses, I find that 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 precedents, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table for easy reference. **==> picture [436 x 118] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 7,000 8,000<br> 2. Medical Expenses 9,750 9,750<br>**----- End of picture text -----**<br> MACA NO. 831 OF 2012 9 **==> picture [436 x 289] intentionally omitted <==** **----- Start of picture text -----**<br> 3. Bystander expenses 600 600<br>4. Transportation 1,000 1,000<br>expenses<br>5. Extra nourishment 300 300<br>6. Damage to clothing 500 500<br>7. Pain and sufferings 6,000 25,000<br>8. Loss of amenities 3,000 25,000<br>9. Loss due to disability 0 2,16,000<br>Total 28,150 2,86,150<br>**----- End of picture text -----**<br> 25. Even though the appellant had claimed only an amount of Rs.1,50,000/- as compensation, following the ratio in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], I hold that as the claimant is entitled for just and reasonable compensation, I award him more compensation than what is awarded by the Tribunal. The said course is permissible, in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)], wherein the Honourable Supreme Court has held that there is no restriction in awarding more compensation than MACA NO. 831 OF 2012 10 what is claimed in the claim petition. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.2,58,000/- with interest at the rate of 8% per annum from the date of petition till the date of deposit and proprotionate cost of Rs.5,000/-. The 3[rd] respondent is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law, after deducting his liability, if any, towards payment of court fee. Sd/- **C.S.DIAS, JUDGE** rkc