Vincent v. G. Boopathy and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943** ## **MACA NO. 1694 OF 2011** **AGAINST THE AWARD DATED 28.12.2009 IN OPMV 1412/2003 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , THRISSUR** ## **APPELLANT/PETITIONER:** VINCENT, S/O DEVASSY KUTTUKKARAN HOUSE, PERINGOTTUKKARA, THRISSUR DISTRICT. BY ADV SRI.T.C.SURESH MENON ## **RESPONDENTS/RESPONDENTS:** 1 G.BOOPATHY , S/O GOPALAKRISHNAN VITAL ROAD, KABAKKA, PUTHUR, KARA, SOUTH MANGALORE, KARNATAKA STATE. 2 KALIMUTHU S/O.LAKSHMANAN 21/E4, M.K.NAGAR, RAMESWARAM P.O., RAMANATHAPURAM DISTRICT, TAMILNADU. 3 THE NATIONAL INSURANCE CO.LTD. 74-A, PARAMATHY ROAD, NAMAKKAL DISTRICT, TAMILNADU. BY ADV SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1694 OF 2011 2** Dated this the 24[th] th day of September,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1412/2003 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 that he sustained in an accident on 16.03.2003. It was his case that, while he was driving a mini tourist bus bearing registration No. KL 8/T 2600 through the Thrissur-Palakkad National Highway, when the bus reached a place named ## **MACA NO. 1694 OF 2011 3** Charaparambu Kuzhalmandham, a container lorry bearing registration No. KA 21/4736(lorry), driven by the 2[nd] respondent in a rash and negligent manner and at excessive speed came from the opposite side and hit the bus driven by the appellant. The appellant sustained serious injuries and was taken to the Crescent Hospital, Alathur and, thereafter, referred to the Elite Mission Hospital, Thrissur, where he underwent treatment as inpatient. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a driver by profession and earning a monthly income of Rs.6000/-. He claimed an amount of Rs.3,28,500/- as compensation from the respondents, which was limited to Rs.2,20,000/-. 3. The other injured in the accident also preferred O.P.(.M.V) Nos.1409, 1410,1411,1420,2034, 2035, 2036, 2037, 2038 and 2039 of 2003 before the same Tribunal, against the respondents. ## **MACA NO. 1694 OF 2011 4** 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent had filed a written statement refuting the allegations in all the claim petitions. It was contended that the accident occurred due to the rash and negligent driving of the mini bus by the appellant. However, the 3[rd] respondent admitted that the lorry had a valid insurance policy. It was also contended that the compensation claimed by all the claimants were excessive and unreasonable. The 3[rd] respondent prayed that all the claim petitions be dismissed. 6. The Tribunal consolidated and jointly tried all the claim petitions. The petitioners in all the claim petitions produced and marked Exhibits A1 to A32 in evidence. A witness was examined as RW1 on the side of the respondents and Exhibits B1 and B2 and Exhibit X1 were marked in evidence. ## **MACA NO. 1694 OF 2011 5** 7. The Tribunal by its common award allowed the captioned claim petitions, by permitting the appellant to realise from the 3rd respondent an amount of Rs.1,39,700/- with interest at the rate of 7% per annum from the date of filing the petition till the date of realisation and a cost of Rs.2000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.T.C.Suresh Menon the learned counsel appearing for the appellant/petitioner and Sri. Lal George the learned counsel appearing for the third respondent/insurer. 10. The sole 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** 11. Exhibit A5 charge sheet substantiates that the accident occurred due to the negligence of the 2[nd] ## **MACA NO. 1694 OF 2011 6** respondent. Admittedly, the 1st respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The 3[rd] respondent had admitted that the lorry had a valid insurance and did not that the 1[st] coverage allege respondent had violated the policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 12. The appellant produced Exhibit A16 salary certificate to substantiate that he was getting daily wages of Rs.250/-. The appellant did not examine any person to prove the document. It is also not specified in Ext.A16, the number of days that the appellant used to work in a year. The Tribunal taking into account the above factors, fixed the monthly notional income of the appellant at Rs. 3000/- . 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** ## **MACA NO. 1694 OF 2011 7** [(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. 14. Following the benchmark in the above-cited decision and keeping in mind that the accident occurred in the year 2003, I am of the firm opinion that the appellant’s notional income is to be fixed at Rs.4000/- per month. ## **Loss of earnings** 15. It is proved that the appellant had sustained fracture on the shaft of the right femur with a punctured wound, and fracture of the medial cortex of left tibia. Exhibit A15 discharge summary shows that the appellant was hospitalised from 16.03.2003 to 26.03.2003 that is for a period of ten days. As the appellant sustained two fractures on both his legs, he claimed that he was incapacitated for a period of nine months. However, the Tribunal held that the appellant was incapacitated for a ## **MACA NO. 1694 OF 2011 8** period of three months. 16. Taking into account the nature of serious injuries that the appellant suffered, as reflected in the wound certificate and the discharge summary, I am of the definite opinion that the appellant was indisposed for a period of six months, instead of three months as held by the Tribunal. 17. In such circumstances, I hold that the appellant is entitled for loss of earnings for a period of six months at the rate of Rs.4000/- which comes to an amount of Rs.24,000/-. ## **Loss due to disability** 18. It is proved by Exhibit A17 disability certificate, that the appellant had sustained 10% functional disability. The said assessment was accepted by the Tribunal. 19. In view of the re-fixation of the notional income of the appellant at Rs.4000/- per month, I hold that the appellant is entitled to Rs.72,000/- as compensation for **MACA NO. 1694 OF 2011 9** loss due to disability instead of Rs.54,000/- awarded by the Tribunal. ## **Loss of amenities** 20. It is already found above, that the appellant was indisposed for a period of six months, he had sustained two fractures and he has suffered a permanent disability of 10%. Therefore, I hold that the appellant is entitled for compensation for loss of amenities at Rs.20,000/- instead of Rs.12,000/- awarded by the Tribunal i.e. an enhancement of Rs.8000/- 21. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and ## **MACA NO. 1694 OF 2011 10** ## given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Loss of earnings|12000|24000| |2|Transportation<br>expenses|1000|1000| |3|Clothing|500|500| |4|By-stander<br>expenses|1500|1500| |5|Extra nourishment|500|500| |6|Medical expenses|38200|38200| |7|Pain and sufferings|20,000|20000| |8|Loss of amenities|12000|20000| |9|Loss<br>due<br>to<br>disability|54000|72000| ||**Total**|**139700**|**177700**| In the result, the appeal is allowed in part, by ## **MACA NO. 1694 OF 2011 11** enhancing the compensation by a further amount of Rs.38,000/- with interest at the rate of 7 % per annum from the date of petition till the date of deposit, after deducting interest for a period of 427 days i.e., the period of delay in filing the appeal and as ordered by this Court on 15.11.2011 in C.M.Appln. No.2550/2011, and a cost of Rs.3000/-. 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 this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant in accordance with law. It is made clear that the right of the 3[rd] respondent to pay and recover the entire compensation amount as permitted by the Tribunal is confirmed. Therefore, the 3[rd] respondent is also permitted to pay and recover the enhanced compensation from the 1[st] respondent. All pending interlocutory applications will stand ## **MACA NO. 1694 OF 2011 12** closed. Sd/- **C.S.DIAS,JUDGE** rmm