V.M. Lazer v. Vasanth Kumar P. and Suresh K.B and The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 30[TH] DAY OF JUNE 2021 / 9TH ASHADHA, 1943** **MACA NO. 607 OF 2008** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1449/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** V.M.LAZER, S/O.MANI, RESIDING AT VAZHAPILYY HOUSE, P.O. CHERPU, THRISSUR DISTRICT BY ADVS. SRI.V.CHITAMBARESH (SR.) SRI.P.S.APPU SRI.JIBU P THOMAS SRI.T.C.SURESH MENON ## **RESPONDENTS/RESPONDENTS:** 1 VASANTH KUMAR P., RESIDING AT KORAPPATH HOUSE, CHIYYARAM, THRISSUR. 2 SURESH K.B, S/O. K.V.BALAN, RESIDING AT KUNDOR HOUSE P.O.,THRIKKUR, THRISSUR DISTRICT. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE,KOLLANNUR BUILDING,, P.B.NO.513,PALACE ROAD,THRISSUR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 607 OF 2008 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1449 of 2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents in the claim petition. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 10.10.2010, while the appellant was riding on a motorcycle bearing Reg.No.KER 67 through the Venginissery Ammadam public road, a bus bearing Reg. No.KER 5637 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner hit on the motorcycle. The appellant sustained comminuted fractures of both his legs and suffered other injuries. He was treated at the Elite Mission Hospital, Koorkenchery from the date of accident till 28.1.2002. The 1[st] respondent was the owner of the **MACA NO. 607 OF 2008 3** offending vehicle and the 3[rd] respondent was the insurer. The appellant was an interior designer by profession and was earning a monthly income of Rs.7,500/-. The appellant sustained permanent disability. He claimed compensation from the respondents, which he quantified at Rs.3,64,000/-, but limited to Rs.2,50,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3rd respondent filed a written statement, admitting that the offending vehicle had a valid insurance policy. However, the 3[rd] respondent disputed the age, occupation and income of the appellant. It was also contended that the compensation amount was excessive. 5. The appellant examined the doctor who issued the disability certificate and Exts.A1 to A9 series were marked in evidence. **MACA NO. 607 OF 2008 4** 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by permitting the appellant to realize an amount of Rs.1,15,200/- as compensation from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 8. Heard, Sri. T.C.Suresh Menon, the learned counsel appearing for the appellant/petitioner and Sri.Lal K Joseph, the learned counsel appearing for the 3[rd] respondent. 9. The sole question that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. A constitution Bench of the Hon'ble Supreme **MACA NO. 607 OF 2008 5** 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 nonviolation of the principle of equitability. 11. Exts.A5 charge sheet filed by the police substantiates that the accident occurred on solely account of the rash and negligent driving of the offending vehicle by the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer. Therefore, it is the 3[rd] respondent, who is liable to indemnify the 2[nd] respondent for the liability **MACA NO. 607 OF 2008 6** caused on account of the accident. 12. The appellant had claimed that he was an interior decorator by profession. Although he claimed that he was earning a monthly income of Rs.7,500/- per month, for want of material, the Tribunal disbelieved the assertion and fixed his notional monthly income at Rs.2,000/-. ## **Notional Income** 13. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236),**_ has fixed the notional income of a Coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decision and considering that the appellant was aged 45 years at the **MACA NO. 607 OF 2008 7** time of accident and that he was an interior decorator by profession, I am of the opinion that the appellant's notional can safely be fixed at Rs.3,500/- per month. Hence, I fix the appellant's notional income at Rs.3,500/per month. ## **Loss of earnings** 15. As per Ext.A2 wound certificate, Ext.A6 discharge card and Ext.A7 disability certificate, the appellant sustained fractures on both his legs. He was hospitalized from 9.1.2002 to 28.1.2002, i.e for a period of 19 days. The Tribunal fixed his loss of earnings for a period of six months. 16. In view of the refixation of the notional income of the appellant, I hold that he is entitled for loss of earnings at Rs.21,000/- instead of Rs.12,000/- fixed by the Tribunal. **MACA NO. 607 OF 2008 8** ## **Bystander expenses** 17. Going by Ext.A7 disability certificate proved through PW1, it can be gathered that the appellant was hospitalised for a period of 19 days. The Tribunal has awarded bystander expenses at Rs.1,600/-, I am of the opinion that bystander expense has to be fixed at Rs.200/- per day for a period of 19 days. Therefore, I enhance the compensation under the head bystander expenses at Rs.3,800/-, instead of 1,600/- fixed by the Tribunal. ## **Future treatment** 18. The appellant had claimed Rs.15,000/- towards future treatment. As per Ext.A7 disability certificate proved through PW1, it was certified that the appellant needed another surgery for the purpose of removal of implant. He had claimed an amount of Rs.15,000/-, but **MACA NO. 607 OF 2008 9** the Tribunal awarded only an amount of Rs.8,000/-, which according to me is on the lower side. Hence, I enhance the compensation towards future treatment to Rs.15,000/- as claimed in the claim petition. ## **Pain and sufferings** 19. The appellant had undisputedly suffered fractures on both his legs. He has also 10% permanent disability as evidenced by Ext.A7 disability certificate. He was hospitalised for a period of 19 days and had to undergo two surgeries due to the accident. Although he had claimed an amount of Rs.20,000/- towards pain and sufferings, the Tribunal has awarded only an amount of Rs.12,000/-. Taking note of the injuries sustained by the appellant and that he was hospitalized for a period of 19 days and that he was incapacitated for a period of six months, I hold that the appellant is entitled for **MACA NO. 607 OF 2008 10** compensation under the head pain and sufferings as claimed for in the claim petition at Rs.20,000/-. Hence, I enhance the compensation under the said head. ## **Loss due to disability** 20. PW1, who proved Ext.A7 disability certificate assessed the disability of the appellant at 12% as per Mc brides scale. However, the Tribunal fixed the disability at 10%. 21. The Hon’ble Supreme Court in _**Union of India and another v. Talwinder Singh (2012 5 SCC 480)**_ , has categorically held that courts should not normally interfere with the opinion of experts and that it would be safe for the courts to leave such decision to the experts who are more familiar with the problems than the courts to express its general opinion. 22. In the case on hand, even though PW1 as per **MACA NO. 607 OF 2008 11** Ext. A7 had certified the disability of the appellant at 12%, the Tribunal, has fixed the disability at 10%, which according to me is erroneous. Therefore, I re-fix the permanent disability of the appellant at 12%. ## **Multiplier** 23. The Tribunal has adopted the multiplier at 15. In light of the ratio in _**Pranay Sethi**_ (supra), as the appellant was completed 45 years, the relevant multiplier is 14. 24. In view of the refixation of the notional income of the appellant at Rs.3,500/-, his disability at 12% and the multiplier at 14, the compensation under the head loss due to disability is fixed at Rs.70,056/- instead of 36,000/- awarded by the Tribunal. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded **MACA NO. 607 OF 2008 12** reasonable and just compensation. 26. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforecited decisions, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount<br>Awarded by<br>the Tribunal<br>(in Rs.)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---| |Loss of earnings|12,000/-|21,000/-| |Transportation|500/-|500/-| |Extra nourishment|1,000/-|1,000/-| |Clothing|500/-|500/-| |Treatment<br>expenses|35,600/-|35,600/-| **MACA NO. 607 OF 2008 13** |Bystander<br>expenses|1600/-|3,800/-| |---|---|---| |Pain and sufferings|12,000/-|20,000/-| |Loss of amenities|8,000/-|8,000/-| |Future treatment|8,000/-|15,000/-| |Loss<br>due<br>to<br>disability|36,000/-|70,056/-| |Total|1,15,200/-|1,75,456/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.60,256/- with interest at the rate of Rs.7% per annum from 20.6.2002 till the date of deposit, after excluding the period of 118 days, i.e the delay in preferring the appeal as ordered by this court on 19.3.2021 in C.M.Appln.No.591 of 2008, with proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation **MACA NO. 607 OF 2008 14** along with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm