V.V. Paul v. Abad Fisheries and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943 MACA NO. 865 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 909/2003 OF SPECIAL C SPE/CBI-I&3 ADDITIONAL DISTRICT COURT .ADD MOTOR ACCIDENT CLAIMS TRIBUNAL ,EKM, ERNAKULAM** ## **APPELLANT/PETITIONER:** **V.V.PAUL, AGED 61 YEARS, SON OF V.P.VARGHESE, VAKAYIL HOUSE,, MARKET ROAD, VADUTHALA P.O., CHERANALLOOR VILLAGE,, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **BY ADV SRI.ANIL S.RAJ** ## **RESPONDENTS:** **1 M/S.ABAD FISHERIES REPRESENTED BY PARTNER, ABAD BUILDING,, P.B.NO.313, COCHIN-682 002. 2 K.S.NISAR S/O.SULAIMAN H.NO.2/790, PALLIPPARAMBU BHAGOM,, KUNNUMPURAM, FORT KOCHI VILLAGE,, COCHIN-682 001. 3 THE NATIONAL INSURANCE COMPANY LTD. TRIPUNITHURA. 4 THE ORIENTAL INSURANCE COMPANY LIMITED, COCHIN-11. BY ADVS. SRI.RAHUL SASI SRI.P.G.GANAPPAN SRI.GEORGE CHERIAN (SR.) SMT.NEETHU PREM SRI.ALEXY AUGUSTINE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.865 of 2010 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 865 of 2010 - - - - - - - - - - -- - - - - - - - - - - - - Dated this the 16[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No. 909 of 2003 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are: on 26.01.2003 while the appellant was riding his motorcycle bearing registration No. KL 7/AH 2157 along the MG road, Ernakulam, a Car bearing registration No. KL7/Z 2480 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner attempted to overtake the motorcycle of the MACA.No.865 of 2010 _3_ appellant. The Car severed towards the right and hit the motorcycle. The appellant and the pillion rider sustained severe injuries including an head injury, fractures and injury to his liver etc. The appellant was treated at the Medical Trust Hospital, Ernakulam as an in-patient from the date of accident till 20.02.2003. He developed further complications and was re-admitted in the same on again hospital 25.02.2003 and discharged on 15.03.2003. Thereafter, he was admitted in the Lourdes Hospital from 25.04.2003 and discharged on 16.05.2003, totaling to a period of 64 days in two hospitals in 3 spells. The appellant was a Sports Development Officer in the District Sports Council, Ernakulam and was earning a monthly salary of Rs. 15000/-. His wife was a teacher The accident occurred on by profession. solely account of the negligence of 2[nd] respondent, who MACA.No.865 of 2010 _4_ drove the offending vehicle in a negligent manner. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellant sought for a total compensation of Rs.18,90,000/- from the respondents, which he limited to Rs.15,00,000/-. 3. The pillion rider on the motorcycle also filed OP(MV)No.726 of 2003 before the same Tribunal, seeking compensation on account of the injuries sustained by him. 4. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 5. The 3[rd] respondent – insurer of the offending vehicle entered appearance but did not file any written statement. 6. The additional 4[th] respondent - insurer of the motorcycle - filed a written statement contending that MACA.No.865 of 2010 _5_ it had no liability to pay the compensation as the police charge-sheeted the 2[nd] respondent for causing the accident. 7. The Tribunal consolidated and jointly tried both the original petitions. 8. The appellant was examined as PW1 and Exts.A1 to A41 were marked in evidence in both the claim petitions. 9. The Tribunal, by the common award, allowed the claim petition filed by the appellant, in part, by permitting him to recover an amount of Rs.4,26,956/with interest at the rate of 7% per annum from the date of petition till the date of deposit along with the proportionate costs. The 3[rd] respondent was directed to pay the compensation amount. 10. Dissatisfied with the quantum of compensation, the petitioner is in appeal. MACA.No.865 of 2010 _6_ 11. Heard the learned Counsel appearing for the appellant/petitioner and the learned Counsel appearing for the respondents 1,3 and 4. 12. The sole question that emerges for consideration in this appeal whether the quantum of compensation awarded by the Tribunal is reasonable and just? 13. 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, 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 MACA.No.865 of 2010 _7_ equitability. 14. Ext.A4 charge-sheet filed by the City Traffic Police, Kochi City in Crime No. 355 of 2003 clearly substantiates that the accident occurred solely on account of the negligence of the 2[nd] respondent, who drove the offending vehicle in a rash and negligent manner. Undisputedly, the 1[st] respondent was the owner of the and the 3[rd] respondent was the insurer of the offending vehicle. Therefore, it is the 3[rd] respondent who is liable to indemnify the liability of the 1[st] respondent to pay compensation on account of the accident caused by the offending vehicle. ## **Notional income** 15. The appellant was aged 54 years as on the date of accident. He claimed that he was employed as a Sports Development Officer at the District Sports Council, Ernakulam. He produced and marked MACA.No.865 of 2010 **==> picture [7 x 9] intentionally omitted <==** Ext.A39 certificate to prove that he was having a monthly salary of Rs.15,331/-. 16. The Tribunal after taking note of the fact that the appellant would have superannuated from service at the age of 55, fixed his notional income at Rs.5,000/-. The Tribunal also adopted the multiplier at ‘5’ and the percentage of disability at 20% in order to arrive at the compensation for ‘loss due to permanent disability’. 17. It is an admitted fact that the appellant had retired immediately after the accident. He could not earn the same income while he was in service. 18. In **Pushkar Mehra v. Brij Mohan Kushwaha and others** [2015(12) SCC 688] the Hon'ble Supreme Court has fixed the notional income of a skilled labourer/technical supervisor in the year 2010 at Rs.7,020/-. MACA.No.865 of 2010 _9_ 19. Following the ratio in the afore-cited decision and keeping in mind the salary of the appellant as reflected in Ext.A39 while he was in service, I hold that the appellant's notional income can safely be fixed at Rs.7,000/- per month. ## **Multiplier** 20. As the appellant had not suffered any loss while he was in service, the relevant multiplier to be adopted is the period after his retirement, i.e., after he completed the age of 55. 21. In the light of the law laid down in **Sarala** **Varma and others v. Delhi Transport Corporation** **and others** [ **(** 2010) 2 KLT 802] the relevant multiplier is ‘9’. ## **Disability** 22. The appellant had got himself examined by the Medical Board attached to the General Hospital, MACA.No.865 of 2010 _10_ Ernakulam. The Medical Board found that the appellant has a Grade II dyspnoea and restrictive lung disorder, which will disable him from pursuing his profession to the full satisfaction. However, it is certified that the degree of disability could not be certified as there is no definite internationally approved percentage calculation or scoring. The Tribunal marked the disability certificate as Ext.A40 and fixed the permanent disability at 20%. 23. In view of the fact that the appellant had retired from service and was only a Coach by profession and also that there is no international standards to fix the disability in view of the injury that was sustained by the appellant, I find that the method adopted by the Tribunal in fixing the disability of the appellant at 20% is justifiable and correct. Hence, I accept the findings of the Tribunal in fixing the MACA.No.865 of 2010 _11_ disability of the appellant at 20%. ## **Loss due to disability** 24. In view of the afore-cited factors namely, the fixation of the notional income of the appellant at Rs.7,000/-, the multiplier at ‘9’, the disability at 20%, I re-fix the ‘loss due to disability’ at Rs.1,51,900/-, instead of Rs.60,000/- awarded by the Tribunal, i.e., an enhancement of Rs.91,200/-. ## **Extra nourishment** 25. the had claimed an Although, appellant amount of Rs.10,000/- towards extra nourishment, the Tribunal did not specifically award any amount under the said head. Taking note of the fact that the appellant was hospitalized for a period of 64 days in three spells in two hospitals, I hold that a reasonable amount of Rs.5,000/- has to be awarded under the said above head ‘extra nourishment’. MACA.No.865 of 2010 _12_ ## **Other heads of claim** 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings and materials on record, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above i.e, an enhancement of compensation by a further amount of Rs.96,200/namely, Rs.91,200/- under the head ‘loss due to disability’ and Rs.5,000/- towards ‘extra nourishment’. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.96,200/- with interest on the enhanced compensation at 7.5% from the date of petition till the date of deposit, after deducting 200 days, i.e, the MACA.No.865 of 2010 _13_ period of delay in preferring the appeal, as ordered by this Court on 24.06.2021 in C.M.Appl.No.1 of 2020, and a cost of Rs.2,500/-. The 3[rd] respondent shall deposit the enhanced compensation amount before Tribunal with interest and costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 22.07.2021**