Kerala High Court
Chami vs K.Gopan Unni on 8 April, 2021
1
MACA.No.952 OF 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
MACA.No.952 OF 2008
AGAINST THE AWARD IN OPMV 3414/2001 DATED 19-07-2007 OF THE MOTOR ACCIDENTS
CLAIMS TRIBUNAL ,TRISSUR
APPELLANT/S:
1 CHAMI
S/O. SANKARAN, VAZHAKKACHIRA HOUSE, P.O.KAVASSERY, VIA.
ALATHUR, PALAKKAD DISTRICT. ( DIED)
ADDL DEVU, AGED 58 YEARS, W/O.LATE CHAMI,VAZHAKKACHIRA HOUSE,
APPELLANT 2 CHUNDAKKAD, P.O.KAVASSERY, VIA. ALATHUR, PALAKKAD DISTRICT.
ADDL PRIYA, AGED 41 YEARS, D/O.LATE CHAMI,VAZHAKKACHIRA
APPELLANT 3 HOUSE,CHUNDAKKAD, P.O.KAVASSERY, VIA. ALATHUR, PALAKKAD
DISTRICT
ADDL PREETHA,AGED 38 YEARS,D/O.LATE CHAMI,VAZHAKKACHIRA
APPELLANT 4 HOUSE,CHUNDAKKAD, P.O.KAVASSERY, VIA. ALATHUR, PALAKKAD
DISTRICT
ADDL PRAMOD.C, AGED 26 YEARS, S/O.LATE CHAMI,VAZHAKKACHIRA
APPELLANT 5 HOUSE,CHUNDAKKAD, P.O.KAVASSERY, VIA. ALATHUR, PALAKKAD
DISTRICT (LEGAL REPRESENTATIVES OF DECEASED FIRST APPELLANT
ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 IN THE APPEAL AS
PER THE ORDER DATED 26.3.2021 IN IA.1/2021 IN MACA 952/2008)
BY ADVS.
SRI.P.V.CHANDRA MOHAN
SRI.P.V.CHANDRA MOHAN
RESPONDENT/S:
1 K.GOPAN UNNI,THE MANAGING PARTNER, M/S.VISHNU PACKERS,,
G.K.SQUARE, KURUCHI, COIMBATORE (DELETED).
2 VELUSWAMY,S/O. RANGASWAMY COUNTER,VISHNU PACKERS, VEERAPPA
COUNTER ROAD, P.O.ELOOR,, KINATTUKADAVU, COIMBATORE.(DELETED)
(RESPONDENT NOs 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT
THE RISK OF THE APPELLANT AS PER ORDER DATED 17/12/2013 IN IA
NO. 3410/13 IN MACA 952/08)
3 THE NEW INDIA ASSURANCE CO.LTD.
REPRESENTED BY DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE
CO.LTD, PALACE ROAD, THRISSUR.
R3 BY ADV. SRI.LAL GEORGE
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
MACA.No.952 OF 2008
C.S.DIAS, J.
======================
MACA No.952 of 2008
======================
Dated this the 8th day of April, 2021.
JUDGMENT
The petitioner in OP (MV) No.3414 of 2001 on the
file of the Motor Accidents Claims Tribunal, Thrissur had
preferred the appeal. Pending the appeal, the original
appellant died and his legal representatives were
impleaded as additional appellants 2 to 5. The 3rd
respondent - Insurance Company - in the claim petition
is the sole respondent in the appeal. The parties are, for
the sake of convenience, referred to as per their litigate
status in the claim petition.
2. The petitioner 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 a motor accident that took place on
14.06.2001.
3. The case of the petitioner in brief, is that, on
MACA.No.952 OF 2008
14.06.2001 while he was travelling in a tempo trax
vehicle bearing registration No.KL-07/H-7164 on
Thrissur - Palakkad public road, when the vehicle
reached Erimayur, another tempo vehicle bearing
registration No.TN-37/S- 5907(offending vehicle) driven
by the second respondent, in a rash and negligent
manner, hit the vehicle in which the petitioner was
travelling. The petitioner sustained serious injuries and
was taken to the Government Hospital, Alathur and,
thereafter, to the Medical College Hospital, Thrissur. He
was treated as an inpatient in three spells for the
periods from 14.06.2001 to 25.07.2001, 27.09.2001 to
18.10.2001 and from 21.03.2003 to 09.04.2003. The
accident occurred due to the rash and negligent driving
of the 2nd respondent. The 1st respondent was the
owner and the 3rd respondent was the insurer of the
offending vehicle. Therefore, respondents 1 to 3 were
jointly and severally liable to pay the compensation,
which the petitioner quantified at Rs.1,81,000/-
4. The respondents 1, 2 and 5 were set ex parte.
MACA.No.952 OF 2008
5. The third respondent filed a written-statement
admitting that the offending vehicle was insured with it.
However, the 3rd respondent denied that it was liable to
pay compensation, as the accident was not caused due
to negligence on the part of the 2nd respondent.
6. The 6th respondent filed a written statement
admitting that the vehicle in which the petitioner was
travelling was insured with it. However, the said
respondent was not liable to pay compensation, as the
accident was caused not due to the negligent driving by
the 5th respondent.
7. The petitioner produced and marked Exhibits A-1
to A-9 in evidence. He also examined PW1 - the Doctor
who issued Exhibit A-7 disability certificate.
8. The Tribunal, after considering the pleadings and
materials on record, by the impugned award allowed the
claim petition, in part, by awarding an amount of
Rs.84,800/- with interest at the rate of 7% per annum
from the date of petition till the date of actual payment
and proportionate costs to be paid by the 3rd
MACA.No.952 OF 2008
respondent.
9. The comparative table of compensation that was
claimed by the petitioner and that was awarded by the
Tribunal is as follows:-
SI. Head under which Amount claimed Amount allowed
No compensation is claimed (in rupees) (in rupees)
1 Loss of earning 21,000/- 10,000/-
2 Partial loss of earning 12,000/- Nil
3 Transport to hospital 3,500/- 1,500/-
4 Extra nourishment 2,500/- 1,000/-
5 Damage to clothing and 1,000/- 500/-
articles
6 Medical expenses 10,000/- 4,000/-
7 Personal attendants (bystander 3,500/- 3,000/-
expenses)
8 Future medical expenses 7,500/- Nil
9 Compensation for pain and 20,000/- 10,000/-
sufferings
10 Compensation for continuing or 46,800/-
permanent disability
11 Compensation for the loss of
earning power
12 Compensation for 1,00,000/- Nil
disfigurement
13 Compensation for loss of 8,000/-
amenities of life
14 Compensation for shortened Nil
expectancy of life
Total amount 1,81,000/- 84,800/-
10. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
11. In fact, without noticing that the original
appellant had died during the pendency of the appeal,
MACA.No.952 OF 2008
this Court by judgment dated 2.12.2020 disposed the
appeal by enhancing the compensation. However, on an
application filed by the appellants 2 to 5, this Court
recalled the judgment by order dated 26.3.2021 and
impleaded the additional appellants 2 to 5 as the legal
representatives of the deceased first appellant.
Thereafter, the appeal was re-heard.
12. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the
respondent.
13. The question that emerges for consideration in
this appeal is whether the quantum of compensation
awarded by the Tribunal is just and reasonable?
14. 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
MACA.No.952 OF 2008
standards. The conception of 'just compensation' has to
be viewed through the prism of fairness, reasonableness
and non-violation of the principle of equitability.
Assessment of Disability
15. Admittedly, the petitioner met with the accident
on 14.06.2001. He was aged 48 years at the time of
accident. He was a daily labourer. The petitioner had
claimed that he was earning an amount of Rs.3,500/- per
month. Exhibit A-6 discharge summaries substantiate
that the petitioner underwent treatment in three spells
from 14.06.2001 to 25.07.2001, 27.09.2001 to
18.10.2001 and 21.03.2003 to 09.04.2003 i.e. for a total
period of 84 days. Exhibit A-7 disability certificate
evidences that the petitioner had a complete ulnar nerve
injury with claw deformity of ring and little fingers. The
PW1 has certified that the petitioner has a permanent
physical disability of 25% as per the Brides schedule.
16. The Tribunal after appreciating the materials on
record, particularly Exhibit A-7 disability certificate, and
after directly seeing the petitioner, reassessed the
MACA.No.952 OF 2008
disability of the petitioner at 15%.
17. The learned counsel for the appellants argued
that the assessment made by the Tribunal is erroneous
and untenable. He contended that the petitioner was a
daily labourer and had sustained a serious injury on his
right hand, therefore, the petitioner was disabled from
carrying on with his avocation. He relied on the decision
of the Hon'ble Supreme Court in Raj Kumar v.
AjayaKumar [2011(1) KLT 620 SC] and argued that the
Tribunal ought to have accepted the finding of PW1 that
the claimant had a disability of 25%.
18. On the contrary, the learned counsel appearing
for the respondent contended that even going by the
ratio in Raj Kumar's case, PW1 ought to have assessed
the disablement percentage of the specific limb and then
made an assessment as to the entire body, which has not
been done in Exhibit A-7. Undisputedly, PW-1 in his cross
examination has admitted that he has not made a
separate assessment of the disability in Exhibit A-7.
Therefore, the assessment made by the Tribunal is
MACA.No.952 OF 2008
correct. Moreover, an injury on the ulnar nerve would
not cause permanent disability to a person. Hence, the
assessment made by the Tribunal may not be disturbed.
Disability Certificate
19. The crucial aspect in this appeal is whether the
disability assessed by the Tribunal is correct or not?
20. It is an admitted fact that PW1 was not the
Doctor who treated the claimant. The relevant period of
treatment was from 14.06.2001 to 09.04.2003, in three
spells. Exhibit A-7 has been issued on 27.12.2004 based
on discharge cards and Xrays, as deposed by PW1. PW1
has also not assessed the disability of the claimant with
specific reference to the right hand, as laid down in the
Raj Kumar (Supra). Instead, PW1 has assessed the
permanent physical disability of the petitioner at 25%.
As PW1 was not the Doctor who treated the petitioner
and has assessed the disability based on the discharge
summaries and X-rays without following the ratio in Raj
Kumar (Supra), I am of the firm opinion that the
disability of the petitioner as fixed by the Tribunal at
MACA.No.952 OF 2008
15%, that too after seeing the petitioner, is reasonable
and just. I do not find any ground to disturb the said
finding.
21. Now coming to the question of compensation
awarded by the Tribunal under the other heads of claim
in the claim petition, which are also challenged in the
appeal.
Monthly Income
22. The petitioner had averred in the claim petition
that he was a daily labourer and getting a monthly
income of Rs.3,500/-. However, the Tribunal has taken
his notional income at Rs.2,000/- per month.
23. The law in respect of notional income is well
settled by the decisions of the Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram
Alliance [(2011) 13 SCC 236] and Syed Sadiq and
others v. Divisional Manager, United India
Insurance Co.Ltd. [(2014) 2 SCC 735]. The Hon'ble
Supreme Court in Ramachandrappa (supra) has fixed
the notional income of a coolie worker in the year 2004
MACA.No.952 OF 2008
@ Rs.4,500/- per month. In Syed Sadiq (supra), the
Hon'ble Supreme Court fixed the notional income of a
vegetable vendor in the year 2006 @ Rs.6,500/- per
month.
24. This Court in Soman vs. Jinesh James and
others [ILR 2020 (3) Kerala 1003] has fixed the notional
income of a coolie worker in the year 2010 at Rs.7,500/-
per month.
25. Going by the parameters laid down in the
aforecited decisions and considering the fact that the
petitioner was a coolie worker and that the accident
occurred in the year 2007, I am of the considered
opinion that the amount of Rs.3,500/-, as claimed by the
petitioner in the claim petition, can be fixed as his
notional monthly income. Therefore, I re-fix the notional
monthly income of the petitioner at Rs.3,500/- instead of
Rs.2,000/-.
Future Prospects
26. It is seen that the Tribunal has failed to award
compensation under the head future prospects. The law
MACA.No.952 OF 2008
has been categorically laid down by the Hon'ble
Supreme Court in Syed Sadiq (supra), Raj Kumar vs
Ajay Kumar [2011 (1) KLT 620(SC)] and Pappu Deo
Yadav vs. Naresh Kumar and others (Civil Appeal
No.2567/2020), that the injured has to be placed in the
same position as prior to the time of accident. Going by
the law laid down in the aforesaid decisions, I am of the
definite opinion that the petitioner is entitled for future
prospects. Considering that the petitioner was aged 48
years at the time of the accident and the multiplier being
'13', I fix future prospects at 25% on the loss due to
disability.
Bystander Expenses
27. It is on record that the petitioner was in hospital
for a period of 84 days in the three spells as mentioned
above. Therefore, I hold that the petitioner needed the
assistance of a bystander for the period of 84 days.
Accordingly, I fix the bystander expenses at Rs.100/- per
day. In the said circumstances, the bystander expenses
is enhanced from Rs.3000/- to Rs.8,400/-.
MACA.No.952 OF 2008
Transportation Expenses
28. The petitioner had gone to the hospital on
several occasions during the period from 14.06.2001 to
09.04.2003. He had claimed transportation expenses at
Rs.3,000/-, for which the Tribunal awarded Rs.1,000/-
only. I find that Rs.3,000/- claimed by the petitioner is
reasonable and just. Hence, I re-fix the compensation
under the said head at Rs.3,000/-
Loss of Earnings
29. Exhibit A-6 discharge summaries prove that the
petitioner had undergone treatment for nearly 22
months from 14.06.2001to 09.04.2003 and that he was
an inpatient for nearly 84 days. Being a coolie worker,
certainly he had lost his earning power for the period of
two years. The Tribunal has taken the loss of earning
power only for a period of five months, which I hold is on
the lower side. As the petitioner was under treatment for
twenty two months, I enhance the loss of earning power
from five months to twenty two months. In the said
circumstances, considering the income of the petitioner,
MACA.No.952 OF 2008
I re-fix the compensation under the head 'loss of
earnings' at Rs.77,000/-.
Other heads of claim
30. With respect to the amounts claimed under the
other heads, namely, (i) clothing, (ii) extra nourishment,
(iii) medical expenses and pain and sufferings, I find that
the Tribunal has awarded reasonable and just
compensation. Therefore, I do not find any reason to
enhance the compensation under the above heads of
claim.
31. On an overall re-appreciation of the pleadings,
materials on record and the law laid down by the
Hon'ble Supreme Court in the aforecited decisions, I am
of the firm opinion that the appellants are entitled for
enhancement of the amounts as modified and re-
calculated above, and given in the table below for easy
reference.
MACA.No.952 OF 2008
SI. Head under which Amount Amount Amounts
No compensation is claimed claimed (in allowed (in modified
rupees) rupees) and
recalculated
by this
Court
1 Loss of earning 21,000/- 10,000/ 77,000/
- -
2 Partial loss of earning 12,000/- Nil Nil
3 Transport to hospital 3,500/- 1,500/- 3,000/-
4 Extra nourishment 2,500/- 1,000/- 1,000/-
5 Damage to clothing and 1,000/- 500/- 500/-
articles
6 Medical expenses 10,000/- 4,000/- 4,000/-
7 Personal attendants 3,500/- 3,000/- 8,400/-
(bystander expenses)
8 Future medical expenses 7,500/- Nil Nil
9 Compensation for pain and 20,000/- 10,000/- 10,000/-
sufferings
10 Compensation for 46,800/- 1,02,375/-
continuing or permanent
disability
11 Compensation for the loss Nil
of earning power
1,00,000/-
12 Compensation for Nil Nil
disfigurement
13 Compensation for loss of 8,000/- 8,000/-
amenities of life
14 Compensation for Nil Nil
shortened expectancy of
life
Total amount 1,81,000/- 84,800/- 2,14,275/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of Rs.1,29,475/-
(Rupees One lakh Twenty Nine Thousand Four Hundred
Seventy Five only) with interest at the rate of 7% per
annum from the date of petition till the date of
MACA.No.952 OF 2008
realisation with proportionate costs. The respondent/the
3rd respondent shall deposit the enhanced
compensation awarded in this appeal with interest and
proportionate costs before the Tribunal within a period
of two months from the date of receipt of a certified
copy of the judgment. The appellants 2 to 5 would be at
liberty to move the Tribunal for withdrawal of the
deposited amount, which shall be disbursed to them in
equal shares.
sd/-
C.S.DIAS
Sks/8.4.2021 JUDGE
