Kerala High Court

Subairkutty P.C vs Mohammed P on 10 February, 2021

                                   1
MACA.No.813 OF 2015

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

   WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                        MACA.No.813 OF 2015(D)

   AGAINST THE AWARD IN OPMV 1223/2007 DATED 17-06-2014 OF THE
         MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA


APPELLANT/S:

                SUBAIRKUTTY P.C
                KALLUVILA PUTHENVEEDU HOUSE, THOTTAMAN MURI, RANNY
                VILLAGE, RANNY TALUK, THOTTAMON P.O.

                BY ADVS.
                SRI.T.K.KOSHY
                SRI.ABE RAJAN
                SRI.SABU I.KOSHY

RESPONDENT/S:

       1        MOHAMMED P
                S/O MOIDEEN, TAJ NIVAS, 28/06, PONNIYERI HOUSE,
                ALANU DEASON, VAILATHOOR-KARINGAPARA ROAD,
                NURSERYPADY, PAINUMUNDAM P.O., MALAPPURAM DISTRICT,
                PIN-676505.

       2        V.SAIDALAVI
                VARIKKOOTTIL HOUSE, ADRASERRY P.O.,KAVUPPURA (VIA),
                PAINUMUNDAM, MALAPPURAM DISTRICT, PIN:676 505.

       3        BRANCH MANAGER
                THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE,
                P.B.NO.8, JOTHI SUPER BAZAR, THODUPUZHA, PIN:685
                585.

                R1 BY ADV. SRI.RAJESH THOMAS
                R3 BY ADV. SRI.PMM.NAJEEB KHAN

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                        2
MACA.No.813 OF 2015




                        C.S.DIAS, J.
             ======================
                  MACA No.813 of 2015
             ======================
         Dated this the 10th day of February, 2021.

                                JUDGMENT

The appellant was the petitioner in OP (MV)

No.1223 of 2007 on the file of the Motor

Accidents Claims Tribunal, Pathanamthitta. The

respondents in the claim petition are the

respondents in this appeal. The parties are, for

the sake of convenience, referred to as per their

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 he sustained in a motor accident that

occurred on 30.4.2006.

3. The case of the petitioner in the claim

petition, in short, was that while he was walking

on the Kakkadu-Pookilasu road, a pickup Van

MACA.No.813 OF 2015

bearing registration No.KL-10-W-1155 driven by

the first respondent, in a rash and negligent

manner, hit the petitioner. The offending vehicle

belongs to the second respondent and was

insured with the third respondent.

4. According to the petitioner, he was aged

52 years at the time of accident. He was doing

poultry business and was earning a monthly

income of Rs.8,000/-. He was taken to Almas

Hospital, Kakkadu and, thereafter, he was

referred for better treatment to the Medical

College Hospital, Kozhikode, where he was an

inpatient till 23.5.2006. Thereafter, the petitioner

was referred to the Medical College Hospital,

Thiruvananthapuram, where he was treated as an

inpatient till 4.6.2006. The petitioner was treated

as an inpatient for a period of 36 days. The

petitioner suffered serious injuries in the accident

including a multiple fracture on the left humerus,

multiple fracture to his ribs, spleenic rupture and

MACA.No.813 OF 2015

serious head injuries. The petitioner claimed a

total compensation of Rs.6,20,250/-, which was

limited to Rs.2,40,250/-.

5. The respondents 1 and 2 were set ex

parte. The third respondent - the Insurance

Company - filed a written-statement, inter alia,

admitting the insurance policy of the offending

vehicle. However, it was contended that there was

violation of the policy. Hence, the petitioner had

to recover compensation, if any awarded, from the

respondents 1 and 2. The amount claimed by the

petitioner was exorbitant and excessive. Hence,

the third respondent prayed that the claim

petition be dismissed.

6. Exts A1 to A8 were produced and

marked in evidence on the side of the petitioner.

The respondents did not adduce any oral or

documentary evidence.

7. The Tribunal, after considering the

pleadings and materials on record, by the

MACA.No.813 OF 2015

impugned award allowed the claim petition, in

part, by permitting the petitioner to recover from

the respondents jointly and severally an amount of

Rs.1,44,454/- with interest at the rate of 9% per

annum from the date of petition till the date of

realization along with proportionate cost. The

third respondent was directed to satisfy the

award.

8. The comparative table of compensation

that was claimed by the petitioner and that was

awarded by the Tribunal is as follows:-

   SI.      Head of claim            Amount      Amount
   No                                claimed     awarded
                                   (in rupees)    (in rupees)
   1      Loss of earnings          128000/-     10500/-
   2      Transportation     to        9250/-    2000/-
          hospital
   3      Extra nourishment            9000/-    2000/-
   4      Damage to clothing           1000/-    500/-
   5      Medical expenses             90000/-   20154/-
   6      Bystander's                  23000/-   Nil
          expenses
   7      Pain and sufferings          60000/-   20000/-
   8      Compensation       for                 69300/-

MACA.No.813 OF 2015


          loss   of     earning      260000/-
          capacity
   9      Loss of amenities              40000/-           20000/-
          and enjoyment of
          life
          Total                   6,20,250/-               1,44,454/-
                                  limited             to
                                  2,40,250/-


             9.       Aggrieved      by         the         quantum       of

          compensation      awarded        by    the        Tribunal,    the

          appellant is in the appeal.

10. Heard the learned counsel appearing for

the appellant and the learned counsel appearing

for the third respondent.

11. The sole question that emerges for

consideration in this appeal is whether the quantum

of compensation awarded by the Tribunal is just and

reasonable.

12. 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'

MACA.No.813 OF 2015

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 equitability.

13. The petitioner met with the accident on

30.4.2006. He was aged 52 years at the time of

accident. The petitioner claimed that he was doing

poultry business and was earning a monthly income

of Rs.8,000/-. The petitioner produced Ext A5 wound

certificate in order to substantiate the injuries

sustained by him. Similarly, Exts A1 FIR was

produced to prove that the first respondent had

caused the accident. The Police have, in Ext A4

charge-sheet in Crime No.154/2006 of the

Tirurangadi Police Station, found that the accident

was caused by the first respondent.

14. The petitioner was examined by a Medical

Board, which certified by Ext A7 disability certificate

MACA.No.813 OF 2015

that the petitioner has permanent partial disability of

24%. However, the Tribunal after seeing the

petitioner came to the conclusion that he has only

15% of disability. The Tribunal fixed the petitioner's

notional income at Rs.3,500/- instead of Rs.8,000/- as

claimed in the claim petition. The petitioner had

claimed an amount of Rs.23,000/- as bystander's

expenses, but no amount was awarded to the

petitioner under the said head of account, even

though he was hospitalised for a period of 36 days.

15. The bone of contention of the learned

counsel for the appellant before this Court is that the

notional income fixed by the Tribunal is very low; that

the Tribunal failed to award any amount as

compensation under the head bystander expenses;

that the assessment made by the Tribunal regarding

the permanent disability of the petitioner at 15% is

wrong in view of the findings by the competent

Medical Board in Ext A7 disability certificate.

Hence, she prayed that the amount of compensation

MACA.No.813 OF 2015

awarded by the Tribunal may be enhanced in the

appeal.

16. Per contra, the learned counsel appearing

for the third respondent argued that the Tribunal has

awarded just compensation to the petitioner. There is

no scope for any inference in the appeal.

17. The specific case of the petitioner in the

claim petition was that he was doing poultry business

and was earning a monthly income of Rs.8,000/-.

18. Going by the law laid down by 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] and a decision of this Court in

Soman vs. Jinesh James and others [ILR 2020 (3)

Kerala 1003] the notional income for persons who

are working in unorganized sectors has been fixed in

Ramachandrappa (supra) at Rs.4,500/- per month in

the year 2004, in Syed Sadiq (supra), at Rs.6,500/-

MACA.No.813 OF 2015

per month in the year 2006, and in Soman (supra), at

Rs.7,500/- per month in the year 2010.

19. Considering the parameters laid down in the

aforecited decisions and taking into consideration the

fact that the petitioner was doing poultry business

and that the accident occurred on 30.4.2006, I am of

the considered opinion that petitioner's notional

income can safely be refixed at Rs.6,000/-, instead of

Rs.3,500/- as fixed by the Tribunal.

Bystander's expenses

20. The petitioner had claimed an amount of

Rs.23,000/- towards bystander expenses. He had

specifically averred in column No.13 of the claim

petition that he underwent treatment as an

inpatient at the Almas Hospital, Kakkadu, the

Medical College Hospital, Kozhikode and the

Medical College Hospital, Thiruvananthapuram for

a period of 36 days. Unfortunately, the Tribunal has

not awarded any amount under the said head of

account. Considering the fact that the accident was

MACA.No.813 OF 2015

in the year 2006, I am of the opinion that the

petitioner is entitled for bystander expenses @ of

250/- per day. Hence the petitioner is entitled for

compensation of Rs.9,000/- under the said head of

account.

Loss of earnings

21. In view of the refixaton of the notional

income of the petitioner @ Rs.8,000/- per month,

the loss of earnings of the petitioner is refixed at

Rs.18,000/- instead of Rs.10,500/- awarded by the

Tribunal.

22. A three Judge Bench of the Hon'ble

Supreme Court in Pappu Deo Yadav vs. Naresh

Kumar and others (Civil Appeal No.2567/2020)

after considering the decisions in Syed Sadiq

(supra), Raj Kumar vs Ajay Kumar [2011 (1)

KLT 620(SC)] and in Pranay Sethi (supra) has

held that person suffering injuries has to be

awarded future prospects. Taking into

consideration the age of the petitioner and

MACA.No.813 OF 2015

multiplier of 11, I hold that the petitioner is entitled

for future prospects @ 10% of the total

compensation.

Other heads of claim

23. With respect to the amounts awarded under

the other heads of claim, namely, (i) transport to

hospital, (ii) extra nourishment, (iii) damage of

clothing, (iv) medical expenses, (v) pain and

sufferings, and (vi) loss of amenities, I find that the

Tribunal has awarded just and reasonable

compensation to the petitioner. Hence, I do not find

any ground to enhance the compensation awarded

under any of the heads mentioned above.

24. On an overall re-appreciation of the

pleadings, materials on record and the law laid

down by the Hon'ble Supreme Court in the afore-

cited decisions, I am of the firm opinion that the

petitioner is entitled for enhancement of the

amounts as modified and re-calculated above, and

given in the table below for easy reference.

MACA.No.813 OF 2015

SI. Head of claim Amount Amount Amounts No claimed awarded modified (in rupees) (in and rupees) recalculat ed by this Court 1 Loss of 128000/- 10500/- 18000/- earnings 2 Transportation 9250/- 2000/- 2000/- to hospital 3 Extra 9000/- 2000/- 2000/- nourishment 4 Damage to 1000/- 500/- 500/- clothing 5 Medical 90000/- 20154/- 20154/- expenses 6 Bystander's 23000/- Nil 9000/- expenses 7 Pain and 60000/- 20000/- 20000/- sufferings 8 Compensation 260000/- 69300/- 69300/- for loss of earning capacity 9 Loss of 40000/- 20000/- 20000/- amenities and enjoyment of life 10 Loss due to -- -- 1,30,608/- disability with future prospects Total 6,20,250/- 1,44,454/ 2,91,562/- limited to - 2,40,250/-

MACA.No.813 OF 2015

In the result, the appeal is allowed by enhancing

the compensation by a further amount of

Rs.1,47,108/- (Rupees One Lakh Forty Seven

Thousand One Hundred and Eight only) with interest

at the rate of 9% per annum on the enhanced

compensation from the date of petition till the date of

realisation with proportionate costs. The third

respondent shall deposit the additional compensation

awarded in the appeal with interest and proportionate

costs within a period of two months from the date of

receipt of a certified copy of the judgment, after