Kerala High Court
Shabu P vs United India Insurance Co.Ltd on 1 July, 2021
MACA NO. 885 OF 2010
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
MACA NO. 885 OF 2010
AGAINST THE ORDER/JUDGMENT IN OPMV 1168/2004 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , PALAKKAD, PALAKKAD
APPELLANT/S:
SHABU P.
AGED 35 YEARS, NADAKKAVU HOUSE,, JPALLANCHATHANOOR
P.O., PALAKKAD.
BY ADVS.
SRI.JACOB SEBASTIAN
SRI.S.SANTHOSH KUMAR BALARAMAPURAM
RESPONDENT/S:
UNITED INDIA INSURANCE CO.LTD.
DIVISIONAL OFFICE, SURYA COMPLEX,, 2ND FLOOR, BI-
WING, PALAKKAD.
BY ADV SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 885 OF 2010
2
JUDGMENT
The appellant was the petitioner in OP(MV)
No.1168/2004 on the file of the Motor Accidents Claims
Tribunal, Palakkad. The respondent in the appeal-
insurance company, was the 3rd respondent before the
Tribunal. The parties are, for the sake of convenience,
referred to as per their status in the claim petition.
2. The concise facts in the claim petition, relevant for
the determination in the appeal are that: on 18.06.2004,
while the appellant was driving a Tata Sumo vehicle from
Palakkad to Coimbatore, when he reached Pudusseri
Temple, a lorry bearing registration No.KRK/6516
(offending vehicle) driven by the 2 nd respondent, in a
rash and negligent manner, hit on the vehicle of the
appellant. The appellant sustained serious injuries
including fractures. Two other persons lost their life in
the accident. The appellant was treated at Government
MACA NO. 885 OF 2010
Hospital, Palakkad and then at the Medical College
Hospital, Thrissur. Thereafter, he was admitted at Palana
Hospital, Palakkad for a period of 21 days. He had to
undergo two surgeries. The appellant sufferred two
fractures on his right leg. The appellant was a Driver by
profession and earning a monthly income of Rs.4,500/-.
The offending vehicle was owned by the 1 st respondent
and insured with the 3rd respondent. The 4th respondent
was the insurer of the vehicle driven by the appellant.
The appellant contended that respondents 1 to 3 were
jointly and severely liable to pay him compensation,
which he quantified at Rs.5,00,000.
3. The respondents 1 and 2 did not contest the
proceedings. The 3rd respondent filed a written
statement, interalia, contenting that the Driver of the
offending vehicle did not hold a valid driving license, that
the accident occurred due to the composite negligence of
the appellant also and that the compensation claimed by
MACA NO. 885 OF 2010
the appellant was on the higher side. The 4 th respondent
filed a written statement contenting that there was no
negligence on the part of the appellant and therefore the
4th respondent was not liable to pay any amount as
compensation.
4. The appellant marked Exts.A1 to A11 and
respondents marked Ext.B1 to B4 in evidence.
5. Another injured had filed OP(MV) No.1167/2004 in
connection with the same accident before the same
Tribunal. The Tribunal consolidated and jointly trial both
the original petitions and by a common award allowed
the claim petition filed by the appellant in part by
permitting the appellant to relaise an amount of
Rs.83,080/- from the 3rd respondent along with interest at
the rate of 7.5% per annum from the date of petition i.e.
17.12.2004, till the date of realisation along with costs of
Rs.400/-.
6. Dissatisfied with the quantum of compensation
MACA NO. 885 OF 2010
awarded by the Tribunal, the petitioner is in appeal.
7. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the 3 rd
respondent insurance company.
8. The sole question that arises for consideration in
this appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just
9. 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 equitability.
10. Ext.A1 FIR, Ext.A2 scene mahazer and Ext.A4
MACA NO. 885 OF 2010
series AMVI reports prove that the accident occurred
solely on account of the negligence on the part of the 2 nd
respondent, who drove the offending vehicle in a rash and
negligent manner. Admittedly, the 1st respondent was the
owner of the offending vehicle and the 3 rd respondent
was its insurer. Therefore, it is the 3 rd respondent, who is
liable to indemnify the 2nd respondent for the liability
arrived on account of the accident.
11. The principal area of dispute is with regard to the
notional income of the appellant fixed by the Tribunal.
12. The appellant had claimed that he was a Driver
by profession and earning Rs.4,500/- per month.
However, the Tribunal fixed the notional income of the
appellant at Rs.3,000/- per month.
13. The Honourable Supreme Court in
Ramachandrappa vs. Manager, Royal Sundaram
Alliance Insruance Company Ltd. : (2011) 13 SCC 236
MACA NO. 885 OF 2010
has fixed the notional income of a coolie worker in the
year 2004 at Rs.4,500/- per month.
Notional Income
14. The accident occurred on 18.06.2004, when the
appellant was aged 30 years. Following the parameters
laid down in Ramachandrappa (supra), I fix the notional
income of the appellant at Rs.4,500/- per month.
Loss of Earnings
15. Undisputedly the appellant was hospitalised as an
inpatient in three different hospitals for a period of 22
days. He had admittedly suffered fractures as evidenced
by Ext.A7 wound certificate. Thus, it can be safely be
concluded that the appellant was indisposed from
carrying his avocation for a period of four months.
Accordingly, I refix the loss of earnings of the appellant at
Rs.18,000/- for four months i.e. Rs.4,500/- x 4 months.
Bystander expenses:
16. It is seen that the Tribunal has only awarded an
MACA NO. 885 OF 2010
amount of Rs.2,000/- towards bystander expense, which is
on the lower side. The appellant underwent
hospitalisation for a period of 22 days. Thus, I hold that
the appellant is entitled for bystander expenses at
Rs.200/- per day for 22 days that is Rs.4,400/-
Loss due to disability:
17. The Tribunal fixed the permanent disability of the
appellant at 3%. In view of the refixation of notional
income of the appellant at Rs.4,500/- and the relevant
multiplier being '17', I hold that the appellant is entitled
for compensation for loss due to disability at Rs.27,540/-
instead of Rs.18,360/- awarded by the Tribunal.
18. With respect to the other heads of compensation
namely clothing, transportation, extra nourishment,
medical treatment expense, pain and suffering and loss of
amenities, I find that the Tribunal has awarded
reasonable and just compensation.
19. On an overall re-appreciation of the pleadings and
MACA NO. 885 OF 2010
materials on record, and the law laid down in the above
referred decision, I am of the opinion that the appellant is
entitled for enhancement of compensation as recalculated
above and given in the table below for easy reference:
SI. Head of claim Amount Amounts
No awarded modified and
by the recalculated
Tribunal by this Court
(in rupees)
1 Loss of earning 3,000 18,000
2 Transportation Cost 2,000 2,000
4 Bystander expense 2,000 4,400
5 Extra nourishment 1,000 1,000
6 Medical expenses 35,220 35,220
7 Pain and suffering 18,000 18,000
8 Loss of amenities 3,000 3,000
9 Loss due to disability 18,360 27,540
Total 83,080 1,09,570
In the result, the appeal is allowed in part enhancing
compensation by an amount of Rs.26,490/- with interest
MACA NO. 885 OF 2010
at the rate of 7.5% per annum from the date of petition
till the date of deposit, after excluding the period of 68
days i.e. the period of delay in preferring the appeal as
ordered by this Court on 29.03.2021 in
C.M.Appln.No.1135/2010 and proportionate costs. The
respondent shall deposit the enhanced compensation in
the appeal before the Tribunal with interest and
proportionate 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
to the appellant in accordance with law.
Sd/-
C.S.DIAS
JUDGE
rkc
