Kerala High Court

Unnikrishnan Nair vs Vijayan on 7 July, 2021

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                    THE HONOURABLE MR.JUSTICE C.S.DIAS
         WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                           MACA NO. 1871 OF 2009
  AGAINST THE ORDER/JUDGMENT IN OP(MV) 521/2004 OF MOTOR ACCIDENTS
                        CLAIMS TRIBUNAL ALAPPUZHA,
APPELLANT/PETITIIONER

             UNNIKRISHNAN NAIR, S/O.GOPALAN NAIR,
             USHUS, ARATTUVAZHY, ALAPPUZHA.

             BY ADV SRI.B.PRAMOD



RESPONDENTS/RESPONDENTS:

     1       VIJAYAN, S/O.LAKHMANAN NADAR,
             BHAGAVATHVILA PUTHEN VEEDU, UCHAKADA
             P.O.,THIRUVANANTHAPURAM.

     2       SHEEJA S.,
             SURESH BHAVAN,KOICHAL,KOZHIROOR P.O., THIRUVANANTHAPURAM.

     3       THE NEW INDIA ASSURANCE CO.LTD.
             NEYYATTINKARA BRANCH, THIRUVANANTHAPURAM.


OTHER PRESENT:

             SC - LAL K JOSEPH




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 1871 OF 2009        2




                        JUDGMENT

The appellant was the petitioner in OP(MV) No.521

of 2004 on the file of the Additional Motor Accidents

Claims Tribunal, Alappuzha. The respondents in the

appeal by the respondents in the claim petition.

2. The concise facts in the in the claim petition,

relevant for the determination of the appeal, are: on

8.10.2003, while the appellant was riding his scooter

along the Alappuzha-Cherthala National Highway, when

he reached Valavanadu Hospital junction, a lorry bearing

Reg. No.KL-01/P 2100 (offending vehicle) driven by the

1st respondent hit on the rear portion of the appellant's

scooter. The appellant fell down and sustained serious

injuries. He was treated at the Medical Medical College

Hospital, Alappuzha, and thereafter at the Specialists

Hospital, Ernakulam as an inpatient from 8.10.2013 to

21.1.2004, i.e for a period of 105 days. His lower left

limb was amputated. He was subjected to multiple

debridement. The appellant was employed as the

General Manager in DC Mills at Alappuzha and earning a

monthly income of Rs.9,500/- The offending vehicle was

owned by the 2nd respondent and insured with the 3rd

respondent. The appellant claimed an amount of

Rs.9,90,919/- as compensation from the respondents,

which was limited to 9,50,000/-.

3. The respondents 1 and 2 did not contest the

proceedings.

4. The 3rd respondent filed a written statement,

contending that the offending vehicle had a valid

insurance policy. However, it was averred that the

accident occurred on account of the negligence on the

appellant. The injury sustained by the appellant were

only minor in nature and, therefore, the appellant was

not entitled for compensation as claimed in the claim

petition.

5. The appellant marked Exts.A1 to A15 in

evidence.

6. The Tribunal, after considering the pleadings

and materials on record, fixed the disability of the

appellant at 50% as per Schedule in the Workmen's

Compensation Act. The Tribunal permitted the appellant

to recover an amount of Rs.4,08,500/- from the

respondents with interest @ 6% per annum from the date

of petition till the date of realization.

7. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner is in appeal.

8. Heard, Sri.B.Pramod, the learned counsel

appearing for the appellant/petitioner and Sri.Lal.K

Joseph, the learned counsel appearing for the 3 rd

respondent/Insurance Company.

9. The question that arises for consideration in this

appeal is whether the quantum of compensation awarded

by the Tribunal is reasonable and just.

10. 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.

11. Ext.A5 charge sheet filed by the Police

substantiates that the accident occurred solely due to the

negligence on the part of the 1 st respondent.

Undisputedly, the 2nd respondent is the owner of the

offending vehicle and the 3rd respondent was the insurer.

Therefore, the 3rd respondent is liable to indemnify the

2nd respondent of the liability on account of the accident

caused by the offending vehicle.

12. The appellant had contended that he was 64

years of age and was working as the General Manager of

DC Mills Pvt. Ltd., and earning a monthly income of

Rs.9,500/- per month. The appellant produced and

marked Ext.A9 salary certificate issued by his employer.

Nevertheless, the Tribunal fixed the notional income of

the appellant at Rs.2,000/- per month. The Tribunal has

observed that the position of the appellant in his

company could not have helped him because the

compensation cannot be awarded for physical disability

and loss of earning power. It is further observed that

though IInd Schedule of the Motor Vehicle Act does not

strictly apply to a claim u/S.166 of the Act, the same can

be adopted as a guideline. Accordingly, as the appellant

was aged 60 years, he was not entitled for more

compensation than what is prescribed under the II nd

Schedule of the Act. Accordingly, the Tribunal fixed a

total compensation at Rs.1,00,000/-.

13. Undisputedly, the claim was filed u/s.166 of the

Act. The Tribunal ought not have followed the course

presently adopted in deciding the claim filed u/S. 166 of

the Act.

14. It is proved that the left limb of the appellant

was amputated below the knee and the Tribunal had

fixed functional disability at 50%. Therefore, the

Tribunal ought to have followed the multiplier method as

laid down in the decision in Rajkumar v. Ajaykumar

(2011 1 KLT 620 SC) and host of judicial

pronouncements on the point. Therefore, I hold that the

method of compensation adopted by the Tribunal is

erroneous and improper and is liable to be set aside.

Notional Income

15. The appellant had claimed that he was working

as a General Manager in a private limited company and

earning a monthly income of Rs.9,500/-. Even though,

Ext.A9 salary certificate was produced, he did not

examine the author of the document to prove the same.

Hence, only the notional income of the appellant can be

taken to decide the compensation.

16. In Ramachandrappa vs. Manager, Royal

Sundaram Alliance Insurance Company Ltd., (2011 (13)

SCC 236), the Hon'ble Supreme Court has fixed the

notional income of a Coolie Worker in the year 2004 at

Rs.4,500/- per month. Similarly, in Syed Sadiq and

Others v. Divisional Manager, United India Insurance

Company Ltd. (2014 (2) SCC 735), the Hon'ble Supreme

court has fixed the notional income of a Vegetable Vendor

in the year 2008 at Rs.6.500/- per month. In Pushkar

Mehra v. Brij Mohan Kushwaha and others (2015

(12) SCC 688) the Hon'ble Supreme Court notional

income of the skilled labourer/technical supervisor in the

year 2010 at Rs.7,020/- per month.

17. Following the above parameters laid down in

the aforecited decisions and taking into consideration the

fact that the appellant was employed as a General

Manger in a private limited company and that the

accident occurred in the year 2003, I am of the definite

opinion that the appellants notional income can safely be

fixed at Rs.7,000/- per month. Hence, I fix the appellant's

notional income at Rs.7,000/- per month.

Loss of earnings

18. It is on record as per Ext.A10 discharge

summary that the appellant was admitted on 8.10.2003

and discharged only on 21.1.2004. He had claimed that

he was incapacitated for the period from 8.10.2003 till

7.5.2004 i.e., the date of filing of the claim petition.

Nevertheless, the Tribunal awarded only an amount of

Rs.12,000/- towards loss of earnings.

19. In view of the refixation of the notional income

of the appellant at Rs.7,000/- and the period of incapacity

as six months, I refix the compensation for loss of

earnings at Rs.42,000/- instead of Rs.12,000/- awarded by

the Tribunal.

Bystander Expenses

20. Going by Ext.A10 discharge summary, it is seen

that the appellant was treated as an inpatient for a

period of 105 days, i.e from 8.10.2003 to 21.1.2004. The

Tribunal awarded only an amount of Rs.3,000/- as

bystander expenses, which according to me is too

meager. Therefore, I refix the compensation for

bystander expenses at Rs.200/- per day, for a period of

103 days. Accordingly, I refix the bystander expenses at

Rs.20,600/-.

Loss due to disability

21. In light of the fact that the appellant was aged

64 years at the time of accident, the relevant multiplier

being '7' the notional income being fixed at Rs.7,000/-

and the disability fixed at 50%, I refix the compensation

for loss due to disability at Rs.2,94,000/- instead of

Rs.1,00,000/- fixed by the Tribunal.

22. With respect to the other heads of claim, I find

that the Tribunal has awarded reasonable and just

compensation.

23. On an over all re-appreciation of the pleadings

and materials on record, the law laid down in the

aforesaid decisions, I am of the definite opinion that the

appellant is entitled for enhancement of compensation as

modified and recalculated above and given in the table

below for easy reference.

    Head          of Amount          Amounts modified
    claim            Awarded by the and     recalculated
                     Tribunal    (in by this Court
                     Rs.)
   Loss            of 12,000/-        42,000/-
   earnings
   Transportatio 3,000/-              3,000/-
   n expenses
   Damages         to 5,00/-          5,00/-
   clothing


   Bystander            3,000/-             20,600/-
   expenses
   Extra                3,000/-             3,000/-
   nourishment
   Medical              1,87,000/-          1,87,000/-
   expenses
   Pain       and 50,000/-                  50,000/-
   sufferings
   Loss            of 50,000/-              50,000/-
   amenities
   Loss due        to 1,00,000/-            2,94,000/-
   disability
   Total                4,08,500/-          6,50,100/-

In the result, the appeal is allowed in part, by

enhancing the compensation by a further amount of

Rs.2,41,600/- with interest at the rate of Rs.6% per

annum on the compensation from the date of petition till

the date of deposit, after excluding the period of 51 days

i.e., the period of delay in filing the appeal and as

ordered by this Court on 16.1.2020 in

C.M.Appln.No.2155 of 2009, and proportionate costs.

The 3rd respondent shall deposit the enhanced

compensation amount awarded in the appeal with

interest and proportionate costs before the Tribunal

within a period of two months from the date of receipt of