Kerala High Court

K.N.Narayanan @ Kuttappayi vs Babu @ Sreenivasan on 8 July, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
         THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
                         MACA NO. 1853 OF 2009
   AGAINST THE ORDER/JUDGMENT IN OPMV 155/2001 OF DISTRICT COURT &
     SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD
APPELLANT/S:

             K.N.NARAYANAN @ KUTTAPPAYI
             AGED 56 YEARS, S/O.NARAYANAN,, KANNENKERIYIL HOUSE,
             ARINJARAMALA P.O., MANANTHAVADY TALUK, WAYANAD DISTRICT.

             BY ADV SRI.N.J.ANTONY



RESPONDENT/S:

     1       BABU @ SREENIVASAN
             AGE NOT KNOWN
             S/O.THRIPTHI GOWDER, SANTHINILAYAM,, ERANELLOOR,
             PANAMARAM POST, MANANTHAVADY TALUK,, WAYANAD DISTRICT.,
             (DRIVER OF THE TRACTOR NO.KLW 2369.DL.NO. NOT KNOWN).

     2       SARAVAMANGALAM, AGE NOT KNWON
             W/O.BABU @ SREENIVASAN, SANTHINILAYAM,, ERANELLOR,
             PANAMARAM POST, MANANTHAVAY TALUK,, WAYANAD DIST., (OWNER
             OF THE TRACTOR NO.KLW 2369).

     3       NEW INDIA ASSURANCE CO.LTD. KALPETTA.
             (POLICY NO.NOT KNOWN.)

             BY ADVS.
             SMT.CELINE JOSEPH
             SRI.M.JACOB MURICKAN


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 1853 OF 2009
                                    2

                             C. S. DIAS, J.
                -----------------------------------------
                      M.A.C.A.No.1853 of 2009
                 ------------------------------------
                Dated this the 8th day of July, 2021

                              JUDGMENT

The appellant was the petitioner in OP (MV) No.155

of 2001 on the file of the Motor Accidents Claims

Tribunal, Kalpetta, Wayanad. The respondents in the

appeal were the respondents in the claim petition.

2. The concise case in the claim petition, relevant

for the determination of the appeal is: on 29.01.2001,

while the appellant was travelling in a tractor bearing

registration No. KL W/ 2369 from Eachome to

Panamaram, the driver of the tractor - the first

respondent lost control over the tractor and the appellant

was thrown on the road. The appellant sustained injuries

and was treated at the Leo Hospital, Kalpetta MACA NO. 1853 OF 2009

from 30.01.2001 to 05.02.2001, i.e., for a period of six

days. The accident occurred on account of the

negligence on the part of the first respondent. The

tractor was owned by the second respondent and insured

with the third respondent. The appellant was a head load

worker by profession and earning monthly income of

Rs.5,000/-. The appellant claimed a total amount of

Rs.1,75,000/- as compensation from the respondents.

3. The respondents 1 and 2 did not contest the

proceedings and were set ex-parte.

4. The third respondent filed a written statement

admitting that the tractor had a valid insurance policy.

Nevertheless, the third respondent denied the age and

occupation of the appellant and contended that the

compensation claimed under the different heads were

excessive.

MACA NO. 1853 OF 2009

5. The appellant examined himself as PW1 and

marked Exts.A1 to A6 in evidence.

6. The Tribunal, after analysing the pleadings and

materials on record, by the impugned award allowed the

claim petition, in part, by permitting the appellant to

realise an amount of Rs. 16,066/- with interest at the rate

of 6% per annum from the date of petition till the date of

realisation along with proportionate costs from the third

respondent.

7. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner is in appeal.

8. Heard the learned Counsel appearing for the

appellant/petitioner and the learned Counsel appearing

for the third respondent/Insurance Company.

9. The sole question that arises for consideration in

the appeal is whether the quantum of compensation MACA NO. 1853 OF 2009

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.A1 FIR, Ext.A2 schene mahazar and Ext.A6

AMVI report substantiates the fact that the accident

occurred on account of the negligence on the part of the

first respondent. Admittedly, the second respondent was

the owner of the tractor and the third respondent was MACA NO. 1853 OF 2009

the insurer. Therefore, it is the third respondent who is

liable to indemnify the second respondent his liability

caused on account of the accident.

Notional Income

12. The appellant had claimed that he was a head

load worker and earning a monthly income of Rs.5,000/- .

However, the Tribunal fixed the notional income at

Rs.2,100/-.

13. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited

[(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.

14. Following the parameters in the above decision

and considering the fact that the appellant was a head

load worker and the accident occurred in the year 2001, MACA NO. 1853 OF 2009

I am of the opinion that the appellant's notional income

can safely be fixed at Rs.3,000/- per month.

Disability

15. Although the appellant had produced Ext.A5

disability certificate, wherein it is certified that the

appellant has a permanent disability of 5%, the Tribunal

for the reason that the appellant had not examined the

doctor who issued Ext.A5, after seeing the appellant who

was examined as PW1, fixed his permanent disability at

3%. I do not find any error in the course adopted by the

Tribunal. Therefore, I confirm the finding of the Tribunal

with regard to the percentage of disability of the

appellant at 3%.

Loss of earnings

16. As per Ext.A5, it is seen that the appellant was

advised complete bed rest for a period of six weeks. In MACA NO. 1853 OF 2009

the said circumstances, particularly taking note of the

fact that the appellant had sustained a fracture and was

advised bed rest, I hold that the appellant was

indisposed for three months. In view of the re-fixation of

the notional income of the appellant at Rs.3,000/- and

the period of indisposition as three months, I hold that

the appellant is entitled for 'loss of earnings' at

Rs.9,000/- instead of Rs.1,000/- awarded by the Tribunal.

Loss due to disability

17. In view of the re-fixation of the notional income

of the appellant at Rs.3,000/-, the appellant is entitled for

enhancement of compensation for loss due to disability

at Rs.11,880/- (Rs.3,000 x 11 x 12x 3/100) i.e., an

enhancement of Rs.3,564/-.

By-stander Expenses

18. It is on record that the appellant had undergone MACA NO. 1853 OF 2009

in-patient treatment for a period of six days. The

Tribunal awarded only an amount of Rs.200/- towards by-

stander expenses, which according to me is on the lower

side. Hence, I re-fix the by-stander expenses at Rs.250/-

per day for six days, i.e., Rs.1,200/- , an enhancement of

Rs.1,000/-.

Pain and sufferings

19. The appellant had claimed an amount of

Rs.20,000/- as compensation for pain and sufferings. The

Tribunal only awarded an amount of Rs.5,000/-. Taking

note of the injuries sustained by the appellant,

particularly a fracture on his right ankle that he was

advised complete bed rest for a period of six weeks and

was indisposed for a period of three months, I am of the

firm opinion that the appellant is entitled for a further

amount of Rs.5,000/- under the head 'pain and MACA NO. 1853 OF 2009

sufferings'.

Loss of amenities

20. The appellant had claimed an amount of

Rs.20,000/- as compensation under the afore-said head.

However, the Tribunal did not award any amount

towards 'loss of amenities'. Taking note of the injuries

sustained by the appellant and that he has suffered 3%

permanent disability, I hold that the appellant is entitled

for compensation under the head 'loss of amenities' at

Rs.5,000/-.

21. With respect to the other heads of

compensation, I find that the Tribunal had awarded

reasonable and just compensation.

22. On an overall re-appreciation of the pleadings,

materials on record and the law referred in the afore-

cited decision, I am of the definite opinion that the MACA NO. 1853 OF 2009

appellant/petitioner is entitled for enhancement of

compensation as modified and recalculated above and

given in the table below for easy reference.

Sl.   Heads of claim            Amount         Amounts
                              awarded by modified and
No                                the      recalculated by
                              Tribunal (in    this Court
                                rupees)

1     Loss of earnings          1,000/-           9,000/-

2     Transport                  500/-             500/-

3     Expenses for extra         300/-             300/-
      nourishment

4     Damage             to      250/-             250/-
      clothing

5     Medical expenses           500/-             500/-

6     Compensation for          5,000/-          10,000/-
      pain         and
      sufferings
 MACA NO. 1853 OF 2009


7    By-standers              200/-        250/-
     expenses

8    Compensation for             Nil     5,000/-
     loss of amenities

9    Loss      due      to   8,316/-      11,880/-
     disability

     Total                   16,066/-     37,680/-

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

enhancing the compensation by a further of amount of

Rs.21,614/- (Rupees Twenty One Thousand Six Hundred

and Fourteen Only) with interest at the rate of 6% per

annum from the date of claim petition till the date of

deposit, after deducting the period of 653 days, i.e, the

period of delay in preferring the appeal and as ordered

by this Court on 30.03.2021 C.M.Appl.No.2125 of 2009,

and proportionate costs. The third respondent shall MACA NO. 1853 OF 2009

deposit the enhanced compensation with interest and

proportionate costs before the Tribunal, within a period

of two months from the date of receipt of a certified copy