Kerala High Court
Shantomon Varghese vs The Manager on 3 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
MACA.No.2503 OF 2014(C)
(AGAINST THE AWARD DATED 11-04-2014 IN OP(MV) NO.1090/2011 ON
THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA)
APPELLANT/PETITIONER:
SHANTOMON VARGHESE,
S/O VARGHESE @ CHARLY JOSEPH,PUTHENPRACKAL
HOUSE,KUNNAMMURY @ KURUMBANMOOZHI KARA,KOLLAMULA
VILLAGE,KOTTAYAM DISTRICT.
BY ADVS.
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.MANU TOM
RESPONDENT/2ND RESPONDENT:
THE MANAGER,
THE UNITED INDIA INSURANCE CO.LTD, DAIVASAHAYAM
BUILDINGS, K.K.ROAD, PONKUNNAM, KOTTAYAM
DISTRICT-686506.
R1 BY ADV. SMT.DEEPA GEORGE
OTHER PRESENT:
SMT DEEPA GEORGE .
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA.No.2503 OF 2014(C) 2
JUDGMENT
The petitioner in OP(MV) No.1090 of 2011 on the file of
the Motor Accident Claims Tribunal, Pala is the appellant.
The 2nd respondent in the claim petition is the 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 road accident on 26.02.2011. The concise case of the
petitioner in the claim petition is that, on 26.2.2011 while he
was driving riding pillion on the motorcycle bearing
registration No.KL-3/R-5902, a jeep bearing registration
No.KL-06/3875, owned and driven by the first respondent in
a rash and negligent manner, hit the motorcycle. The
petitioner fell down and sustained serious injuries. He
sustained an open fracture on his right leg and other
wounds. He was hospitalized for the period from 26.2.2011
to 16.3.2011 i.e., for a period of 19 days. He was a painter
by profession and earning an income of Rs.7,000/- per
month. Hence, the petitioner is entitled for a compensation
of Rs.3 lakhs.
3. The first respondent was set at ex parte. The
second respondent filed written objection refuting the
allegations in the claim petition. According to the second
respondent, the accident occurred due to the rashness and
negligence on the part of the driver of the motorcycle, on
which the petitioner was driving pillion. Hence, the 2 nd
respondent prayed that the claim petition be dismissed.
4. The Tribunal, after considering the pleadings and
materials on record, by the impugned award allowed the
claim petition, in part, by directing the 2 nd respondent to pay
the petitioner a compensation of Rs.1,14,140/- along with
interest at the rate of Rs.7.5% per annum from the date of
petition till the date of realization along with proportionate
cost.
5. The comparative table of compensation that was
sought by the petitioner that was awarded by the Tribunal is
as follows:
Part I
Amount Amount Awarded
claimed (in Rs.)
(in Rs.)
Loss of earnings 42,000/- 18,000/-
(6000 X 3 months
Transport to Hospital 10,000/- 2,000/-
Extra-nourishment 5,000/- 1,000/-
Damages to clothing 1,000/- Not entitled
Treatment Expenses 50,000/- 7,500/-
Bystander Expenses 10,000/- 3,800/
(200 X 19 days)
Part II
Pain and suffering 50,000/- 30,000/-
Permanent Disability 2,00,000/- Not entitled
Loss of earning capacity 50,000/- 51,840/-
(6,000 x 12 x 18 x
Total 4,18,000/- 1,14,140/-
Claim is limited to 3,00,000/-
6. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner has preferred this
appeal.
7. Heard the learned counsel appearing for the
appellant/petitioner and the learned counsel appearing for
the respondent/second respondent.
8. From Exts.A1 to A6, it is discernible that the
accident occurred due to the negligence on the part of the
jeep bearing Reg. No.KL-6/3875 owned and driven by the
first respondent. Admittedly, the 2nd respondent is the
insured of the offending vehicle. Exts.A8 and A16 discharge
card and discharge summary substantiate the petitioner was
hospitalized as an inpatient for a period of 19 days.
Exts.A14 and A17 medical bills also prove that the petitioner
had spent money for his medical treatment. Ext.X1 disability
certificate issued by the Medical College Hospital
substantiates that the petitioner had sustained disability @
4% due to the accident.
9. The main area of dispute in the appeal is the
notional income of the petitioner. The petitioner claimed
that he was a painter by profession and getting a monthly
income of Rs.7,000/-. The Tribunal, after considering the
materials on record, fixed the notional income of the
petitioner @ Rs.6,000/-.
10. In Ramachandrappa vs. Manager, Royal
Sundaram Alliance Insurance Company Ltd., (2011
(13) SCC 236) the Hon'ble Supreme Court has fixed
notional income of a Coolie Worker in the year 2004 at
Rs.4,500/-. Similarly, in Syed Sadiq and Others vs.
Divisional Manager, United India Insurance Company
(2014 (2) SCC 735) the Hon'ble Supreme Court has fixed
notional income of a Vegetable Vendor in the year 2006 at
Rs.6.500/-.
11. Following the above parameters and taking into
consideration the petitioner was only 23 years of age and
claimed to be a painter by profession in the year 2011, i.e.,
on the date of accident, the petitioner's notional income can
safely be fixed at Rs.7,000/- as claimed in the claim petition.
12. In light of the re-fixation of the notional income of
the petitioner, his loss of earnings has to be re-fixed at
Rs.21,000/- instead of Rs.8,000/- as fixed by the Tribunal.
13. On a perusal of the impugned award, it is seen
that the Tribunal had not awarded any amount towards loss
of clothing of the petitioner, which I fix at Rs.1,000/-.
Similarly, it is seen that the petitioner had undergone
hospitalization for 19 days, but the Tribunal only awarded
an amount of Rs.200/- per day towards bystander expenses,
which I feel is very low. I accordingly enhance the
bystander expenses to Rs.5,700/- i.e., Rs.300/- per day.
14. Even though the petitioner had not claimed any
amount under loss of amenities, it is settled law that a
person sustains injuries in an accident, he is entitled for a
reasonable amount towards loss of amenities. In the said
circumstances, I fix compensation under the head 'loss of
amenities' at Rs.20,000/-.
15. In the light of the re-fixation of the notional
income of the petitioner, the petitioner is also entitled for
enhancement of compensation under the head 'loss of
disability' at Rs.60480/-.
16. With respect to the other heads of claim, namely,
transport, extra nourishment, medical expenses and pain
and sufferings, I find that the Tribunal has fixed as
reasonable and just compensation .
17. Therefore, on an overall 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 petitioner is entitled for
enhancement of the amounts as modified and recalculated
above and given in the table below for easy reference.
Sl. Head of Amount Amount Amounts
No. claim claimed(in awarded by the modified and
rupees) Tribunal (in recalculated
rupees) by this Court
1 Loss of 42,000/- 18,000/-(6000 x 21,000/-
earnings 3 months)
2 Transport 10,000/- 2,000/- 2,000/-
to Hospital
3 Damages 1,000/- Not entitled 1,000/-
to clothing
4 Bystander 10,000/- 3,800/-(200 x 5,700/-
Expenses 19 days)
5 Extra 5,000/- 1,000/- 1,000/-
nourishme
nt
6 Medical 50,000/- 7,500/- 7,500/-
expenses
7 Pain and 50,000/- 30,000/- 30,000/-
suffering
8 Loss of --- ---- 20,000/-
amenities
9 Loss due 2,00,000/- Not entitled 60,480/-
to
disability
Total 1,48,680/-
In the result, the appeal is allowed in part by
enhancing the compensation by a further amount of
Rs.34540/- with interest at the rate of Rs.7.5% per annum
on the enhanced compensation from the date of petition till
the date of realisation. The respondent/second respondent
shall deposit the additional compensation granted in this
appeal before the Tribunal with interest and proportionate
costs within a period of two moths from the date of receipt
of a copy of this judgment. The Tribunal shall disburse the
additional compensation to the petitioner in accordance
with law.
Sd/-
C.S.DIAS,
JUDGE
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