Kerala High Court
M.Harish vs Sheeja Aneesh on 5 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942
MACA.No.2025 OF 2014
AGAINST THE AWARD IN OP(MV) 2068/2008 DATED 30-11-2013 ON THE FILE
OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/PETITIONER:
M.HARISH,
AGED 32 YEARS,
S/O.MURALI, MOOZHOTHKAD HOUSE, JANATHA JUNCTION,
KUMBALANGHIVAZHI, PALLURUTHY, COCHIN-682 006
BY ADVS.
SRI.RAHUL SASI
SMT.NEETHU PREM
RESPONDENTS/RESPONDENTS:
1 SHEEJA ANEESH,
W/O.ANEESH, CHAKKANATTUPADIKKAL HOUSE, NAMBIAPURAM
PALLURUTHY, COCHIN-682 006
2 ANTONY JESTINE,
S/O.ANTONY, PUTHENVEETTIL HOUSE, SOUTH OF GOVERNMENT
HOSPITAL, KUMBALANGHI, COCHIN-682 007
3 THE NATIONAL INSURANCE CO.LTD.,
ST.AUGUSTINE CHURCH BUILDING, N.H.BYEPASS JUNCTION
AROOR, PIN-688 534
4 UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE-4, JOS TRUST BUILDING, CHITTOOR ROAD
COCHIN-682 035
R1 BY ADV. SRI.M.A.GEORGEBONO MEMO
R1 BY ADV. SMT.DEEPA GEORGE
R1 BY ADV. SRI.P.MURALEEDHARAN
R3 BY ADV. SRI.M.A.GEORGE(B/O,NO MEMO)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
01-09-2014, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:
MACA.No.2025 OF 2014 2
JUDGMENT
The appellant was the petitioner in OP(MV) No.2068 of
2008 on the file of the Addl. Motor Accident Claims
Tribunal, Ernakulam. The respondents in the claim petition
are the respondents in the appeal. The parties are, for the
sake of convenience, referred to as per their litigate status
in the claim petition.
2. The concise case of the petitioner in the claim
petition before the Tribunal, for the determination of the
appeal, was that: On 23.10.2006, as the petitioner was
riding a motorcycle bearing Reg.No.KL-7/AD9465 through
the Kumbalangi - Palluruthy road, a bus bearing Reg.No.KL-
7AZ 2554 (offending vehicle) driven by the 2 nd respondent
in a rash and negligent manner hit the motorcycle of the
petitioner. The petitioner sustained serious injuries and was
treated as an inpatient at the Specialist Hospital, Ernakulam
from 23.10.2006 to 13.11.2006. The first respondent was
the owner of the vehicle and the third respondent was the
insurer. The 4th respondent was the insurer of the
motorcycle. The petitioner claimed a compensation of
Rs.10,02,000/- which was limited to Rs.4,00,000/-.
3. The respondents 1 and 2 were absent and were
set ex parte.
4. The third respondent filed a written statement
refuting the allegations in the claim petition. However, the
third respondent admitted that the offending vehicle had a
valid insurance policy. The third respondent also denied
that the petitioner sustained injuries and contended that the
compensation claimed was excessive and exorbitant.
5. The 4th respondent also filed a written statement
admitting that the motorcycle was insured by it. However,
the 4th respondent contended that it had no liability to pay
any amount towards compensation because the accident
was caused due to the negligence of the driver of the
offending vehicle.
6. The petitioner was examined as PW1 and Exts.A1
to A11 series were marked in evidence. The non-disability
certificate was marked as Ext.X1. The respondent did not
let in any evidence.
7. The Tribunal, after considering the pleadings and
materials on record, by the impugned award allowed the
claim petition in part, by permitting the petitioner to realise
an amount of Rs.1,70,310/- from the third respondent as
compensation with interest on it at 8% per annum from
4.10.2008 till the date of deposit and proportionate cost.
8. The comparative table of compensation that was
sought for by the petitioner and that was awarded by the
Tribunal is as follows:
Head Amount claimed Amount Awarded
(in Rs.) (in Rs.)
Loss of earnings 1,00,000/- 16,000/-
(4000 X 4 months
Transportation 10,000/- 1,000/-
expenses
Extra-nourishment 25,000/- 2,500/-
Damages to clothing 2,000/- 1000/-
Medical Treatment 100,000/- 87,410/-
Bystander Expenses 15,000/- 2,400/
(200 X 21 days)
Pain and suffering 50,000/- 30,000/-
Permanent Disability 1,50,000/- Not entitled
Compensation for 25,000/- 10,000/-
disfiguration
Loss of amenities and 200,000/-
enjoyment in life
Loss of earning 2,00,000/-
capacity
Expenses for future 75,000/-
treatment
Compensation for 50,000/-
short expectation in
life
Total 10,02,000/-- 1,70,310/-
Claim is limited to
Rs.4,00,000/-
9. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
10. Heard the learned counsel appearing for the
appellant/petitioner and the learned counsel appearing for
the respondents 3 and 4/ respondents 3 and 4 - Insurance
Companies.
11. The question that emerges for consideration in
this appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just.
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' 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. Ext.A10 charge sheet filed by the police after
investigation substantiates that the accident occurred on
23.10.2006, as pleaded in the claim petition, due to the
rashness and negligence on the part of the second
respondent. Ext.A2 discharge summary also proves that the
petitioner underwent hospitalization for a period of 21 days.
It is discernible from Ext.A1 wound certificate that the
petitioner sustained serious injuries including type 3 open
fracture on the medial malleolus with bone loss and soft
tissue loss. However, as per Ext.X1 certificate, it is
evidenced that the petitioner had not suffered any
permanent disability.
14. The area of dispute is regarding the fixation of
notional income of the petitioner.
15. The petitioner had claimed that he was a marble
stone worker earning an amount of Rs.7,500/- per month.
However, the Tribunal, on finding that no reliable materials
were placed to prove the vocation of the petitioner, fixed the
petitioner's monthly notional income at Rs.4,000/-.
16. The Hon'ble Supreme Court in Ramachandrappa
vs. Manager, Royal Sundaram Alliance Insurance
Company Ltd., (2011 (13) SCC 236) and Syed Sadiq
and Others vs. Divisional Manager, United India
Insurance Company (2014 (2) SCC 735) has fixed the
notional income of a Coolie Worker at Rs.4.500/- per month
in the year 2004 and that of a Vegetable Vendor in the year
2006 at Rs.6500/- per month. Similarly, this Court in
Soman v. Jinesh James and Others [ILR 2020 (3)
Kerala 1003] has fixed the notional income of a Coolie
Worker in the year 2010 @ Rs.7,500/- per month.
17. Following the above parameters laid down by the
Hon'ble Supreme Court and this Court in the aforecited
decisions, I am of the opinion that, the petitioner who
claimed to be a marble stone worker and there being no
contra evidence from the respondents, and the accident
having occurred in the year 2006, the petitioner's notional
income can safely be fixed at Rs.7,500/- as claimed in the
claim petition.
18. In light of the re-fixation of the notional income of
the petitioner, his loss of earnings is re-fixed at Rs.30,000/-
instead of Rs.16,000/- as fixed by the Tribunal.
19. It is seen that the petitioner had undergone
inpatient treatment for 21 days at the Specialist Hospital
and underwent external fixation for healing the fracture.
Though the petitioner had claimed an amount of Rs.50,000/-
under the head 'pain and suffering', the Tribunal awarded
only an amount of Rs.30,000/-. This according to me is on
the lower side. Taking note of the above materials, I am of
the opinion that the petitioner is entitled to an amount of
Rs.50,000/- under the said head.
20. With respect to the other heads of claim, I find
that the Tribunal has awarded reasonable and just
compensation.
21. Therefore, on an overall re-appreciation of the
pleadings, materials on record and the law laid down by the
Hon'ble Supreme Court and this 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.
Head Amount Amount Amounts
claimed Awarded modified and
(in Rs.) by the recalculated
Tribunal by this Court
(in Rs.)
Loss of earnings 1,00,000/- 16,000/- 30,000/-
(4000 X 4
months
Transportation 10,000/- 1,000/- 1,000/-
expenses
Extra- 25,000/- 2,500/- 2,500/-
nourishment
Damages to 2,000/- 1000/- 1000/-
clothing
Medical 100,000/- 87,410/- 87,410/-
Treatment
Bystander 15,000/- 2,400/ 2,400/
Expenses (200 X 21 (200 X 21
days) days)
Pain and 50,000/- 30,000/- 50,000/-
suffering
Permanent 1,50,000/- Not entitled --
Disability
Compensation for 25,000/- 10,000/- 10,000/-
disfiguration
Loss of amenities 200,000/-
and enjoyment in
life
Loss of earning 2,00,000/-
capacity
Expenses for 75,000/-
future treatment
Compensation for 50,000/-
short expectation
in life
Total 10,02,000/- 1,70,310/- 2,04,341/-
(Claim is limited to
Rs.4,00,000/-)
In the result, the appeal is allowed in part, by
enhancing the compensation by a further amount of
Rs.34,000/- with interest at the rate of Rs.8% per annum on
the enhanced compensation from the date of petition till the
date of realisation and proportionate costs. The third
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 appellant/
petitioner in accordance with law.
Sd/-.
C.S.DIAS,
JUDGE
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