Kerala High Court

Accident Claims Tribunal ... vs By Adv. Sri.K.K.Mohamed Ravuf 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.142 OF 2014(C)

 AGAINST THE AWARD IN OP(MV)NO.255/2009 DATED 06-09-2013 OF MOTOR
              ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA


APPELLANT/PETITIONER

             ARUN ALIAS
             S/O.P.V.ALIAS,
             PUTHENPURACKAL HOUSE,
             ANJALPETTY P.O,
             PAMPAKKUDA 686 667.

             BY ADV. SRI.K.K.MOHAMED RAVUF

RESPONDENTS/RESPONDENTS:

      1      KRISHNAKUMAR A K
             S/O.KURIAN,
             ASARIPARAMBIL HOUSE,
             ALANGADU P.O,
             THIRUVALLOOR, NORTH PARAVUR,
             ERNAKULAM DISTRICT.

      2      SHIBU P.B
             S/O.BABU, PARAYATHUPARAMBIL HOSUE,
             KEDAMANGALAM, NORTH PARAVUR,
             ERNAKULAM DISTRICT.

      3      THE UNITED INDIA INSURANCE CO.LTD
             JOS TRUST BUILDING, PB NO.3644,
             CHITTOOR ROAD, KOCHI 682 035.

             R3 BY ADV. SRI.RAJESH THOMAS
             SRI.PMM.NAJEEB KHAN


             R3 BY JOHN JOSEPH VETTIKAD, SC

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.No.142 OF 2014(C)
                               2


                              C.S.DIAS,J
                  ------------------------
                      MACA No. 142 of 2014
                  ------------------------
                Dated this the 5th day of March, 2021

                            JUDGMENT

The appellant was the petitioner in OP (MV)

No.255 of 2009 on the file of the Motor Accidents

Claims Tribunal, Muvattupuzha. The respondents in

the claim petition are the respondents in the appeal.

For the sake of convenience, the parties are referred

to as per their status in the claim petition.

2. The concise case of the petitioner in the claim

petition, for the determination of the appeal, is that:

on 25.12.2008 while the petitioner was riding pillion

on the motorcycle bearing registration No.KL- 17/D-

2279 on the Aluva-Paravoor State Highway, a

motorcycle bearing registration No.KL-42/2492

(offending vehicle) ridden by the 2nd respondent in a

rash and negligent manner hit the motorcycle on

which the petitioner was riding. The offending vehicle

was owned by the 1st respondent and insured with the MACA.No.142 OF 2014(C)

3rd respondent. The petitioner sustained serious

injuries and was admitted as an in-patient from

25.12.2008 to 10.01.2009 at the Medical Trust

Hospital. The petitioner sustained a head injury,

fracture on Rt.ZM complex, fracture of Lt. occipital

bone, fracture on radius, fracture on Prox.phalynx of

little finger and other injuries. He had to undergo CT

Brain imaging on 25.12.2008 and 26.12.2008. He was

put on ventilator support. Tracheostormy was done for

better tracheobronchial toileting. The petitioner

underwent plastic surgery consultation and was

discharged on 10.01.2009, with an advice to have a

review in neurosurgeon ward after two weeks. The

petitioner prayed that the respondents 1 to 3 may be

directed to pay the compensation of Rs.8,83,500/.

3. The respondents 1 and 2 were absent and were

set ex-parte.

4. The 3rd respondent filed written statement,

inter alia, refuting the allegations in the claim

petition. The 3rd respondent contended that the MACA.No.142 OF 2014(C)

accident occurred solely due to the rashness and

negligence of the rider of motorcycle on which the

petitioner was a pillion rider. The compensation

claimed by the petitioner under various heads were

excessive or exorbitant. Hence, the 3 rd respondent

sought for the dismissal of the claim petition.

5. The petitioner produced and marked Exts.

A1 to A13 in evidence. Ext.C1 disability certificate

issued by the Medical College Hospital, Kottayam was

also marked in evidence. Neither party adduced oral

evidence.

7. After considering the pleadings and materials

on record, the Tribunal by the impugned award

allowed the claim petition, in part, by permitting the

petitioner to recover an amount of Rs.4,32,600/- with

interest at the rate of 8% per annum from the date of

petition till the date of realization with proportionate

cost from the 3rd respondent.

8. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner is in appeal.

 MACA.No.142 OF 2014(C)



           9.     Heard     the           learned      counsel       for   the

      appellant/petitioner            and       the     learned       counsel

appearing for the 3rd respondent/3rd respondent in the

appeal.

10. The sole question that emerges for

consideration is whether the quantum of

compensation awarded by the Tribunal is reasonable

and just.

11. 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.

12. Exts.A6 and A7 wound certificate and MACA.No.142 OF 2014(C)

discharge summary substantiate that the petitioner

met with an accident on 25.12.2008 and was admitted

as an in-patient till 10.01.2009. The police after

investigation have filed Ext.A5 charge sheet in Crime

No.1911/2008 of the Paravur Police Station, which

proves that it was due to the negligence on the part of

the 2nd respondent that the accident occurred. It is

also not disputed by the 3rd respondent that the 3rd

respondent was the insurer of the offending vehicle.

13. The petitioner had claimed that he was a

B.Tech student in Sree Narayana Gurukulam

Engineering College, Kadayirippu. To substantiate the

said averment the petitioner produced Exts.A8, A9,

A12 and A13 documents.

14. The principal dispute in this appeal is the

fixation of notional income of the petitioner by the

Tribunal.

15. The learned counsel for the

appellant/petitioner argued that the petitioner has not

shown any income in column No.6 of the claim MACA.No.142 OF 2014(C)

petition because he was a student. However, the

Tribunal has fixed the petitioner's notional income at

only Rs.4,500/- per month. The learned counsel relied

on the decision of the Hon'ble Supreme Court in Kajal

v. Jagadish Chand [2020(1) KLT 743(SC)] and

contended that in the said case the Hon'ble Supreme

Court held that the assesment made by the High

Courts in fixing the notional income of a 12 year old

girl at Rs.15,000/- was proper. It was observed that

the young girl in the said case would have earned

much more than Rs.15,000/- if the accident had not

occurred. The learned counsel also placed reliance on

the decision of a Division Bench of this Court in

Ramakrishnapillai K. and others v. New India

Assurance Co. Ltd.(2015 KHC 3703), wherein, this

Court Division Bench had fixed the notional income of

an engineering student at Rs.12,000/- for an accident

that occurred in 2006. The learned counsel contended

that the course adopted by the Hon'ble Supreme

Court in Kajal and this Court in Ramakrishnapillai K MACA.No.142 OF 2014(C)

(supra) may be followed in the present case, for fixing

the notional income of the appellant/petitioner.

16. The learned counsel for the 3rd respondent-

insurance company on the contrary argued that the

impugned award is perfectly justifiable and warrants

no interference by this Court.

Notional income

17. As already referred to, it is an undisputed

fact that the petitioner was an engineering student as

proved by Exts.A8, A9, A12 and A13. The petitioner

had rightly not shown any income in the claim petition

because he was a student. It was the duty of the

Tribunal to have notionally fixed the income of the

petitioner. Following the parameters laid down in the

afore-cited decisions, I am of the considered opinion

that the petitioner's notional income can safely be

fixed at Rs.15,000/- per month, as the accident

occurred in the year 2008 and that the petitioner was

a sixth semester student. He would have graduated

within a year and easily earned Rs.15,000/- or more. MACA.No.142 OF 2014(C)

In the said circumstances, I re-fix the notional income

of the petitioner at Rs.15,000/-, and hold that the

notional income of Rs.4,500/- fixed by the Tribunal is

too low.

Disability certificate

18. The petitioner was examined by the Medical

Board of the Medical College Hospital, Kottayam. It

was found that the petitioner suffers from 14.08%

permanent disability. The said disability was accepted

by the Tribunal. In the light of Ext.C1 certification

made by the Medical Board, I am of the opinion that

the above assessment is to be followed by rounding of

the disability at 15%. Hence, I re-fix the permanent

disability of the petitioner at 15%.

Loss of studies

19. In the light of the re-fixation of the

petitioner's notional income and that the petitioner

had suffered serious injuries including a head injury

and six fractures, which led to his hospitalization for a

period of 17 days, I am of the firm opinion that the MACA.No.142 OF 2014(C)

petitioner had lost his studies for a period of three

months. In such circumstances I hold that the

petitioner is to be granted compensation on account

of loss of studies for a period of three months

calculated at Rs.15,000/- per month i.e., totalling to

Rs.45,000/-.

By-stander expenses

20. Eventhough, the petitioner was hospitalized

for a period of 17 days, the Tribunal had awarded by-

stander expenses at only Rs.100/- per day i.e.,

Rs.1,600/- for the period of 16 days. The said amount

is too low. An amount of Rs.300/- per day is reasonable

and just. Accordingly, I re-fix by-stander expense at

Rs.300/- per day for a period of 17 days, i.e., totalling

to an amount of Rs.5,100/-

Other heads of claim

21. With respect to the compensation awarded

by the Tribunal, under the other heads of claim

namely, Transportation, Extra nourishment, pain and

sufferings, loss of amenities, I find that the Tribunal MACA.No.142 OF 2014(C)

has awarded reasonable and just compensation.

Under the medical expenses also, the Tribunal has

rightly awarded the actual expenditure incurred by

the petitioner.

22. On an overall re-appreciation of the

pleadings, materials on record and the law laid down

in the afore-cited decisions, I am of the considered

opinion that the 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         Amount        Amounts
       No                              claimed     awarded by     modified and
                                                   the Tribunal   recalculated
                                                    (in rupees)   by this Court
       1     Loss of studies           50,000/-      18000/-        45,000/-

       2     Pain and sufferings      1,00,000/-     40,000/-       40,000/-

       3     Loss of amenities         75,000/-      25000/-        25,000/-

       4     By-stander expenses       4,000/-       1,600/-         5,100/-

       5     Extra     nourishment     3,000/-       4,000/-         4,000/-
             charges
       6     Transportation            3,000/-       1,500/-         1,500/-
             charges
       7     Medical     treatment    2,50,000/-    2,20,806/-     2,20,806/-
             charges
       8     Compensation       for   1,88,000/-    1,21,651/-     4,86,000/-
             permanent disability
                                                    4,32,557/-      8,27,406
 MACA.No.142 OF 2014(C)

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

enhancing the compensation by a further amount of

Rs.3,94,849/-(-(Rupees three lakh ninety four thousand

eight hundred and forty nine only) with interest at the

rate of 8% per annum on the enhanced compensation,

from the date of petition till the date of realisation,

along with proportionate costs. The third respondent

shall deposit the additional compensation granted in

this appeal with proportionate interest and costs

within a period of two months from the date of receipt

of a certified copy of the judgment, after deducting

the liability of the appellant/petitioner towards