Kerala High Court

Abdul Aneesh vs Siju Mon on 9 March, 2021

MACA.No.2088 OF 2015

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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR.JUSTICE C.S.DIAS

   TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

                       MACA.No.2088 OF 2015(E)

  AGAINST THE AWARD IN OP(MV) 682/2011 OF the ADDITIONAL MOTOR
             ACCIDENTS CLAIMS TRIBUNAL -II, MANJERI


APPELLANT/PETITIONR:

             ABDUL ANEESH
             AGED 32 YEARS
             S/O. UNNIHYDER, KANHIRALA HOUSE, MAMPAD P.O,
             NILAMBUR TALUK, MALAPPURAM.

             BY ADV. SRI.H.PRAVEEN (KOTTARAKARA)

RESPONDENTS/RESPONDENTSS:

      1      SIJU MON
             S/O. BABY C.A, CHALAPPATTU HOUSE, PULLIPPADADAM,
             MAMPAD P.O., MALAPPURAM DISTRICT - 676 542.

      2      AUGUSTY BABY
             S/O. VARGHESE AUGUSTY, CHALAPPATTU HOUSE,
             PULLIPADADAM, MAMPAD P.O., MALAPPURAM DISTRICT -
             676 542.

      3      THE NEW INDIA ASSURANCE COMPANY LIMITED
             VARIKODAN BUILDING,IST FLOOR, NILAMBUR ROAD,
             MANJERI, MALAPPURAM DISTRICT- 676 121.

             R1, R3 BY ADV. SMT.P.LISSY JOSE.

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 05-03-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA.No.2088 OF 2015

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                           JUDGMENT

Dated this the 5th day of March 2021

The appellant was the petitioner in O.P.(MV)

No.682/2011 on the file of the Additional Motor

Accident Claims Tribunal - II, Manjeri. The

respondents in the appeal were the respondents in

the claim petition. The parties are, for the sake of

convenience, referred to as per their status in the

claim petition.

2. The concise case of the petitioner in the

claim petition, relevant for the determination of the

appeal, is that: on 22.10.2010 while the petitioner

was standing on the Nilambur - Manjeri road, a car

bearing Reg. No.KL 60-2859 (offending vehicle)

driven by the 1st respondent in a rash and negligent

manner, hit the petitioner. The petitioner sustained

serious injuries and was hospitalised for a period of

43 days in Alshifa Hospital, Perinthalmanna. The

petitioner was running a cool bar at Nilambur Bus

station. The petitioner was getting a monthly MACA.No.2088 OF 2015

income of Rs.12,000/-. The petitioner has sustained

permanent disability. The 2nd respondent is the

owner of the offending vehicle and the 3 rd

respondent is the insurer. Hence, the respondents

are jointly and severally liable to compensate the

petitioner. The petitioner is entitled for a

compensation, which he quantified at Rs.5,00,000/-.

3. The respondents 1 and 2 were absent and

were set ex parte.

4. The 3rd respondent - Insurance Company

- filed a written statement, inter alia, refuting the

allegations in the claim petition. Nevertheless, the

3rd respondent admitted that the offending vehicle

was having a valid insurance policy issued by the 3 rd

respondent. The 3rd respondent also contended that

the amount sought for under the various heads of

claim in the claim petition were excessive and

exorbitant. Hence, the 3rd respondent prayed that

the claim petition be dismissed.

5. The Doctor who treated the petitioner

was examined as PW1 and Exts.A1 to A7 were MACA.No.2088 OF 2015

marked in evidence. Ext.X1 disability certificate

was marked as a court exhibit. The respondents

did not adduce any evidence.

6. The Tribunal, after analysing the

pleadings and materials on record, by the

impugned award allowed the claim petition, in part,

by awarding the petitioner a compensation of

Rs.5,41,889/- with interest at the rate of 9% per

annum from the date of petition till the date of

realisation and proportionate costs. The 3 rd

respondent was directed to deposit the

compensation amount.

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 3rd respondent/Insurance

Company.

MACA.No.2088 OF 2015

9. The question that emerges for

consideration in this appeal is whether the quantum

of compensation awarded by the Tribunal is just and

reasonable?

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.A2 final report filed by the Police

proves that the accident occurred on 22.10.2010 due

to the rash and negligent driving of the offending

vehicle by the 1st respondent, who hit the petitioner.

Ext.A5 discharge summary shows that the petitioner

was hospitalised for a period of 43 days in the MACA.No.2088 OF 2015

Alshifa Hospital, Perinthalmanna. Ext.A7 series

medical bills proves that the petitioner had spent a

considerable amount towards his medical expenses.

Ext.A4 series medical reports also prove the injuries

sustained by the petitioner. Therefore, it is

substantiated beyond any doubt that it was the the

1st respondent who caused the accident and that the

offending vehicle was insured with the 3 rd

respondent. Hence the 3rd respondent is liable to

indemnify the respondents 1 and 2 in paying the

compensation.

12. The principal area of dispute in the appeal

is whether the notional income fixed by the

Tribunal is correct or not and also whether the

petitioner is entitled for compensation for future

prospects.

13. The accident occurred on 22.10.2010. The

petitioner claimed that he was running a cool bar at

the Nilambur Bus Station. He claimed that he was

getting an income of Rs.12,000/- per month.

However, the Tribunal fixed the notinal income of the MACA.No.2088 OF 2015

petitioner at Rs.4,000/- per month.

14. In Ramachandrappa v. Manager,

Royal Sundaram Alliance [(2011) 13 SCC 236]

and in Syed Sadiq and others v. Divisional

Manager, United India Insurance Co.Ltd

[(2014) 2 SCC 735] , the Hon'ble Supreme Court

has fixed the notional income of a coolie worker

in year 2004 at the rate of Rs.4,500/- per month

and that of a vegetable vendor at the rate of

Rs.6,500/- per month in the year 2006,

respectively. Recently, 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 at Rs.7,500/- per month.

Notional income

15. Following the parameters laid down by

the Hon'ble Supreme Court and this Court in the

aforecited decisions, I am of the considered

opinion, especially taking into consideration the MACA.No.2088 OF 2015

fact that the accident occurred in the year 2010,

that the petitioner's notional income can safely

be fixed at Rs.7,500/- per month. Hence, I re-fix

the notional income of the petitioner at Rs.7,500/-

per month.

Loss of earnings

16. In view of the re-fixation of the notional

income of the petitioner and the fact that he had

loss of earnings for a period of ten months, the

petitioner's loss of earnings is re-fixed at

Rs.75,000/- instead of Rs.40,000/- fixed by the

Tribunal.

Bystander expenses

17. It is seen that the Tribunal had awarded

only an amount of Rs.2,000/- towards bystander

expenses when the petitioner was admittedly

hospitalised for a period of 43 days. I am of the

opinion that the petitioner is entitled for

bystander expenses at the rate of Rs.200/- per MACA.No.2088 OF 2015

day, for a period of 43 days. Accordingly, I

enhance the compensation for bystander

expenses from Rs.2000/- to Rs.8,600/-.

Disability certificate

18. The petitioner was subjected to a

medical examination on his application, by a

competent Medical Board of the Government

Medical College Hospital, Kozhikode. The

Medical Board after examining the petitioner

came to the conclusion that the petitioner has a

functional disability of 43%. Now before this

Court, the petitioner has produced Exts.A8 and

A9 (Annexures A1 and A2) stating that he has a

functional disability of 70%. Exts.A8 and A9

certificates are of the years 2015 and 2020, i.e,

after a period of five and 10 years respectively.

19. In view of the fact that it was on the

request of the petitioner that he was subjected

to a medical examination by a competent Medical MACA.No.2088 OF 2015

Board immediately after the accident and the

Medical Board certifying the disability of the

petitioner at 43% and the petitioner having

accepted the report without any objection, it is

too late in the day for the petitioner, at this stage,

to seek for re-examination by another Medical

Board. Accordingly, this Court by order dated

9.3.2021 in I.A 2/2021 had dismissed the said

application. In the above circumstances, I hold

that the permanent disability of the petitioner is

43% as fixed by the Medical Board in Ext.X1.

20. On a re-appreciation of the impugned

award, it is seen that the Tribunal despite the

law laid down by the Hon'ble Supreme Court in

Pranay Sethi (supra) and in the most recent

decision in Pappu Deo Yadav v. Naresh Kumar

and others [AIR 2020 SC 4424] has not awarded

any compensation for future prospects. MACA.No.2088 OF 2015

Loss due to disability with future prospects

21. Taking into account the fact that the

petitioner was 32 years at the time of accident

and his permanent disability is 43%, I am of the

opinion that the petitioner who was a self-

employed person is entitled to future prospects

at 40%. In such circumstances, in light of the fact

that the petitioner's income has been re-fixed at

Rs.7,500/- per month and that he is entitled to

40% taking into account the multiplier as 16, he

is entitled for compensation under the head 'loss

due to disability with future prospects at

Rs.8,66,880/-, instead of Rs.1,75,000/- awarded by

the Tribunal.

Other heads of claim

22. With respect to the other heads of claim

namely, Transport to hospital, Extra

nourishment, Medical Expenses, Pain and

sufferings, I find that the Tribunal has awarded MACA.No.2088 OF 2015

reasonable and just compensation.

23. 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 hold that the petitioner is

entitled for enhancement of the compensation as

modified and re-calculated above and given in

the table below for easy reference.

SI. Head of claim Amount awarded Amounts modified No (in rupees) and recalculated by this Court 1 Loss of earning 40,000/- 75,000

2 Loss of earning (Partial) Nil Nil 3 Transport to hospital 5,000 5,000 4 Extra nourishment 5,000 5,000 5 Damages to clothing and Nil Nil articles 6 Medical expenses 2,89,889 2,89,889 Bystander expenses 2,000 8,600 Expected future medical Nil Nil expenses For disfigurement Nil Nil 7 Compensation for Pain and 25,000 25,000 suffering 8 Compensation for the 1,75,000 8,66,880 continuing or permanent disability, if any and compensation for the loss of earning power

9. Compensation for future Nil Nil treatment

10. Compensation for Nil Nil disfigurement Total Rs.5,41,889 12,75,369 MACA.No.2088 OF 2015

24. Even though the petitioner had only

claimed an amount of Rs.5,00,000/- as total

compensation, it has been held by the Hon'ble

Supreme Court in Nagappa v. Gurudayal Singh

[2003 (1) KLT 115 (SC)] that there is no restriction in

the Tribunal/Court awarding more compensation

than what is claimed in the claim petition.

In the result, the appeal is allowed by

enhancing the compensation by a further amount of

Rs.7,33,480/- with interest at the rate of 9% per