Kerala High Court
T.V.Rajendran vs New India Assurance Company Ltd on 3 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
MACA NO. 2531 OF 2012
AGAINST THE AWARD DATED 13.02.2010 IN OPMV 1212/2006 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, PALAKKAD.
APPELLANT/PETITIONER:
T.V.RAJENDRAN
AGED 39 YEARS, S/O. VELAYUDHAN, THEYYATHUMTHODI
VEEDU, THANDATHARA, KINAVALLUR, PARLI P.O, PALAKKAD.
BY ADV SRI.JACOB SEBASTIAN
RESPONDENT/RESPONDENT NO.2:
NEW INDIA ASSURANCE COMPANY LTD.
VARIKKODAN BUILDING, NILAMBUR ROAD, MANJERI,
MALAPPURAM DISTRICT.
BY ADV GEORGE CHERIAN (SR.)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2
MACA No.2531/2012
Dated this the 3rd day of November, 2021.
JUDGMENT
The appellant was the petitioner in OP(MV)
No.1212/2006 on the file of the Motor Accidents Claims
Tribunal, Palakkad. The respondent in the appeal was
the 2nd respondent before the Tribunal. As the 2 nd
respondent had admitted the insurance policy and its
liability, the appellant has not impleaded the
respondents 1, 3 to 5 before the Tribunal as parties in
the appeal. Therefore, the parties, for the sake of
convenience, referred to as per their status before the
Tribunal.
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 an accident on 02.06.2006. It was his case
that, on the aforesaid date, while he was travelling in a
MACA No.2531/2012
bus bearing registration No. KL 9D/4545 from Melattur
to Manjeri, when the bus reached Peruvacad, a lorry
bearing registration No. KL 10A/ 4887 (lorry), driven by
the 2nd respondent in a negligent manner, hit the bus.
The petitioner was initially eking his livelihood as a
barber. However, due to a railway accident, his left hand
had to be amputated. Thereafter, the petitioner started
a stationary shop. He was earning a monthly income of
Rs.3000/- . The petitioner was treated as an inpatient for
a period of 22 days at the Moulana Hospital ,
Perinthalmanna and Medical College Hospital, Thrissur.
The lorry was owned by the 1 st respondent and insured
with the 2nd respondent. The bus was owned by the 3rd
respondent, driven by the 4th respondent and insured
with the 5th respondent. Hence, the petitioner claimed a
compensation of Rs.6,40,000/- from the respondents.
3. The 1st respondent had filed a written statement
contending that the accident occurred due to the
negligence of the driver of the bus.
MACA No.2531/2012
4. The 2nd respondent had filed a written statement
reiterating the very same contentions as that of the 1 st
respondent. It was also contended that the
compensation claimed under the different heads was
excessive.
5. The petitioner was examined as PW1 and
Exhibits A1 to A19 series were marked in evidence. The
case records and disability certificate of the petitioner
were marked as Exhibits X1 and X2. The respondents
did not let in any evidence.
6. The Tribunal, after analysing the pleadings and
materials on record, fixed the disability of the petitioner
at 50% and allowed the claim petition in part, by
permitting the petitioner to realise from the 2 nd
respondent an amount of Rs.2,55,000/- with interest @
7.5% per annum from the date of petition till the date of
realisation and a cost of Rs.250/-.
7. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
MACA No.2531/2012
8. Heard Sri.Jacob Sebastian, the learned counsel
appearing for the petitioner and Smt. Latha Susan
Cherian, the learned counsel appearing for the
respondent/insurer.
9. The question that arises for consideration in
this appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just.
Negligence and liability
10. Exhibit A13 charge sheet filed by the police
proves that the accident occurred due to the negligence
of the 1st respondent - the driver of the lorry.
Admittedly, the 2nd respondent was the insurer of the
lorry and had not proved that the 1 st respondent had
violated the insurance policy conditions. Therefore, the
2nd respondent is to indemnify the liability of the 1 st
respondent arising out of the accident.
Income
11. The petitioner had claimed that he was running
MACA No.2531/2012
a stationery shop and was earning a monthly income of
Rs.3000/-. However, the Tribunal fixed the notional
monthly income of the petitioner at Rs.2250/-.
12. In Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236], the Honourable Supreme Court
has fixed the notional monthly income of a coolie worker
in the year 2004 at Rs. 4500/- per month.
13. Following the yardstick in the afore-cited
decision and considering the fact that the accident
occurred in the year 2006 and that the petitioner had
claimed that he was earning a monthly income of
Rs.3000/-, I fix the monthly notional income of the
petitioner at Rs.3000/-.
Loss of earnings
14. It is proved by Exhibit A3 wound certificate,
that the petitioner had sustained serious injuries.
Exhibit X2 disability certificate shows that the petitioner
MACA No.2531/2012
has sustained a permanent disability of 50%. He was
also treated as inpatient for a period of 22 days. In such
circumstances, I hold that the petitioner was indisposed
for a period of six months.
15. In view of the re-fixation of the notional monthly
income of the petitioner at Rs.3000/-, I award the
petitioner an amount of Rs.18,000/- towards 'loss of
earnings'.
Disability of the petitioner
16. As per Exhibit X2 certificate issued by the
Medical Board, it is found that the petitioner's right
hand has become lifeless. The Medical Board has
assessed the petitioner's permanent disability at 56%.
On a consideration of the fact that petitioner's left hand
has already been amputated and that he was running a
stationery shop, I hold that his functional disability can
be fixed at 50% based on the ratio laid down in Raj
Kumar v. Ajay Kumar [2011 (1) KLT 620 SC].
MACA No.2531/2012
Future prospects.
17. In Jagdish v. Mohan and others [2018 (4)
SCC 571], followed by Pappu Deo Yadav v. Naresh
Kumar and others [AIR 2020 SC 4424], the
Honourable Supreme Court has categorically held that
in the case of serious injury, the injured claimant is also
entitled to future prospects. Taking into account the
fact that the petitioner was aged 39 years at the time of
the accident, I hold that he is entitled to future
prospects at 40%.
Multiplier
18. As the petitioner was aged 39 years at the time
of the accident, in the light of the law laid down in Sarla
Verma and Others v. Delhi Transport Corporation
and another [(2009) 6 SCC 1211], the relevant
multiplier to be adopted is '15'.
Loss due to disability
19. In view of the above mentioned factors, namely,
MACA No.2531/2012
the monthly income of the petitioner at Rs.3,000/-, his
functional disability at 50%, the multiplier at '15' and
future prospects at 40% , I hold that the petitioner is
entitled for 'loss due to dependency' at Rs.3,78,000/-,
instead of Rs.2,16,000/- awarded by the Tribunal.
Loss of amenities
20. It is seen that the Tribunal has awarded only as
an amount of Rs.10,000/- towards 'loss of amenities'.
Considering the fact that the appellant has a functional
disability of 50%, he was indisposed for a period of six
months, he was treated as inpatient for a period of 22
days, I enhance the compensation for 'loss of amenities'
by a further amount of Rs.40,000/-i.e. an amount of
Rs.50,000/- under the said head.
By-stander expenses
21. The Tribunal has not awarded any amount
under the head 'by-stander expenses'. As the accident
occurred in the year 2006, I hold that the petitioner is
MACA No.2531/2012
entitled for 'by-stander expenses' at Rs.300/- per day for
a period of 22 days, which amounts to Rs.6600/-.
22. With respect to other heads of claim, I find that
the Tribunal has awarded reasonable and just
compensation.
23. On an over all re-appreciation of the pleadings
and materials on record and the law referred to in the
afore-cited 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 Amounts
No awarded (in modified and
rupees) recalculated
by this Court
1 Loss of earnings 0 18000
2 Transportation and clothing 3000 3000
3 By stander expenses 0 6600
4 Medical expenses 6000 6000
5 Pain and sufferings 20000 20000
6 Loss of amenities 10000 50000
7 Loss due to disability 216,000 3,78,000
Total 2,55,000/- 4,81,600
In the result, the appeal is allowed in part, by
MACA No.2531/2012
enhancing the compensation by a further amount of
Rs.2,26,600/- with interest at the rate of 7.5% per
annum from the date of petition till the date of
realisation and a cost of Rs.25,000/-. The
respondent/2nd respondent/insurer is ordered to
deposit the enhanced compensation with interest and
cost before the Tribunal within sixty days from the date
of receipt of a certified copy of the judgment. The
Tribunal shall disburse the enhanced compensation
amount to the appellant/petitioner in accordance with
law.
Sd/-
C.S.DIAS, JUDGE
rmm5/11/2021
