Kerala High Court

Velayudhan vs M.R.Rajagurubal & Others on 25 November, 2021

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                       MACA NO. 1973 OF 2006
 AGAINST THE AWARD DATED 27.09.2005 IN OPMV 24/2002 OF MOTOR
           ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA
APPELLANT/PETITIONER:

          VELAYUDHAN, S/O ARUMUGHAM
          ALUVILA PUTHEN VEEDU, KALLAMBALAM,
          BALARAMAPURAM P.O.
          BY ADV SRI.B.JAYASURYA


RESPONDENTS/RESPONDENTS:

    1     M.R.RAJAGURUBAL,
          MAVILA VEEDU, KANJIRAMKULAM P.O.
    2     MADHUKUMAR S/O.NESAMONY
          NEDIYAKADA VEEDU,, KANJIRAMKULAM P.O.
    3     THE MANAGER
          NEW INDIA ASSURANCE CO. LTD.,, SREE HARI BUILDING,
          IIND FLOOR,, BUS STAND, NEYYATTINKARA.
    4     CHANDRASENAN S/O.SOMAN
          PARVANENDU VEEDU, KAVINPURAM,, PANAYARAKUNNU,
          KOTTUKAL,, KATTACHALKUZHI P.O.
          SMT.T.C.SOWMIAVATHY.
     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                             2
MACA No1973-2006




    Dated this the 25th day of November, 2021.

                      JUDGMENT

The appellant was the petitioner in OP(MV)

No.24/2002 on the file of the Motor Accidents Claims

Tribunal, Neyyattinkara. The respondents in the appeal

were the respondents before the Tribunal.

2. The appellant 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 11.11.2001. It was his case

that, on the aforesaid date, while he was walking along

the Thiruvananthapuram - Balaramapuram National

Highway road, a Maruti car bearing registration No.KL

01/M/8769 (car), driven by the 2nd respondent in a rash

MACA No1973-2006

and negligent manner, hit on the back of a scooter

bearing registration No. KL 01 G 4348 (scooter), which

in turn hit the appellant. The appellant sustained

serious injuries, including a fracture of his scapula

right, fracture of the lateral malleolus left and head a

injury. The appellant was treated as an inpatient at the

Medical College, Hospital, Thiruvananthapuram from

11.11.2001 to 21.11.2001 and from 3.12.2001 to

20.12.2001. The car was owned by the 1 st respondent

and insured with the 3rd respondent. The scooter was

owned and driven by the 4th respondent and insured

with the same insurance company - the 3rd respondent.

The appellant claimed that he was a hotel worker by

profession and earning a monthly income of Rs.3000/-.

Hence the appellant claimed from the respondents a

compensation of Rs.3,45,000/-, which claim was limited

to Rs.2,50,000/-

3. The respondents 1 and 2 had filed a joint written

statement refuting the allegations in the claim petition.

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They contended that there was no negligence on the

part of the 2nd respondent. They asserted that the

accident occurred due to the negligence of the 4th

respondent, who hit the appellant from behind.

4. The third respondent had filed a written

statement admitting that both the car and scooter had

valid insurance coverages. However, it was contended

that the compensation claimed by the appellant was

excessive.

5. The fourth respondent had filed a written

statement contending that the accident occurred due to

the negligence of the 2nd respondent. It was also stated

that the 4th respondent had filed O.P.(M.V) No.489/2002,

seeking compensation from the respondents 1 to 3.

Hence, the 4th respondent prayed for exoneration of any

liability.

6. The appellant had examined himself as PW1 and

marked Exhibits A1 to A16 in evidence. The respondents

did not let in any evidence.

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7. The Tribunal, after analysing the pleadings and

materials on record, allowed the claim petition in part,

by permitting the appellant to realise from the 3 rd

respondent an amount of Rs.57,620/- with interest.

8. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner is in appeal.

9. Heard Sri. B.Jayasurya, the learned counsel

appearing for the appellant/petitioner and

Smt.T.C.Sowmiavathy, the learned counsel appearing for

the 3rd respondent/insurer.

10. 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

11. Exhibit A6 charge sheet filed by the

Balaramapuram police in Crime No.380/2001, proves

that the accident occurred due to the negligence of the

2nd respondent. Admittedly, the 1st respondent was the

owner and the 3rd respondent was the insurer of the car.

MACA No1973-2006

The respondents have not let in any evidence to

discredit Exhibit A6 the charge sheet. Similarly, the

third respondent has also not proved that the 1 st

respondent had violated the insurance policy conditions.

Therefore, the 3rd respondent is to indemnify the liability

of the 1st respondent arising out of the accident.

Income

12. The appellant had claimed that he was a hotel

worker by profession and earning monthly income of

Rs.3000/-. For the want of material, the Tribunal fixed

the notional monthly income of the appellant at

Rs.2000/-.

13. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited

[(2011) 13 SCC 236], the Honourable Supreme Court

has fixed the notional income of a coolie worker in the

year 2004 at Rs. 4500/- per month.

14. Following the yardstick in the afore-cited

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decision and considering the fact that the accident

occurred in the year 2001, I fix the notional monthly

income of the appellant at Rs.3000/-.

Disability

15. It is on record, as per Exhibit A2 wound

certificate, that the appellant had sustained a fracture

of his right scapula, fracture of the left lateral malleolus

and a head injury. The Tribunal, on the basis of Exhibit

A2 wound certificate and Exhibit A3 treatment

certificate, fixed the permanent disability of the

appellant at 8%.

16. The appellant has produced before this Court

Exhibit A17 disability certificate, issued by the Assistant

Professor of Orthopedics, Medical College Hospital,

Thiruvananthapuram, certifying that the appellant has

a malunion of the fracture in 100 and 120 angulation of

his left ankle and right shoulder respectively. It is also

stated that the appellant gets recurrent headache and

loss of memory. The appellant also has partial ankylios

MACA No1973-2006

of his left ankle and right shoulder. The Doctor has

assessed and certified that the appellant has a

permanent disability of 12%.

17. In Raj Kumar v. Ajay Kumar [2011 (1) KLT

620 SC], the Honourable supreme Court has held that

what needs to be looked into in a case of injury, is the

functional disability of the injured-claimant.

18. Going by the assessment made by the Doctor in

Exhibit A17, and considering the fact that the appellant

was a hotel worker by profession, I fix the functional

disability of the appellant at 12%.

Multiplier

19. The appellant was aged 55 years at the time of

the accident. Going by the law laid down in Sarla

Verma and Others v. Delhi Transport Corporation

and another[(2009) 6 SCC 121], the relevant

multiplier to be adopted is '11'.

MACA No1973-2006

Loss due to disability

20. Taking into account the above mentioned

factors, namely, the notional monthly income of the

appellant at Rs.3000/-, his functional disability at 12%

and the multiplier at 11, I award the appellant an

amount of Rs.47,520/- towards 'loss due to disability',

instead of 21,120/- awarded by the Tribunal.

Loss of earnings

21. It is proved by Exhibit A2 wound certificate,

Exhibit A3 treatment certificate and Exhibit A17

disability certificate that the appellant had sustained

serious injuries. He was advised ten weeks bed rest as

evidenced by Exhibit A3. The appellant being a hotel

worker, certainly could not have done his work. Thus, I

hold that the appellant was indisposed for a period of six

months.

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

monthly income of the appellant at Rs.3000/-, I award

MACA No1973-2006

him an amount of Rs.18,000/- towards 'loss of earnings'.

By-stander expenses

23. The appellant was treated as an inpatient for

the period from 11.11.2001 to 21.11.2001 and from

3.12.2001 to 20.12.2001 i.e.for a period of 27 days. The

Tribunal has awarded an amount of Rs.250/- towards by-

stander expenses, which is too meagre.

24. Considering the fact that the accident occurred

in the year 2001, and that the appellant was

hospitalised for a period of 27 days, I award him an

amount of Rs.200/- per day for a period of 27 days,

which works out to Rs.7250/-.

25. With respect to other heads of claim, I find that

the Tribunal has awarded reasonable and just

compensation.

26. On a comprehensive re-appreciation of the

pleadings and materials on record and the law referred

to in the afore-cited decisions, I hold that the

appellant/petitioner is entitled for enhancement of

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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                        6000          18000


       3     By stander expenses                     250            7250
       4     Medical expenses                       10000          10000
       5     Pain and sufferings                    12000          12000
       6     Loss of earnings                        7500           7500
       7     Loss due to disability                 21120          47520


             Total                                  57620          103020



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

enhancing the compensation by a further amount of

Rs.45,400/- with interest on the said amount at the

rate of 6% per annum from the date of petition till the

date of realisation, after deducting interest for a period

of 116 days i.e the period of delay and as ordered by

this Court on 15.9.2021 in C.M.Application No.

2075/2006, and a cost of Rs.5000/-. The 3rd respondent

is ordered to deposit the enhanced compensation with

MACA No1973-2006

interest and cost before the Tribunal within sixty days

from the date of receipt of a certified copy of the

judgment. Immediately on the compensation amount