Kerala High Court
Roy vs Jayamon on 27 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
SATURDAY, THE 27TH DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA, 1943
MACA NO. 3477 OF 2020
AGAINST THE AWARD DATED 19.2.2020 IN OP(MV)NO.988/2017 OF THE MOTOR
ACCIDENTS CLAIMS TRIBUNAL, PALA
APPELLANT/PETITIONER:
ROY,AGED 39 YEARS,
S/O. JOSEPH, KUMARIYARUPARAMBIL HOUSE, NARIYANANI P.O,
PONKUNNAM, CHITHRAKADAVU VILLAGE, KOTTAYAM DISTRICT, PIN-
686 506
BY ADV P.C.HARIDAS
RESPONDENTS/RESPONDENTS:
1 JAYAMON,
S/O. MANI, KALAYATH HOUSE, KEERIKKARA, VANDIPERIYAR P.O,
IDUKKI DISTRICT, PIN-685 533
2 ANANDHAKUMARI,
W/O. KRISHNANKUTTY, BINEESH BHAVANAM, PAZHANIYOORKONAM,
PADANILAM, PATTOOR P.O, MAVELIKKARA, ALAPPUZHA DISTRICT,
PIN-6901001
3 UNITED INDIA INSURANCE COMPANY LIMITED,
MULAMOOTTIL DIAMOND TOWER, MC ROAD, PANDALAM,
PATHANAMTHITTA DISTRICT, PIN-689 501, REPRESENTED BY ITS
MANAGER.
BY ADV SMT.PREETHY R. NAIR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 3477 OF 2020 2
JUDGMENT
The appellant is the petitioner in OP(MV) No.988 of 2017 on the
file of the Motor Accidents Claims Tribunal, Pala. The respondents are
the respondents before the Tribunal.
2. The short facts relevant for the determination of this appeal
are as follows: The accident occurred on 14.08.2017 at about 7:15 am
near Attickal Kavala, Ponkunnam on Pala-Ponkunnam road. When the
appellant was driving his autorickshaw bearing Reg. No. KL-34-5597
through the said road he was struck down by a Tata Sumo bearing Reg.
No. KL-31-3783 driven by the 1st respondent which came from the
opposite side and hit on the autorickshaw. The accident occurred due
to rash and negligent driving by the 1st respondent. The appellant was
admitted to General Hospital, Kanjirapally, and underwent treatment
for the period from 14.08.2017 to 21.08.2017. The injuries sustained by
the appellant includes fracture DCR (distal end radius), multiple
abrasions on the face (right), sutured wound lower lip, 4 x 4 cm
abrasion of the medial part of (left) knee, 4 x 4 cm abrasion over (right)
maxillary area, wounds over lower and upper lips, lacerated wounds
lateral nose, ring finger etc and multiple abrasions on face (right).
Even after discharge from the hospital, he continued the treatment for
a long as an outpatient. The appellant was aged 35 years at the time of
the accident. He was an autorickshaw driver earning Rs.15,000/- per
month. The offending vehicle bearing Reg. No. KL-31-3783 was owned
by the 2nd respondent and was insured with the 3rd respondent. The
appellant claimed a total compensation of Rs. 3,20,000/- from the
respondents.
3. Respondents 1 and 2 who are the driver and owner of the
offending vehicle did not contest the matter before the Tribunal and
they were set ex parte. The 3rd respondent insurance company filed a
written statement, admitting the insurance policy of the offending
vehicle at the relevant time of the accident.
4. The appellant produced and marked Exts.A1 to A13 before the
Tribunal to prove his case. Ext B1 and B2 were marked from the side of
the respondents.
5. The Tribunal after analysing the pleadings and materials on
record, by the impugned award allowed the claim petition in part,
permitting the appellant to realise an amount of Rs. 1,75,407/- with 8%
interest per annum with proportionate cost from the date of petition
till the date of realisation. The 3rd respondent was directed to satisfy
the award.
6. Dissatisfied with the quantum of compensation awarded by the
Tribunal, the present appeal is filed.
7. Heard, Shri. P.C. Haridas, the learned counsel appearing for
the appellant and also Smt. Preethi R. Nair, the learned Standing
Counsel appearing for the 3rd respondent Insurance Company.
8. The sole question that arises for consideration is whether the
quantum of compensation awarded by the Tribunal is reasonable and
just.
9. Ext.A1 is a copy of the FIR in Crime No.1195/2017 of
Ponkunnam Police Station registered against the 1st respondent herein
and Ext.A5 is the final report in the above said crime. Ext.A1 and A5
documents will show that there is negligence on the part of the 1st
respondent, who was riding the offending vehicle bearing Reg. No. KL-
31-3783.
10. Admittedly, the 2nd respondent is the owner and the 3rd
respondent is the insurer of the offending vehicle. Therefore, the 3rd
respondent is bound to indemnify the liability of the 2nd respondent.
11. The appellant claimed that he is an autorickshaw driver and is
aged 35 at the time of the accident and that he was having a monthly
income of Rs.15,000/-. The Tribunal fixed the notional income of the
appellant at Rs.10,000/- and the appellant claimed that the Tribunal
went wrong in fixing Rs.10,000/- as notional income. The reasoning of
the Tribunal for fixing the said amount as notional income is that there
is no strict proof regarding the fact that the appellant is an
autorickshaw driver. In Ext A1 FIR and A5 Final Report, it is the
specific case that the appellant was driving an autorickshaw at the time
of the accident. The driving license of the appellant was also produced
before the Tribunal as Exhibit A12. These documents produced by the
appellant will show that the appellant was an auto driver.
12. I feel the notional income fixed by the Tribunal cannot be
accepted in as much as even in the case of Coolie worker the Apex
Court in Ramachandrappa vs. Manager, Royal Sundaram
Alliance Insurance Company Ltd [(2011) 13 SCC236] has fixed
the notional income at Rs.4,500/- per month in the year 2004. The
Apex Court in National Insurance Co. Ltd. v. Pranay Sethi and
Others, (2017) 16 SCC 680 has also recognized the principle that
there would be an incremental enhancement in the case of even self-
employed individuals in the unorganized sector. Even going by the
dictum laid down by the aforesaid decisions, notional income for even
a coolie worker will be Rs. 11,000/- per month. Taking into
consideration the fact that the appellant was an autorickshaw driver
and also the decisions referred above, I deem it appropriate to fix the
notional income of the appellant at Rs. 12,500/- per month as against
Rs. 10,000/- fixed by the Tribunal.
13. Under the head loss of earnings for 3 months, a total amount
of Rs.75000/- was claimed and an amount of Rs.30000/- (10000 x 3)
was allowed by the Tribunal on finding that there is loss of income for
3 months and by fixing the notional income per month at Rs.10,000/-.
Due to the enhancement of notional income to Rs.12,500/- by this
court, the amount due to the appellant under the head loss of earnings
is fixed at Rs.37500/-(12500 x 3) instead of Rs.30,000/- awarded by
the Tribunal.
14. Even though the appellant had claimed Rs.2,16,000/- as
compensation for permanent disability, the Tribunal granted only
Rs.76,800/- (10000 x 12 x 16 x 4/100 ) under this head. Exhibit A11 is
the Disability Certificate certifying that he is suffering 8% total
disability with partial ankylosis left wrist, range of motion limited to 70
degree dorsiflexion, 60 degree palmar flexion, 20 degree ulnar
deviation and 15 degree radial deviation also rotations limited from full
pronation to 50 degree supination. Though in Exhibit A11 the
disability is fixed at 8%, the Tribunal fixed the disability at 4%. The
appellant is an auto driver and the disability found in Exhibit A11
Disability Certificate is 8%, which is mainly to the left wrist and I feel
this will definitely affect his avocation as a driver. Therefore, I am of
the opinion that the Tribunal went wrong in reducing the percentage of
disability at 4% without any materials to support the same and
therefore the disability of 8% certified in Exhibit A11 Disability
Certificate could be taken into consideration for arriving at the
compensation amount due to the appellant. Considering the age of the
appellant, which was 35 years at the time of the accident and in view of
the judgment in Sarla Verma vs. Delhi Transport Corporation
[(2010 (2) KLT 802] the Tribunal has correctly adopted the proper
multiplier of 16. Since notional income has been increased by this
Court from Rs.10,000/- to Rs. 12,500/-, and the disability has been
fixed at 8%, the appellant is entitled to a total amount of Rs.1,92,000/-
(12500 x 12 x 16 x 8/100) as compensation for permanent disability
instead of Rs. 76,800/-fixed by the Tribunal.
15. With respect to compensation awarded under other various
heads, I find that the Tribunal has awarded reasonable and just
compensation.
16. On an overall re-appreciation of the pleadings and materials
on record and the law laid down in the decisions cited supra, I am of
the firm opinion that the appellant is entitled to enhancement of
compensation as modified and recalculated above and as given in the
table below for easy reference.
Amounts
Actual
modified
Amount increase as
and
awarded by per the
Head of Claim recalculated
the Tribunal recalculation
by this
(Rs.) by this Court
Court
(Rs.)
(Rs.)
Loss of earning 30000/- 37500/- 7500/-
Transport to
3800/- 3,800/-- -------
hospital
Extra nourishment 1000/- 1000/- ......
Damage to clothing 1000/- 1000/- -------
Medical expenses 307/- 307/- -------
Bystander expenses 2500/- 2500/- -------
Pain and suffering 40,000/- 40,000/- -------
Compensation for 76,800 1,92,000/- 1,15,200
disability
Compensation for
20000/- 20,000/- -----
loss of amenities
Total 1,75,407 2,98,107- 1,22,700
In the result, the appeal is allowed in part, by modifying the
order of the Tribunal and enhancing the compensation by a further
amount of Rs.1,22,700/- with interest at the rate of 8% per annum
from the date of petition till the date of realisation with proportionate
costs. The 3rd respondent shall deposit the additional compensation
amount awarded in the appeal before the Tribunal with interest and
costs within a period of two months from the date of receipt of a
certified copy of this judgment. The Tribunal shall disburse the
compensation to the appellant/petitioner in accordance with the law.
Sd/-
VIJU ABRAHAM
JUDGE
pm
