Kerala High Court
N.K Manojan vs Sindhu 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. 4181 OF 2018
AGAINST THE AWARD DATED 19.7.2018 PASSED IN OP(MV)NO. 449/2016 ON THE
FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA
APPELLANT/PETITIONER:
N.K MANOJAN, AGED 44 YEARS,
S/O. KUNHIKRISHNAN NAIR, NEETHUVAYALKUNI HOUSE,
KURUVANGAD P.O., QUILANDY TALUK, KOZHIKODE DISTRICT,
PIN - 673620.
BY ADVS.
ABU MATHEW
AJU MATHEW
RESPONDENTS/RESPONDENTS:
1 SINDHU,AGED 52 YEARS, W/O. BHARATHAN, THOTTUMUKHATH
HOUSE, GURUKULAM, QUILANDY P.O., KOZHIKODE DISTRICT, PIN
- 673305.
2 S. BHARATH ANAND,
AGED 30 YEARS, S/O. BHARATHAN D.K., 5/731, THOTTUMUKHATH
HOUSE, GURUKULAM, QUILANDY P.O., KOZHIKODE DISTRICT, PIN
- 673305.
3 UNITED INDIA INSURANCE CO. LTD.
HAPPY TOWER, EAST ROAD, KOYILANDY, KOZHIKODE DISTRICT,
PIN - 673305, REPRESENTED BY ITS AUTHORIZED
REPRESENTATIVE.
BY ADV SMT.PREETHY R. NAIR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 4181 OF 2018 2
JUDGMENT
The appellant is the petitioner in OP(MV) No.449 of 2016 on the file of
the Motor Accidents Claims Tribunal, Vatakara. The respondents are the
respondents before the Tribunal.
2. The short facts relevant for the determination of this appeal are as
follows: On 14.02.2016, while the appellant was riding a scooter bearing
Reg. No.KL-56-D-7642 towards Kuruvangadu and when he reached Anela
Road near Jubilee Club, a motorcycle bearing Reg.No.KL-56 A-3548 driven
by the 2nd respondent came from the opposite direction in a rash and
negligent manner and hit the scooter ridden by the appellant. In the said
accident, the appellant sustained serious injuries and he was immediately
taken to Government Hospital, Koyilandy. As the injuries were serious, the
appellant was referred to the Medical College Hospital, Kozhikode, and was
treated as an inpatient from 14.2.2016 to 16.2.2016. The appellant was aged
42 years at the time of the accident and was a Coolie, earning Rs.25,000/-
per month. Motorcycle bearing Reg.No.KL-56A-3548 was insured with the
3rd respondent and the appellant had claimed a total compensation of
Rs.10,00,000/- from the respondents.
3. Respondents 1 and 2 who are the owner and driver 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 A10 as evidence
before the Tribunal and the certificate of permanent disability was marked as
Ext.C1.
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.1,48,300/- with 9% interest per annum
and proportionate costs from the date of petition till the date of deposit. 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. Abu Mathew, the learned counsel appearing for the
appellant and also Smt.Preethy 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.190/2016 of Koyilandy
Police Station registered against the 2nd respondent herein and Ext.A5 is the
final report in the above said crime. Exts.A1 and A5 prove that the accident
was solely on account of the negligence on the part of the 2nd respondent,
who was riding the offending motorcycle bearing Reg.No. KL 56-A-3548.
Admittedly, the 1st 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 1st respondent.
10. The appellant had claimed that he is a Coolie worker, aged 43, and
was having a monthly income of Rs.25,000/-. The Tribunal fixed the notional
income of the appellant at Rs.7,000/- and the appellant claimed that the
Tribunal went wrong in fixing Rs.7,000/- as his notional income.
11. In Ramachandrappa vs. Manager, Royal Sundaram Alliance
Insurance Company Ltd [(2011) 13 SCC 236] the Apex Court has fixed the
notional income of a Coolie worker in the year 2004 at Rs.4,500/- per month.
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 unorganised sector. This Court in Soman v. Jinesh James
and Others [ 2020 (4) KLT Online 1033] has held that with respect to an
unspecified job of a coolie considering the increase in the cost of living and
economic advancements over the years, it can be safely assumed that even
a coolie would be eligible for incremental addition of at least Rs.500/- in
every subsequent year. Following the ratio of the aforesaid decisions and
taking note of the fact that the accident occurred in the year 2016, the
appellant's counsel contended that the Tribunal went wrong in fixing the
notional income of the appellant at Rs.7000/- per month. Taking into
consideration the decisions as referred above, the notional income of the
appellant is fixed as Rs. 10,500 per month.
12. Under the head Loss of Earnings from 14.2.2016 to 14.2.2017 a
total amount of Rs.3,50,000/- was claimed and an amount of Rs.42,000/-
was allowed by the Tribunal on finding that there is loss of income for six
months and by fixing the notional income per month at Rs.7,000/-. Due to the
enhancement of notional income at Rs.10,500/- by this Court, the amount
due to the appellant under the head of Loss of Earnings is fixed at
Rs.63,000/- (10500 x 6) instead of Rs.42,000/- awarded by the Tribunal.
13. The appellant further contended that even though an amount of
Rs. 50,000/- was claimed towards Extra Nourishment and Bystanders
Expenses, only Rs. 7300/- was awarded. Taking into consideration the
nature of the injuries and the fact that he was treated as an inpatient, I feel
that an amount of Rs. 10000/- could be fixed in the place of Rs. 7300/- fixed
by the Tribunal.
14. Even though the appellant had claimed Rs.3,00,000/- as
compensation for permanent disability, the Tribunal granted only Rs.23,520/-
under this head. The appellant was examined by the Medical Board attached
to the Government District Hospital, Vatakara, and the report by the Medical
Board is marked as Ext.C1 before the Tribunal. As per C1 report, the
petitioner had sustained partial ankylosis knee due to tibial condyle fracture
and the board assessed his permanent disability at 2%. Considering the age
of the appellant, which was 42 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 14.
Since the notional income has been increased by this Court from Rs.7,000/-
to 10,500/-, the appellant is entitled to a total amount of Rs.35,280/- (Rs.
10,500 x 12 x 14 x 2/100) as compensation for permanent disability instead
of Rs.23,520/- 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 aforesaid decisions, I hold 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 increase
Amount
modified and as per the
awarded by the
Head of Claim recalculated by recalculation by
Tribunal
this Court this Court
(Rs.)
(Rs.) (Rs.)
Loss of earning 42,000/- 63,000/- 21,000/-
Transport to hospital 3,000/- 3,000/- -------
Extra nourishment &
7,300/- 10,000/- 2,700/-
bystander expenses
Medical expenses 6,429/- 6,429/- -------
Damage to clothing 1,000/- 1,000/- -------
Pain & suffering 40,000/- 40,000/- -------
Loss of amenities 25,000/- 25,000/- -------
Permanent disability 23,520/- 35,280/- 11,760/-
1,48,249/-
Total (Rounded to 1,83,709/- 35,460/-
Rs. 1,48,300/-)
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.35,460/-
with interest at the rate of 9% per annum on the compensation 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
