Kerala High Court

Thankavelu vs M.Pazhanivel on 6 October, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
   WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                      MACA NO. 1425 OF 2010
    AGAINST THE ORDER/JUDGMENT IN OPMV 1301/2001 OF MOTOR
             ACCIDENT CLAIMS TRIBUNAL , PALAKKAD.
APPELLANT/PETITIONER:

          THANKAVELU
          AGED 24 YEARS
          S/O.SUBBAN,DOOR NO.127, BOOTHI VAZHI, AGALI P.O., PALAKKAD
          DISTRICT.

          BY ADV SRI.A.R.GANGADAS



RESPONDENTS/RESPONDENTS:

    1     M.PAZHANIVEL
          S/O.MARAPPAN,NIT BATA RAILWAY CROSSING, FARIDABAD,,
          ANDRAPRADESH.-500001

    2     [email protected]
          123 C SALEM ROAD,PASUPATHY TRANSPORT, NAMAKKAL
          TAMILNADU.-637001

    3     THE NEW INDIA ASSURANCE CO. LTD.
          NAMAKKAL DIVISION OFFICE, 2 PRAMATYHY ROAD,NAMAKKAL,
          TAMILNADU.-637001

    4     N.SELVI
          WO.NANJAPPAN, 27, SHENNAIMALA KOUNDER STREET,
          PULIAYAPATTI POST, SATHYAMANGALAM TALUK,PERIYAR DISTRICT,
          TAMILNADU.-628306

    5     MAYILSWAMY
          S/O.PONNUSWAMY,THOTTIPPALAYAM, VALIPALAYAM POST,
          DESHAPALAYAM PANCHAYATH, SATHYAMANGALAM TALUK,
          PERIYAR DISTRICT, TAMILNADU.-638401
 MACA No. 1425 OF 2010

                             2




    6      THE ORIENTAL INSURANCE COMPANY LTD.
           INDIA LIFE BUILDINGS, TRICY ROAD, COIMBATORE-,
           641018.

           BY ADV SRI.PMM.NAJEEB KHAN




        THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 MACA No. 1425 OF 2010

                           3


                        JUDGMENT

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

No.1301/2001 on the file of the Motor Accidents

Claims Tribunal,Palakkad. The respondents in the

appeal were the respondents before the Tribunal.

2. The appellant had filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988,

claiming compensation on account of the injuries

that he sustained in an accident that occurred on

7.2.2001. It was his case that, while he was

travelling in a TATA 407 (tempo van) bearing

registration No.TN-36B/6826 from Palakkad to

Coimbatore, when the vehicle reached

Attappallam, a trailer lorry bearing registration

No. HR-29/9647 (lorry) came from the opposite

direction and hit the tempo van in which the MACA No. 1425 OF 2010

appellant was travelling. In the accident, the

appellant sustained grievous injuries and two other

persons lost their lives. The appellant was taken to

the District Hospital, Palakkad and, thereafter, was

referred to the Medical College Hospital,

Coimbatore. His leg was amputated below the

knee. The accident occurred due to the negligence

of the drivers of both the vehicles. The appellant

has become permanently disabled and has lost his

earning power. He is not in a position to do any

work. The lorry was owned by the first respondent,

driven by the second respondent and insured with

the third respondent. The van was owned by the

fourth respondent, driven by the fifth respondent

and owned by the fourth respondent. The

appellant was doing cattle business and earning a

monthly income of Rs.6,000/-. Hence he claimed a

compensation of Rs.7,65,000/- from the

respondents, which was limited to Rs.7,00,000/-. MACA No. 1425 OF 2010

3. The respondents 1,2,4 and 5 did not

contest the proceedings and were set ex-parte.

4. The third respondent had filed a written

statement disputing the age, income and

occupation of the appellant. It was contended that

there was no negligence on the part of the driver

of the lorry, but the accident occurred due to the

negligence of the driver of the tempo van.

5. The sixth respondent had filed a written

statement admitting that the tempo van had a valid

insurance coverage. Nevertheless, it was

contended that the accident occurred due to the

negligence of the second respondent-the driver of

the lorry. Hence it was contended that, only the

respondents 1 to 3 were liable to pay the

compensation.

6. The appellant was examined as PW1 and MACA No. 1425 OF 2010

Exts. A1 to A10 were marked in evidence. The

disability certificate issued by the Medical Board,

District Hospital, Palakkad was marked as Ext.X1.

7. The Tribunal, after analyzing the

pleadings and materials on record, allowed the

claim petition in part, by permitting the appellant

to realise from the third respondent an amount of

Rs.2,29,175/- with interest @ 7.5% p.a., from the

date of petition till the date of payment and cost of

Rs.750/-.

8. Dissatisfied with the quantum of

compensation awarded by the Tribunal, the

petitioner is in appeal.

9. Heard; Sri. A.R.Gangadas, learned

counsel appearing for the appellant/petitioner and

Sri. P.M.M.Najeeb Khan, the learned counsel

appearing for the third respondent-insurer. MACA No. 1425 OF 2010

10. The core question that arises for

consideration in the appeal is whether the

quantum of compensation awarded by the Tribunal

is reasonable and just.

Negligence and liability.

11. It is proved by Ext.A9 final report filed by

the Walayar Police in Crime No.21/2001, that the

accident occurred due to the negligence of the

second respondent. Admittedly, the first

respondent was the owner and third respondent

was the insurer of the lorry. The third respondent

has admitted that the offending lorry had a valid

insurance coverage and has not proved that the

first respondent had violated the insurance policy

conditions. Therefore, the third respondent is

liable to indemnify the first respondent of his

liability to pay the compensation arising out of the

accident.

MACA No. 1425 OF 2010

Notional income.

12. The appellant had claimed that he was

doing cattle business and earning a monthly

income of Rs.6,000/-. He did not produce any

materials to substantiate his income. The Tribunal

fixed the monthly notional income of the appellant

at Rs.3,000/-.

13. In Ramachadrappa V. Manager, Royal

Sundaram Alliance Insurance Co. Ltd. [(2011)

(13) SCC 236], the Hon'ble Supreme Court has

fixed the monthly notional income of a coolie

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

14. Following the yardstick in the aforesaid

decision and considering the fact that the accident

occurred in the year 2001, I do not find any error

in the fixation of the monthly notional income of

the appellant at Rs.3,000/-. Hence, I confirm the MACA No. 1425 OF 2010

monthly notional income of the appellant at

Rs.3,000/-.

Multiplier

15. Admittedly, the appellant was aged 24 years

at the time of the accident. In the light of the law

laid down in Sarla Verma Vs. Delhi Transport

Corporation [(2009) (6) SCC 121], the relevant

multiplier to be adopted is '18', instead of 17

adopted by the Tribunal.

Loss due to disability.

16. Ext.X1 disability certificate issued by the

duly constituted Medical Board proves that the

appellant had sustained a crush injury on his right

leg and his right leg was amputated below the

knee as a result of the accident. The Medical

Board has assessed the appellant's disability at

30%. Later, the District Hospital, Palakkad, by MACA No. 1425 OF 2010

Ext.10 has found that the appellant has a

permanent disability of 40%. However, the

Tribunal has fixed the permanent disability of the

appellant at 30%.

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

(1) KLT 620 (SC)] the Hon'ble Supreme Court

has categorically held that, what needs to be

looked into by the Tribunal, while assessing the

disability of an injured, is the functional disability

of the injured/claimant.

18. Admittedly, in the case at hand, the

appellant's right leg has been amputated below

his knee. He was doing cattle business, which

necessarily needs long time standing and walking.

The District Hospital, by Ext.A10, has certified that

the appellant's permanent disability at 40% and

the Medical Board has certified the disability at

30% in Ext.X1.

MACA No. 1425 OF 2010

19. Taking in to account the assessment of

permanent disability in Exts.X1 and A10, and

considering the avocation of the appellant, I fix his

functional disability at 50%.

20. A three Judge Bench of the Hon'ble

Supreme Court in Jagadish v. Mohan and Others

[(2018 (4) SCC 571)] has held that in the case of

serious disability, wherein the injured is engaged in

manual works, future prospects has to be awarded.

21. As the appellant has been found to be

having 50% functional disability and he was doing

cattle business, I hold that he is entitled to future

prospects at 40%.

22. Taking into account the above mentioned

factors, namely, the monthly income of the

appellant at Rs.3,000/-, his functional disability at

50%, the multiplier at 18 and future prospects at MACA No. 1425 OF 2010

40%, I hold that the appellant is entitled for

compensation for loss due to disability at

Rs.4,53,600/-, instead of Rs.1,83,600/- awarded by

the Tribunal.

Loss of earnings.

23. The appellant had undisputedly

sustained a crush injury on his right leg, and his

right leg had to be amputated below his knee. He

had claimed loss of earnings for a period six

months. However, the Tribunal awarded loss of

earnings only for a period of three months, which

according to me is on a lower side.

24. I hold that the appellant was indisposed

for a period of six months. Therefore, I award the

appellant an amount of Rs.18,000/-, towards loss

of earnings, instead of Rs.9,000/- awarded by the

Tribunal.

MACA No. 1425 OF 2010

Loss of amenities.

25. The appellant had claimed an amount of

Rs.1,00,000/- towards loss of amenities. The

Tribunal has not award any amount under the said

head, which according to me is erroneous.

26. As the appellant has a functional

disability of 50%, he has indisposed for a period of

six months and he was treated as inpatient for a

period of 45 days, I hold that he is entitled for a

compensation of Rs.50,000/- under the head loss of

amenities.

27. With respect to the other heads of

compensation, I find that the Tribunal has awarded

reasonable and just compensation.

28. On an over all re-appreciation of

pleadings, materials on record, and the law laid

down in the afore cited decisions, I hold that the MACA No. 1425 OF 2010

appellant/petitioner is entitled for enhancement of

compensation as modified and recalculated above

given in the table below for easy reference.

Sl.No. Name of Heads Amount Amount (Rs.) (Rs.)

1. Loss of earnings 9,000/- 18000/-

2. Transportaion 1,875/- 1875/-

3. By-stander expenses 4,600/- 4,600/-

4.       Clothing                        5,00/-           5,00/-

5.       Extra Nourishment              4,600/-          4,600/-

6.       Pain and sufferings          25,000/-          25,000/-

7.       Loss of amenities                 NIL          50,000/-

8.       Loss due to disability      1,83,600/-       4,53,600/-

         Total                       2,29,175/-       5,58,175/-

In the result, the appeal is allowed by

enhancing the compensation by a further amount

of Rs.3,29,900/- with interest @ 7.5% p.a on the MACA No. 1425 OF 2010

enhanced compensation from the date of petition

till the date of realisation, after deducting interest

for a period of 153 days as ordered by this Court

on 14.9.2021 in C.M.Application 2/2010, and a cost

of Rs.4,000/-. The third respondent/insurer is

directed 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 this judgment. The Tribunal shall disburse