Kerala High Court
Anil Raj vs The Secretary, Palghat District ... on 29 October, 2021
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MACA No.1229 of 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
MACA NO. 1229 OF 2009
AGAINST THE ORDER/JUDGMENT IN OPMV 1211/2006 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD
APPELLANT/S:
ANIL RAJ, S/O.RAJAN
VELLAYAMTHODE HOUSE, KONGADU P.O.,, PALAKKAD
DISTRICT.
BY ADV SRI.V.BINOY RAM
RESPONDENT/S:
1 THE SECRETARY, PALGHAT DISTRICT
AUTORICKSHAW DRIVERS CO-OPERATIVE SOCIETY
LTD,PALAKKAD DISTRICT.(OWNER).
2 RAJESH, S/O.CHAMI NAIR
KONDAYIL HOUSE, CHERAYA, KONGADU,, PALAKKAD
DISTRICT (DRIVER).
3 NATIONAL INSURANCE CO.LTD.
3RD FLOOR, EAST FORT COMPLEX, FORT MAIDAN,,
PALAKKAD.
BY ADVS.
SRI.K.ANAND
SMT.DEEPA GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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MACA No.1229 of 2009
C.S.DIAS, J.
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MACA No.1229 of 2009
======================
Dated this the 29th day of October, 2021.
JUDGMENT
The appellant was the petitioner in OP(MV)
1211/2006 on the file of the Motor Accidents Claims
Tribunal, Ottapalam. 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 6.9.2006. It was his case
that, while he was waiting at the bus stand near Kongad
- Cherupalchery public road, an auto-rickshaw bearing
registration No.KL-9/N 2239 (auto-rickshaw), driven by
the second respondent in a negligent manner, hit the
MACA No.1229 of 2009
appellant. The appellant sustained serious injuries
including fracture of his right leg. He was treated at the
District Hospital, Palakkad and then at the Palana
Institute of Medical Sciences. Thereafter, he was
treated at the West Fort Hospital, Thrissur for a period
of 23 days. The auto-rickshaw was owned by the first
respondent and insured with the third respondent. The
appellant was a Goldsmith by profession and earning a
monthly income of Rs.4,000/-. The appellant claimed a
compensation of Rs.4,80,000/- from the respondents.
3. Another person who got injured in the same
incident filed OP(MV) 1205/2006 before the same
Tribunal.
4. The respondents 1 and 2 did not contest the
proceedings and were set ex parte.
5. The third respondent had filed separate written
statements in the claim petitions denying that there was
MACA No.1229 of 2009
negligence on the part of the second respondent. It was
contended that the accident occurred due to the
negligence of the petitioners in the two claim petitions.
It was also contended that the compensation claimed
was excessive.
6. The Tribunal consolidated and jointly tried the
two claim petitions.
7. The appellant examined the Doctor who issued
the disability certificate and marked Exts A1 to A12 in
evidence. The respondents did not let in any evidence.
8. The Tribunal, after analysing the pleadings and
materials on record, by its common award, allowed the
captioned claim petition, in part, by permitting the
appellant to realise from the third respondent an amount
of Rs.1,81,300/- with interest at the rate of 7% per
annum from the date of petition till the date of
realisation and a cost of Rs.1,500/-.
MACA No.1229 of 2009
9. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in the appeal.
10. Heard; Sri.Binoy Ram V, the learned counsel
appearing for the appellant/petitioner and Smt.Deepa
George, the learned counsel appearing for the third
respondent-insurer.
11. The 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
12. Ext A5 charge-sheet filed by the Police proves
that the accident occurred due to the negligence of the
second respondent. Admittedly, the first respondent was
the owner and the third respondent was the insurer of
the auto-rickshaw. The third respondent admitted that
the auto-rickshaw had a valid insurance coverage and
had not proved that the first respondent violated the
MACA No.1229 of 2009
policy conditions. Therefore, the third respondent is to
indemnify the liability of the first respondent arising out
of the accident.
Notional income
13. The appellant had claimed that he was a
Goldsmith by profession and earning a monthly income
of Rs.4,000/-. However, the Tribunal fixed the notional
monthly income of the appellant at Rs.2,500/-.
14. The Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13
SCC 236] has fixed the notional income of a coolie
worker in the year 2004 at Rs.4,500/- per month.
15. Following the yardstick in the aforecited
decision and considering the fact that the appellant had
claimed a monthly income of Rs.4,000/- in the year 2006,
I fix the monthly income of the appellant at Rs.4,000/-.
MACA No.1229 of 2009
Loss of earnings
16. It is proved and accepted by the Tribunal that
the appellant was incapacitated for a period of four
months due to the fractures that he sustained in the
accident. I confirm the said findings.
17. In view of the refixation of the notional
monthly income of the appellant at Rs.4,000/-, I refix the
compensation under the head 'loss of earnings' at
Rs.16,000/-, instead of Rs.10,000/- awarded by the
Tribunal.
Multiplier
18. Admittedly, the appellant was aged 22 years at
the time of the accident. In the light of the law laid down
in Sarla Verma v. Delhi Transport Corporation
[(2009) 6 SCC 121], the relevant multiplier is '18'.
MACA No.1229 of 2009
Loss due to disability
19. The appellant had produced Ext A11 disability
certificate, which was proved through PW1. PW1 in Ext
A11 certified that the appellant has a permanent
disability of 8% due to the head injury, 4% disability due
to malunion of fibula with pain and 3% disability due to
stiffness of the knee joint and ankle.
20. In Raj Kumar v. Ajay Kumar [2011 (1) KLT
620(SC)], the Hon'ble Supreme Court has held that
what needs to be looked into in a case of injury is the
functional disability of the injured claimant.
21. The appellant had claimed that he was a
Goldsmith by profession. Therefore, only the malunion
of the fibula and stiffness of the knee joint has to be
looked into. Hence, I fix the functional disability of the
appellant, based on Ext A11 read with the oral testimony
of PW1, at 7%.
MACA No.1229 of 2009
22. Taking into account the monthly income of the
appellant at Rs.4,000/-, the multiplier at '18' and his
functional disability at 7%, I refix the compensation for
loss due to disability at Rs.1,00,000/-, instead of
Rs.30,600/- awarded by the Tribunal.
Loss of amenities
23. The appellant had claimed an amount of
Rs.30,000/- for loss of amenities. However, the Tribunal
has not awarded any amount towards compensation for
loss of amenities.
24. In the instant case, the appellant had sustained
fractures and he was treated as an inpatient for a period
of 23 days. He was incapacitated for a period of four
months. He has suffered a functional disability of 7%.
In such circumstances, I hold that the appellant is
entitled for compensation for loss of amenities at
Rs.15,000/-.
MACA No.1229 of 2009
Bystander expenses
25. It is proved that the appellant was treated as
inpatient for a period of 23 days. The Tribunal has
awarded only an amount of Rs.150/- per day for a period
of 23 days, i.e., an amount of Rs.3,450/-, which
according to me is on the lower side.
26. Considering the fact that the accident occurred
in the year 2006, I hold that the appellant is entitled for
an amount of Rs.300/- per day as bystander expenses for
a period of 23 days, i.e., an amount of Rs.6,900/-, viz., a
further enhancement of Rs.3,450/-.
27. I also award an amount of Rs.1,000/- towards
transportation expenses, Rs.500/- towards damage to
clothing and Rs.4,600/- towards extra nourishment
(Rs.200/- per day for a period of 23 days)
Other heads of compensation
28. With respect to other heads of compensation,
MACA No.1229 of 2009
namely, medical expenses and compensation for loss of
pain and sufferings, I find that the Tribunal has
awarded reasonable and just compensation.
29. On a comprehensive re-appreciation of the
pleadings, materials on record and the law referred to in
the afore-cited precedents, I hold that the
appellant/petitioner is entitled for enhancement of
compensation as modified and re-calculated above, and
given in the table below for easy reference.
SI. Head of claim Amount Amounts
No awarded by modified and
the Tribunal recalculated
(in rupees) by this Court
1 Transport to hospital 1,000/-
Damage to clothing 5,000/- 500/-
Extra nourishment 4,600/-
2 Loss of earnings 10,000/- 16,000/-
3 Bystander expenses 3,450/- 6,900/-
4 Medical expenses 1,12,250/- 1,12,250/-
5 Pain and sufferings 20,000/- 20,000/-
6 Loss of amenities Nil 15,000/-
7 Loss due to disability 30,600/- 1,00,000/-
Total 1,81,300/- 2,76,250/-
MACA No.1229 of 2009
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.94,950/- (Rupees Ninety Four Thousand Nine
Hundred and Fifty only) with interest at the rate of 7%
per annum from the date of the claim petition till the
date of realisation, after deducting interest for a period
of 212 days, i.e., the period of delay in filing the appeal
as ordered by this Court on 9.9.2021 in C.M Appln
1/2009, and a cost of Rs.15,000/-. The third respondent
is ordered to deposit the enhanced compensation with
interest and costs before the Tribunal within a period
of sixty days from the date of receipt of a certified copy
of the judgment. The Tribunal shall, immediately on the
compensation being deposited, disburse the same to
the appellant, in accordance with law.
Sd/-
sks/29.10.2021 C.S.DIAS, JUDGE
