Raphael Dominic vs Chenthamarakshan
2022 Latest Caselaw 3762 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
  TUESDAY, THE 29TH DAY OF MARCH 2022 / 8TH CHAITHRA, 1944
                    MACA NO. 2716 OF 2012

AGAINST THE AWARD DATED 28.07.2012 IN OP(MV) NO.1890/2008 OF
          MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/3RD RESPONDENT:

THE UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE NO.3, ERNAKULAM, COCHIN, REPRESENTED BY THE DY. MANAGER, OFFICE OF THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD, ERNAKULAM.

BY ADVS. SRI.M.A.GEORGE SMT.DEEPA GEORGE

RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:

1 REPHEAL DOMENIC, AGED 36 YEARS, S/O.DOMINIC, 403 A(18/1263), PALAKKAL HOUSE, A.K.G.LANE, NAMBIAPURAM, PALLURUTHY, COCHIN, REPRESENTED BY HIS NEXT FRIEND & BROTHER IN LAW K.JEEVARAJ, AGED 46 YEARS, S/O.KUTTAPPAN, MAMOTH HOUSE, SASTHA JUNCTION, PALLURUTHY, COCHIN. 682 020.

    2    K.CHENTHAMARAKSHAN,
         11/358 A, PANKAJ ROAD,
         MARADU.P.O,
         COCHIN. 682 041.

    3    SELJO AUGUSTINE,
         S/O.AUGUSTINE,
         VARANDAYUNIYIL VEETTIL,
 M.A.C.A.Nos.2716/12& 610/13

EAST OF NARASIMHASWAMY TEMPLE, PALAKKATTUMALA KARA, PALA, KOTTAYAM.

                  BY ADVS.    SMT.M.MANJU
                              SRI.K.R.RANJITH
                              SRI.R.SUDHISH

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, ALONG WITH MACA.NO.610/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.2716/12& 610/13

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 29TH DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 MACA NO. 610 OF 2013

AGAINST THE AWARD DATED 28.07.2012 IN OP(MV) NO.1890/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM APPELLANT/PETITIONER:

RAPHAEL DOMINIC, AGED 37 YEARS, S/O.DEMENIC, 403A, (18/1263), PALAKKAL HOUSE, A.K.G.LANE, NAMBIAPURAM, PALLURUTHY, COCHIN - 6.

                  BY ADVS.    SRI.R.SUDHISH
                              SMT.M.MANJU
                              SRI.K.R.RANJITH


RESPONDENTS/RESPONDENTS:

       1          CHENTHAMARAKSHAN,
                  11/358A, PANKAJ VIHAR,
                  AYININADA,
                  KATTITHARA ROAD, MARADU P.O.,
                  COCHIN - 682 304.

       2          SEIJO AUGUSTINE,

S/O.AUGUSTINE, VARANDAYUNIYIL VEETTIL, EAST OF NARASIMHASWAMY TEMPLE, PALAKKATTUMALA KARA, PALA, KOTTAYAM - 686 575.

3 UNITED INDIA INSURANCE COMPANY LIMITED D/O.NO.3, ERNAKULAM, COCHIN - 682 035.

M.A.C.A.Nos.2716/12& 610/13

BY ADVS. SRI.SHIBU JOSEPH SMT.DEEPA GEORGE SRI.P.V.JYOTHI PRASAD SRI.P.VISWANATHAN

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, ALONG WITH MACA.NO.2716/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.2716/12& 610/13

Dated this the 29th day of March,2022

COMMON JUDGMENT

As these appeals arise from the same award in

O.P.(MV)No.1890/2008 on the file of the Motor

Accidents Claims Tribunal, Ernakulam, between the

same parties and by the same Tribunal, they are being

disposed of by this common judgment. The parties are,

for the sake of convenience, referred to as per their

status before the Tribunal.

2. The petitioner had filed the claim petition

under Section 166 of the Motor Vehicles Act, 1988,

claiming compensation on account of the injuries

sustained to him in an accident on 27.05.2007. It was

his case that, on the above said day, while he was

waiting at the bus stop at Aroor Junction along with

his friend 'C.K. Vineeth', a tempo van bearing

registration No. KL-7/AZ-5002(van), driven by the

second respondent in a negligent manner, hit the M.A.C.A.Nos.2716/12& 610/13

petitioner and his friend. Both of them had suffered

multiple injuries and were treated at the Medical Trust

Hospital, Ernakulam. The petitioner was treated as an

inpatient from 28.05.2007 to 01.06.2007 and,

thereafter, at the Medical College Hospital, Kottayam,

from 01.06.2007 to 22.09.2007. The petitioner had

suffered a head injury, fracture of the zygoma and

multiple fracture of his ribs. The petitioner was a

coolie worker by profession and was earning a monthly

income of Rs.7,500/-. The van was owned by the first

respondent and insured with the third respondent.

Hence, he claimed an amount of Rs.29,07,000/- as

compensation from the respondents, which claim was

limited to Rs.20,00,000/-.

3. The other injured in the same accident also

filed O.P.(MV)No.776/2008 before the same Tribunal,

against the respondents, seeking compensation.

4. The respondent Nos.1 and 2 did not contest M.A.C.A.Nos.2716/12& 610/13

both the proceedings and were set ex parte.

5. The third respondent/insurer had filed

separate written statements in both the claim petitions

denying the pleadings in the claim petitions. It was

contended that the accident occurred due to the

negligence of both the petitioners who stood on the

road in violation of the traffic rules. It is also stated

that the first respondent had violated the insurance

policy conditions. Therefore, the third respondent is

not liable to indemnify the liability of the second

respondent arising out of the accident. Hence, the

third respondent may be exonerated of its liability.

6. The Tribunal consolidated and jointly tried

the two claim petitions.

7. The petitioners in the two claim petitions had

produced and marked Exts.A1 to A15 in evidence.

Exts.X1 to X3 were marked as court exhibits.

8. The Tribunal, after analysing the pleadings M.A.C.A.Nos.2716/12& 610/13

and materials on record, allowed the captioned claim

petition in part, by permitting the petitioner to recover

from the third respondent an amount of Rs.9,46,000/-

with interest and proportionate costs.

9. Aggrieved by the impugned award, the third

respondent/insurer has filed M.A.C.A.No.2716/2012

and dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner has filed

M.A.C.A.No.610/2013.

10. Heard; Adv. Smt. Deepa George, the learned

counsel appearing for the appellant/insurer in

M.A.C.A.No.2716/2012 and Adv. Smt. M. Manju, the

learned counsel appearing for the appellant/petitioner

in M.A.C.A. No.610/2013.

11. The common point that emanates for

consideration in the appeals is whether the quantum of

compensation awarded by the Tribunal is reasonable

and just?

M.A.C.A.Nos.2716/12& 610/13

Negligence and liability:

12. Ext.A4 charge sheet filed by the Aroor Police

in Crime No.212/2007 proves that the accident

occurred due to the negligence of the second

respondent. Undisputedly, the first respondent was

the owner and the third respondent was the insurer of

the van. The respondents have not let in any evidence

to discredit Ext.A4 charge sheet. The third respondent

has also not proved that the first respondent had

violated the insurance policy conditions. Therefore, the

third respondent is to indemnify the liability of the first

respondent arising out of the accident.

Income:

13. The petitioner had claimed that he was a

coolie worker by profession and was earning a monthly

income of Rs.7,500/-. Nevertheless, he did not produce

any material to prove his avocation. The Tribunal had M.A.C.A.Nos.2716/12& 610/13

fixed the 'notional monthly income' of the petitioner at

Rs.3,000/-.

14. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited

[(2011) 13 SCC 236], the Hon'ble Supreme Court 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 afore-cited

decision and taking note of the fact that the accident

occurred in the year 2007, I re-fix the notional monthly

income of the petitioner at Rs.6,000/-.

Disability:

16. On an application made by the petitioner, he

was referred to the Medical Board attached to the

Government Medical College Hospital, Kottayam. A

three member Medical Board, as per Ext.X1, assessed

the 'permanent neurological disability' of the

petitioner at 67%. The relevant finding of the M.A.C.A.Nos.2716/12& 610/13

Neurologist attached to the Medical Board is as

follows:

"Present disabilities

1. Bilateral anosmia----------3%

2. Headache, dizziness, emotional out burst and loss of memory for past events ----------7%

3. Right 3rd nerve palsy and diplopia ----------20%

4. Right hemiparesis, power grade 3 to 4, he can rise from sitting position and walk on level in short steps only with support----------30%

5. Incontinence----------7%

Total neurological disability----------67%(sixty seven percentage)"

17. The Tribunal, on the basis of Ext.X1 and

considering the fact that the petitioner was a coolie

worker, fixed the 'functional disability' of the petitioner

at 100%.

18. In Rajkumar v. Ajayakumar [2011(1) KLT

620(SC)], the Honourable Supreme Court has

categorically held that, what needs to be looked into in

an injury claim, is the functional disability of the

injured/claimant.

19. It is an undisputed fact that the petitioner M.A.C.A.Nos.2716/12& 610/13

was a coolie worker by profession.

20. On going through the above extracted portion

of Ext.X1, I find that only the disabilities numbered in

Sl. Nos.3, 4 and 5 have affected the avocation of the

petitioner as manual labourer.

21. Sl.No.3 relates to the right 3rd nerve palsy,

which has led the petitioner to diplopia to the extent of

20%. Nonetheless, the said disability would not affect

the petitioner from carrying on his avocation, but the

disabilities certified at Sl. Nos.4 and 5, would

certainly have a bearing on the petitioner's avocation.

22. On a re-appreciation of Ext.X1 and on a

consideration of the disabilities at Sl. Nos.3 to 5, I am

of the firm view that the petitioner's functional

disability can be fixed at 50%, instead of 100% fixed by

the Tribunal.

Future prospects

23. In V. Mekala v. M.Malathi and another M.A.C.A.Nos.2716/12& 610/13

[(2014) 11 SCC 178], Jagdish v. Mohan and others

[(2018) 4 SCC 571], Pappu Deo Yadav v. Naresh

Kumar & others [AIR 2020 SC 4424] and Anthony

@ Anthony Swamy vs The Managing Director,

K.S.R.T.C [ (2020) 7 SCC 161], the Hon'ble Supreme

Court has repeatedly reminded the Tribunals/Courts

that in a case of serious injury, the injured-claimant is

entitled to future prospects.

24. Following the ratio decidendi in the

afore-cited decisions and considering the 'functional

disability' of the petitioner fixed at 50%. I hold that the

petitioner is entitled to 'future prospects' @ 40%, as

he was aged 32 years at the time of accident.

Multiplier:

25. The petitioner was aged 32 years at the time

of the accident. In the light of the law laid down in

Sarla Verma and others v. Delhi Transport

Corporation and others [(2010) 2 KLT 802 (SC)],the M.A.C.A.Nos.2716/12& 610/13

relevant multiplier to be adopted is '16'.

Loss of earning capacity:

26. Taking into account the above-mentioned

factors i.e., the notional monthly income of the

petitioner at Rs.6,000/-, his functional disability at

50%, the multiplier at '16' and after adding 40%

towards 'future prospects', I hold that the petitioner is

entitled to an amount of Rs.8,06,400/-, towards 'loss

of earning capacity', instead of Rs.5,76,000/- awarded

by the Tribunal.

Loss of earnings:

27. As the Tribunal had fixed the 'functional

disability' of the petitioner at 100%, the Tribunal did

not award any amount under the head 'loss of

earnings'.

28. Taking into account the fact that the accident

occurred on 27.05.2007 and that the claim petition

was filed on 15.09.2008, I hold that the petitioner was M.A.C.A.Nos.2716/12& 610/13

indisposed for a period of 12 months.

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

monthly income of the appellant at Rs.6,000/-, I award

him an amount of Rs.72,000/- under the head 'loss of

earnings'

30. With respect to the other heads of

compensation awarded by the Tribunal, I find the same

to be reasonable and just compensation. Nonetheless,

the amount of Rs.50,000/- awarded by the Tribunal

towards 'future treatment' shall not carry any interest.

31. On an comprehensive re-appreciation of the

pleadings, materials on record and the law referred to

in the afore-cited decisions, I am of the considered

opinion that the appellant in

M.A.C.A.No.610/2013/petioner is entitled to

enhancement of compensation as modified and

re-calculated above and given in the table below for

easy reference.

 M.A.C.A.Nos.2716/12& 610/13






 Sl.No            Head of claim           Amount        Amounts
                                       awarded by the modified and
                                        Tribunal (in  recalculated
                                          rupees)     by this Court
     1       Loss of earnings                       Nil      72,000
     2       Transport expenses                   3,000       3,000
     3       Extra nourishment                   10,000      10,000
     4       Damage to clothes                    1,000       1,000
             and articles
     5       Medical expenses                    56,000      56,000
     6       Bystander expenses                  25,000      25,000
     7       Pain and sufferings                 75,000      75,000
     8       Compensation for                  5,76,000     8,06,400
             continuing and
             permanent
             disability and loss
             of earning power
     9       Future treatment                    50,000      50,000
   10        Compensation for                       Nil          Nil
             short expectation in
             life
   11        Compensation for                    75,000      75,000
             marriage prospects
   12        Compensation for                    75,000      75,000
             loss of amenities
             and enjoyment in
             life
                              TOTAL            9,46,000   12,48,400
 M.A.C.A.Nos.2716/12& 610/13

In the result, the appeals are disposed of by

holding that appellant in

M.A.C.A.No.610/2013/petitioner is entitled to

enhancement of compensation by a further amount of

3,02,400/- out of which only an amount of

Rs.2,52,400/- would carry interest at the rate of 6%

per annum from the date of petition till the date of

deposit, after deducting interest for a period of 111

days (i.e., the period of delay in preferring this appeal

and as ordered by this Court on 25.02.2019 in

C.M.Appln.No.774/2013) and proportionate cost. The

appellant in M.A.C.A.No.2716/2012/third

respondent-insurer is ordered to deposit the enhanced

compensation with interest and costs as ordered above

within a period of sixty days from the date of receipt of

a certified copy of this judgment. Immediately on the

compensation amount being deposited, the Tribunal

shall disburse the deposited amount to the appellant in M.A.C.A.Nos.2716/12& 610/13

M.A.C.A.No.610/2013/petitioner in accordance with

law.

Sd/-

                                       C.S.DIAS,JUDGE

DST/29.03.22                                        //True copy/

                                                   P.A.To Judge