Kerala High Court

Kabeerkutty vs Vijayan Pillai on 25 February, 2025

                                                 2025:KER:18583
MACA NO.51 OF 2016
                                 1

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

         THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

 TUESDAY, THE 25TH DAY OF FEBRUARY 2025 / 6TH PHALGUNA, 1946

                        MACA NO. 51 OF 2016

AGAINST THE ORDER/JUDGMENT DATED 08.10.2015 IN OPMV NO.313 OF

        2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM

APPELLANT/PETITIONER:

          KABEERKUTTY
          AGED 35 YEARS
          S/O. ABDUL RAHIMAN KUNJU, KIZHAKKUM MURI,
          THEKKATHIL, MULLIKKALA MURI, THEVALAKKARA VILLAGE,
          KOLLAM.

          BY ADV SRI.THYPARAMBIL THOMAS THOMAS
RESPONDENTS/RESPONDENTS:

    1     VIJAYAN PILLAI
          S/O. GOVINDANPILLAI, VAZHAPPALLIL-12, KANNIMEL
          CHERRY, MARUTHADY P.O., SAKTHIKULANGARA VILLAGE,
          KOLLAM-691003.

    2     BINU KUMAR
          S/O. NALAN, NALA VILASOM, KANNIMEL CHERRY,
          SAKTHIKULANGARA VILLAGE, KOLLAM-691003.

    3     THE MANAGER
          NATIONAL INSURANCE CO. LTD., PARAMESWARA PILLAI
          BHAVAN, HOSPITAL ROAD, KOLLAM-691001.

          BY ADV C.R.JAYAKUMAR
                                               2025:KER:18583
MACA NO.51 OF 2016
                             2


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.02.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                                 2025:KER:18583
MACA NO.51 OF 2016
                                         3

                               JUDGMENT

The petitioner in O.P.(M.V.) No.313/ 2013 on the file of the Motor

Accident Claims Tribunal, Kollam, is the appellant herein. (For the purpose of

convenience, the parties are hereafter referred to as per their rank before the

Tribunal)

2. The petitioner filed the above O.P. under Section 166 of

the Motor Vehicles Act, 1988, claiming compensation for the injuries

sustained in a motor vehicle accident that occurred on 20.01.2013. According

to the petitioner, on 20.01.2013 at about 4.15 p.m., while he was riding a

motorcycle, an autorickshaw bearing reg.no.KL02/AE 5611 driven by the 2 nd

respondent in a rash and negligent manner, hit on his motorcycle and as a

result of the accident, the petitioner sustained serious injuries.

3. The 1st respondent is the owner, the 2nd respondent is the

driver and 3rd respondent is the insurer of the offending vehicle. According to

the petitioner, the accident occurred due to the negligence of the driver of the

offending vehicle. The quantum of compensation claimed in the O.P. is

Rs.8,00,000/-.

2025:KER:18583 MACA NO.51 OF 2016

4. The insurance company filed a written statement,

admitting the accident as well as policy, but disputing the negligence on the

part of the driver of the offending vehicle.

5. The evidence in the case consists of the oral testimony of

PW1 and documentary evidence Exts.A1 to A14, and C1. No evidence was

adduced by the respondents.

6. After evaluating the evidence on record, the Tribunal

found negligence on the part of the driver of the offending vehicle, awarded a

total compensation of Rs.4,10,776/- and directed the insurer to pay the same.

7. Aggrieved by the quantum of compensation awarded by

the Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is the

following:

Whether the quantum of compensation awarded by the Tribunal is just

and reasonable?

9. Heard Sri.Thyparambil Thomas Thomas, the learned

Counsel appearing for the petitioner/appellant, and Sri.A.A.Muhammed

Nasir, the learned Standing Counsel for the

10. The Point: In this case the accident as well as valid policy 2025:KER:18583 MACA NO.51 OF 2016

of the offending vehicle are admitted. One of the contentions raised by the

learned counsel for the petitioner is regarding the income of the petitioner as

fixed by the Tribunal. According to him, the petitioner was conducting

wholesale business, earning Rs.15000/- per month, but the Tribunal fixed his

monthly income at Rs.4000/-. The learned counsel for the insurer would argue

that the income fixed by the tribunal is reasonable.

11. As per the dictum laid down by the Hon'ble Supreme

Court in the decision in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the notional income of a

coolie, in the year 2013 will come to Rs.9000/-. Since the petitioner could not

prove his job or income as claimed in the OP, in the light of a dictum laid

down in the decision of the Hon'ble Supreme Court in Ramachandrappa

(supra) , his notional income is liable to be fixed as that of a coolie, at

Rs.9000/-.

12. In the accident the petitioner sustained the following

injuries:

1. Fracture on shaft of right femur.

2. Lacerated wound over right partial region.

3. Injury on right knee

4. Injury on left leg below knee 2025:KER:18583 MACA NO.51 OF 2016

5. Injury on right palm

6. Injury on the right feet 7 Pain and injury all over the body

13. Ext.C1 disability certificate shows that the petitioner

suffered 16% permanent physical disability. The Tribunal, has accepted the

permanent physical disability of the petitioner as such and hence, I do not find

any grounds to disbelieve the same. Therefore, the permanent physical

disability of the petitioner is accepted as 16%, as fixed by the Tribunal.

14. On the date of accident, the petitioner was aged 35 years.

Therefore, 40% of the monthly income is to be added towards future

prospects, as held in the decision in National Insurance Co.Ltd v Pranay

Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 16, as held in

Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121. In the

above circumstances, the loss of disability will come to Rs.3,87,072/-.

15. Towards loss of earning, the tribunal has awarded only

Rs.8000/- being the income for 2 months @Rs.4000/- . Considering the nature

of the injuries sustained and the percentage of disability suffered by the

petitioner, the petitioner might have lost income at least for a period of 4

months. Therefore, towards 'loss of income' the petitioner is entitled to get a

sum of Rs. 36000/- (9000x 4 months). Since compensation for disability and 2025:KER:18583 MACA NO.51 OF 2016

loss of earnings were awarded, Rs.40960/- given on the head Compensation

for loss of earning power is not required and hence it will be deducted.

16. Towards the head 'pain and sufferings', the Tribunal has

awarded Rs.25000/-. Towards 'Bystander expenses' Rs.3000/- was awarded

and towards 'extra nourishment' Rs.2250/- was awarded. According to the

learned counsel for the petitioner, the compensation awarded on those heads

are on the lower side.

17. The petitioner sustained very serious injuries in the accident

and was treated as inpatient for 15 days. Because of the injuries sustained, the

percentage of disability suffered and the length of treatment undergone by the

petitioner, I hold that the compensation awarded by the Tribunal on the heads

'pain and sufferings', 'Bystander expenses' and 'extra nourishment' are on the

lower side and hence they are enhanced to Rs.50,000/-, Rs.4500/- and

Rs.5000/- respectively.

18. Towards 'loss of amenities', the tribunal has not awarded any

amount. Hence, considering the facts and circumstances of the case,

Rs.30,000/- is awarded on the aforesaid head.

19. No change is required, in the amounts awarded on other heads,

as the compensation awarded on those heads appears to be just and 2025:KER:18583 MACA NO.51 OF 2016

reasonable.

20. In this case, the Tribunal found that the 2 nd respondent

had no valid driving license on the time of the accident and hence, the 3rd

respondent was permitted to recover the compensation from 1 & 2. Even

before this court, respondents have not produced the driving license of the 2 nd

respondent and as such the permission granted to the 3rd respondent to recover

the compensation from respondents 1 & 2 is liable to be retained.

21. Therefore, the petitioners/appellants are entitled to get a total

compensation of Rs.721258/-, as modified and recalculated above and given

in the table below, for easy reference:

  Sl.             Head of claim               Amount awarded Amount
  No.                                          by the Tribunal modified in
                                                     (Rs)      appeal (Rs.)
 1      Loss of earning                            8000             36000
 2      Transportation charges                     2000              2000
 3      Extra nourishment                          2250              5000
 4      Damage to clothing & articles              1000              1000
 5      Medical expenses                          205686            205686
 6      Pain and suffering                         25000            50000
 7      Loss of disability                        122880            387072
 8      Bystander expenses                         3000              4500
 9      Compensation for loss of earning           40960             Nil
        power
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MACA NO.51 OF 2016


 10    Loss of amenities                           Nil              30000
       Total                                     410776             721258
       Amount enhanced                                 Rs.3,07732

22. In the result, this Appeal is allowed in part, and

Respondent No.3 is directed to deposit a total sum of Rs.721258/- (Rupees

Seven Lakhs Twenty One Thousand Two Hundred and Fifty Eight Only), less

the amount already deposited, if any, along with interest at the rate ordered by

the Tribunal), from the date of the petition till deposit/realisation, with

proportionate costs, within a period of two months from today. (enhanced

compensation will carry interest @8%)

23. On depositing the aforesaid amount, the Tribunal shall

disburse the entire amount to the petitioner, excluding court fee payable, if

any, without delay, as per rules.

24. After making payment to the petitioner, the 3rd respondent

is permitted to recover the compensation from respondents 1 & 2.