Kerala High Court

K.J.Joseph vs Shinoj on 4 March, 2025

                                                 2025:KER:23433
MACA NO.441 OF 2016
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             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

           THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

  TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946

                       MACA NO. 441 OF 2016

AGAINST THE ORDER/JUDGMENT DATED 27.10.2015 IN OPMV NO.338 OF

        2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM

APPELLANT/PETITIONER:

            K.J.JOSEPH
            AGED 60 YEARS
            S/O.JOSEPH, KALLUKUSHIYIL HOUSE,M ATHEKKAD DESOM,
            KOLAZHY P.O., THRISSUR DISTRICT-680 010.

            BY ADV SRI.SHEJI P.ABRAHAM
RESPONDENTS/RESPONDENTS:

    1       SHINOJ
            PONMATT HOUSE, CHAZHOOR DESOM P.O., THRISSUR
            DISTRICT, PIN-680 571 (DRIVER OF KL-8Z 538 AUTO
            RICKSHAW).

    2       SHIBU M.S.
            S/O.MANI, NADUVATH HOUSE, CHOOLISSERY DESOM P.O.,
            THRISSUR, PIN-680 541.(OWNER OF KL-8Z 538 AUTO
            RICKSHAW).

    3       RELIANCE GENERAL INSURACNE COMPANY LTD
            BRANCH OFFICE, OPP.KPT HIGH SCHOOL, T.S.ROAD,
            OTTAPALAM-679 101.



            BY ADV SRI.K.B.RAMANAND
                                                          2025:KER:23433
MACA NO.441 OF 2016
                                   2


THIS   MOTOR   ACCIDENT   CLAIMS       APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 04.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                               2025:KER:23433
MACA NO.441 OF 2016
                                        3

                               JUDGMENT

The petitioner in O.P.(M.V.) No.338/2014 on the file of the Motor

Accident Claims Tribunal, Ottapalam, 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 18.03.2014. According to the

petitioner, on 18.03.2014 at about 6.45 a.m., while he was riding pillion on a

motorcycle, an autorickshaw bearing reg.no.KL-08-AZ 538 driven by the 1 st

respondent in a rash and negligent manner and in overspeed dashed against

the motorcycle and as a result of which, the petitioner fell down and sustained

injuries.

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

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.3,70,000/- limited to Rs.2,00,000/-.

2025:KER:23433 MACA NO.441 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 documentary evidence

Exts.A1 to A11. 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.95940/- 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.Sheji P. Abraham, the learned Counsel appearing for

the petitioner/appellant, and Sri.K.B. Ramanand, the learned Standing

Counsel for the 3rd respondent.

10. The Point: In this case the accident as well as valid

insurance policy of the offending vehicle are admitted. One of the contentions

raised by the learned counsel for the petitioner is regarding the income of the 2025:KER:23433 MACA NO.441 OF 2016

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

working as coolie, earning Rs.10000/- per month, but the Tribunal fixed his

monthly income at Rs.6000/-. 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 2014 will come to Rs.9500/-. 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.9500/-.

12. In the accident the petitioner sustained the following injuries:

• Fracture Inferior public ramus and Anterior column of

acetabulam on (R) side.

13. As per Exhibit A7 disability certificate the petitioner

suffered 13.14% on the particular limb and 5.91% as whole body disability.

However the Tribunal has not accepted the disability as the doctor who issued 2025:KER:23433 MACA NO.441 OF 2016

Ext.A7 was not examined. It appears that Ext.A7 was marked without

objection. As argued by the learned counsel for the petitioner, if the Tribunal

was not satisfied with the disability certificate produced, the Tribunal ought to

have referred him to a medical board. (See Manikantan G. v. Janardhanan

Nair and Others, 2021 (5)KHC 305). Having not done so, the Tribunal was

not justified in rejecting the percentage of disability from what is shown in the

disability certificate. I do not find any grounds to disbelieve the said disability

certificate and as such the permanent physical disability of the petitioner is

fixed as 5.91%.

14. On the date of accident, the petitioner was aged 59 years.

Therefore, 10% 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 9, 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.66700/-.

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

Rs.24000/- being the income for 4 months @Rs.6000/-. Considering the

nature of the injuries sustained and the percentage of disability suffered by the 2025:KER:23433 MACA NO.441 OF 2016

petitioner, the petitioner might have lost income at least for a period of 6

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

sum of Rs.57000/- (9500 x 6 months).

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

awarded Rs.25000/-. Towards 'loss of amenities of life' Rs.12500/- was

awarded and towards 'extra nourishment' Rs.600/- 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 serious injuries in the accident and was

treated as inpatient for 4 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', 'loss of amenities of life' and 'extra nourishment' are on

the lower side and hence they are enhanced to Rs.50000/-, Rs.30000/- and

Rs.5000/- respectively.

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

as the compensation awarded on those heads appears to be just and

reasonable.

19. Therefore, the petitioner/appellant is entitled to get a total 2025:KER:23433 MACA NO.441 OF 2016

compensation of Rs.2,42,540/-, as modified and recalculated above and given

in the table below, for easy reference:

Sl.

  No.            Head of Claim            Amount awarded by     Amount Awarded in
                                           Tribunal (in Rs.)      Appeal (in Rs.)
   1    Loss of earning                         24000                 57000
   2    Transport to hospital                   3000                   3000
   3    Extra nourishment                        600                   5000
   4    Damage to clothing and articles         1000                   1000
   5    Medical expense                         29240                 29240

   7    Pain and suffering                      25000                 50000
   8    Loss of disability                       Nil                  66700
   9    Loss of amenities                       12500                 30000


        Total                                   95940                 242540
        Enhanced Rs.                                       146600

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

No.3 is directed to deposit a total sum of Rs.2,42,540/- (Rupees Two Lakhs

Forty Two Thousand Five Hundred and Forty 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%)

On depositing the aforesaid amount, the Tribunal shall disburse the 2025:KER:23433 MACA NO.441 OF 2016

entire amount to the petitioner, excluding court fee payable, if any, without

delay, as per rules.

Sd/-

C. PRATHEEP KUMAR, JUDGE Pvv