Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946 MACA NO. 362 OF 2014 AGAINST THE AWARD DATED 06.06.2011 IN OPMV NO.846 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI APPELLANT/PETITIONER SAMEER AGED 22 YEARS PUTHUVACHOLA HOUSE, MUNDA P.O., ASSARIPOTTI, EDAKARA, NILAMBUR. BY ADV SRI.BINDU SREEKUMAR RESPONDENTS/RESPONDENTS 1 NAZAR AGED 39 YEARS, S/O.VALIYAKUTTIPPA, KOONAYIL HOUSE, MEERAD, MUTHUVALLOOR, KONDOTTY (OWNER). PIN 673001 2 NOUFAL.C.A. AGED 42 YEARS,S/O.ABDUL AZEEZ, CHERIPARAMBAM HOUSE, PATHIRIPADAM (DRIVER). PIN 673021 3 NEW INDIA ASSURANCE CO.LTD. THAZHEPALAM, TIRUR.-673041 BY ADV RAJAN P.KALIYATH-SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 5th day of March, 2025 The petitioner in O.P.(M.V.) 846/2007 on the file of the Motor Accident Claims Tribunal, Manjeri 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 27.5.2004. According to the petitioner, on 27.5.2004 at about 1 p.m., while he was riding a motor cycle, another motor cycle bearing registration No.KL 10N 439 driven by the 1 st respondent in a rash and negligent manner, knocked him down and as a result of which he sustained serious injuries.
3. The 1st respondent is the driver, the 2 nd 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.3,04,000/- (limited to Rs.3,00,000/-)
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 A6 and X1. No evidence was adduced by the respondents.
6. After evaluating the evidence on record, the Tribunal found 50% contributory . Out of the total compensation of Rs.127669/- assessed, only Rs.63835/- was directed to be paid by the insurer.
7. Aggrieved by the above award of the Tribunal, the petitioner preferred this appeal.
8. Now the points that arise for consideration are the following:
1) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? 2) Whether there was contributory negligence on the part of the petitioner?
9. Heard Smt. Bindu Sreekumar, the learned Counsel appearing for the petitioner/appellant, and Sri.Rajan P. Kaliyath, 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 petitioner as fixed by the Tribunal. According to him, the petitioner was a butcher. The Tribunal fixed his monthly income at Rs.3,000/-.
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 2004 will come to Rs.4500/-.Therefore, the learned counsel prayed for fixing the notional income of the petitioner at Rs.4500/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. Since the notional income of a coolie, in the year 2004 will come to Rs.4500/-, in order to award just and reasonable compensation, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in Ramachandrappa (supra), the notional income of the petitioner is liable to be fixed as that of a coolie, at Rs.4500/-.
12. In the accident the petitioner sustained a lacerated wound on his right hand and his right big toe was amputated exposing the metacarpal bones in the area. He was treated as inpatient for a total period of 40 days.
13. As per Exhibit X1 disability certificate issued by the medical
board, the petitioner suffered 10% 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 10%, as fixed by the Tribunal.
14. On the date of accident, the petitioner was aged 20 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 18, 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.1,36,080/-.
15. Towards loss of earning, the tribunal has awarded only Rs.18,000/-
being the income for 6 months @ Rs.3,000/-. Another Rs.9000/- is awarded towards partial loss of earning. Since the notional income of the petitioner is re-fixed at Rs.4,500/-, towards loss of earning and loss of partial loss of earning, he is entitled to get a sum of Rs.27,000/- (4500x6 months)
16. Towards the head ‘pain and sufferings’, the Tribunal has awarded
Rs.10,000/-. Towards 'loss of amenities of life' Rs.15,000/- was awarded and towards 'bystander expenses' Rs.8,000/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. Towards the head 'extra nourishment' no compensation was awarded by the Tribunal.
17. The petitioner sustained very serious injuries in the accident and
was treated as inpatient for a total period of 40 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 bystander expenses' are on the lower side and hence they are enhanced to
Rs.50,000/-, Rs.30,000/- and Rs.8,000/- respectively. Petitioner is also entitled to get a sum of Rs.5,000/- towards the head 'extra nourishment'.
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. Therefore, the total compensation payable will come to Rs.2,62,949/-
19. The Tribunal found 50% negligence on the part of the petitioner
and 50% on the part of the 2 nd respondent and directed the insurer to pay only 50% of the compensation awarded. I do not find any grounds to interfere with the said finding of the Tribunal. Therefore, the 2 nd respondent is to be directed to pay Rs.1,31,475/- only, being 50% of Rs. 2,62,949/-.
20. Therefore, the petitioner/appellant is entitled to get a total compensation of Rs.131475/-, 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 18,000/- 27,000/-
2 Partial loss of earning 9,000/- Nil
3 Medical expenses 5,019/- 5,019/-
4 Bystander expenses 4,000/- 8,000/-
5 Damage to clothing etc. 250/- 250/-
6 Transportation 1,600/- 1,600/-
7 Extra nourishment Nil 5,000/-
8 Pain and suffering 10,000/- 50,000/-
9 Loss of amenities 15,000/- 30,000/-
10 Compensation for disability 64,800/- 1,36,080/-
Total 1,27,669/- limited to 2,62,949/-limited to
Rs.63835/- Rs.1,31,475/-Enhanced Rs.67640/-
21. In the result, this Appeal is allowed in part, and Respondent No.3
is directed to deposit a total sum of Rs.1,31,475/- (Rupees one lakh thirty one thousand four hundred and seventy five 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, excluding interest for a period of 866 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%).
22. 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. Sd/- C. PRATHEEP KUMAR, JUDGE sou.