Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946 MACA NO. 1130 OF 2014 AGAINST THE AWARD DATED 07.02.2014 IN OPMV NO.1087 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI APPELLANT: JABIR S/O HUSSAIN, OTTATHENGAN HOUSE, EDARIKKODE, MALAPPURAM DISTRICT. BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENTS: 1 SANISH KUMAR S/O VASU, SUMATHI NIVAS, VARIKKAMKUNNU, THALAYOLAPARAMBU P.O., KOTTAYAM DISTRICT 2 MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM 3 THE NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, NILAMBUR ROAD, MANJERI, MALAPPURAM DISTRICT, PIN - 676 121. BY ADVS. SRI.SEBASTIAN VARGHESE(K/141/2000) MACA NO. 1130 OF 2014 2 SRI. C.K SURESH - SC SRI.ALEX ANTONY SEBASTIAN P.A.-SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1130 OF 2014 3
JUDGMENT
Dated this the 27th day of February, 2025 The petitioner in O.P.(M.V.) No.1087/2009 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 07.05.2009. According to the petitioner, on 07.05.2009 at about 1.30 p.m., while he was riding a motorcycle, he was knocked down by a K.S.R.T.C bus bearing Reg.No.KL 15 6319 driven by the 1st respondent in a rash and negligent manner. As a result of the accident, the petitioner sustained serious 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.5,00,000/-
4. The insurance company filed a written statement, admitting the MACA NO. 1130 OF 2014 4 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 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.3,60,000/- and directed the insurer to pay the 75% of the award amount as there was contributory negligence on part of petitioner.
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.Babu S. Nair, the learned Counsel appearing for the
petitioner/appellant, and Sri.Alex Antony Sebastian, the learned Standing Counsel for the 2nd respondent and Sri. C.K Suresh, 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 MACA NO. 1130 OF 2014 5
the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as Coolie, earning Rs.6000/- per month, but the Tribunal fixed his monthly income at Rs.3000/-.
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 2009 will come to Rs.7,000/-.Therefore, the learned counsel prayed for fixing the notional income of the petitioner at Rs.7,000/- and as such his notional could not fix below that of a coolie. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable.
12. The learned counsel for the 3rd respondent would argue that, the
petitioner claimed an income of Rs. 6000/- alone and hence his notional income cannot be fixed over and above that of a coolie. The law is well settled that, this Court has got, not only the authority but also the duty to award just and reasonable compensation to victims of motor vehicle accidents. For that purpose, in deserving cases, even the notional income of the victim can be fixed over and above what is claimed in the original petition. (Sasidharan Namboothiri and Others v. Rajeev Kesavan and
MACA NO. 1130 OF 2014 6
Others, [2025 KHC OnLine 85]. Since the notional income of a coolie, in the year 2009 will come to Rs.7000/-, 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.7000/-.
13. In the accident the petitioner sustained the following injuries:
1. Head injury. 2. Fracture left occipital bone. 3. Fracture left carotid canal. 4. Diffuse cerebral edema
5. Fracture left wrist (radius) 6. Communited fracture
(R) femur shaft. 7. Bony avulsion fracture PCL (Rt) 8. Injuries all over the body
14. Ext. C1 disability certificate shows that the petitioner suffered
32% permanent physical disability. It was issued by the medical board. The Tribunal, however, scaled down the percentage of disability of the petitioner to 25%, without assigning valid and cogent reasons. The law is settled that, if the Tribunal is not satisfied with the disability certificate produced by the petitioner, the remedy is to refer him to a medical board or higher Authority. (See Manikantan G. v. Janardhanan Nair and Others, 2021 (5)KHC 305). Having not done so, the Tribunal was not justified in scaling down the percentage of disability from what is shown in the disability certificate. I do
MACA NO. 1130 OF 2014 7 find any grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 32%.
15. On the date of accident, the petitioner was aged 18 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.677,376/-
16. Towards loss of earning, the tribunal has awarded only
Rs.6,000/- being the income for 2 months @Rs.3,000/-. 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 8 months. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs. 56,000/- (7000 x 8 months).
17. Towards the head ‘pain and sufferings’, the Tribunal has
awarded Rs.15,000/-. Towards 'extra nourishment’ Rs.3,000/- was awarded , ‘bystander expenses’ Rs.4,500 was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. The Tribunal has not awarded any amount on the head ‘loss of MACA NO. 1130 OF 2014 8 amenities of life'.
18. The petitioner sustained serious injuries in the accident and was
treated as inpatient for 29 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’, extra nourishment', and ‘bystander expenses’ are on the lower side and hence they are enhanced to Rs.75,000/-,6,000/-6,000/-and towards 'loss of amenities of life' Rs.50,000/- is awarded.
19. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable.
20. Therefore, the petitioners/appellants are entitled to get a total
compensation of Rs.10,84,876/-, as modified and recalculated above and given in the table below, for easy reference: Sl. No. Head of Claim Amount awarded by Amount Awarded Tribunal (in Rs.) in Appeal (in Rs.) 1 Loss of earning Rs.6,000/- Rs.56,000/- 2 Transport to hospital Rs.2,500/- Rs.2,500/- 3 Extra nourishment Rs.3,000/- Rs.6,000/- 4 Medical expenses Rs.1,62,000/- Rs.1,62,000/- 5 Bystander’s expenses Rs.4,500/- Rs.6,000/-
MACA NO. 1130 OF 2014 9 6 Compensation for pain and Rs.15,000/- Rs.75,000/- suffering 7 Compensation for Rs.1,62,000/- Rs.6,77,376/- permanent disability 8 Compensation for Rs.5,000/- Rs.50,000/- disfigurement 9 Loss of amenities NIL Rs.50,000/- Total Rs.3,60,000/- Rs.10,84,876/- Enhanced Rs.7,24,876/-
21. The Tribunal has found 25% contributory negligence on the
part of the petitioner, on the ground that at the time of the accident, he had no valid driving licence. In this case, the police filed Ext.A13 Final report report, in which, it is alleged that the accident occurred due to the negligence of the 1st respondent. In this case there is absolutely no evidence to show that want of driving licence to the petitioner has in any way contributed to the accident. Therefore, the tribunal was not justified in deducting 25% of the compensation on the ground that there was contributory negligence on his part. Therefore, the 3rd respondent being the insurer is liable to pay the full compensation awarded in favour to the petitioner .
22. In the result, this Appeal is allowed in part, and 3rd respondent is directed to deposit a total sum of Rs.10,84,876/- (Rupees Ten lakhs eighty four thousand eight hundred seventy six only), less the amount already MACA NO. 1130 OF 2014 10
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 entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- C. PRATHEEP KUMAR, JUDGE vnk/-