Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 29TH DAY OF JULY 2021 / 7TH SRAVANA, 1943 MACA NO. 2196 OF 2009 AGAINST THE ORDER/JUDGMENT IN OP(MV) 2063/2002 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR APPELLANT/PETITIONER: PREMAN, S/O.CHANDRAN, NADUVILPURAKKAL HOUSE, P.O.PONNORE, (VIA) PARAPPOOR,, THRISSUR. BY ADV SRI.P.V.CHANDRA MOHAN RESPONDENTS/RESPONDENTS: 1 C.D. JOY, S/O.DEVASSY, CHIRAYATH HOUSE, THOYAKKAVU, THRISSUR. 2 PANDIYATH JYOTHI RAJAN, S/O.ARAVINDAKSHAN NAIR, PANDIYATH HOUSE, NEAR PARAMBUTHULLI TEMPLE, P.O.MULLASSERY, THRISSUR. 3 THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, ORISON COMPLEX, WADAKKANCHERRY ROAD, KUNNAMKULAM. BY ADVS. SRI.PMM.NAJEEB KHAN SRI.RAJESH THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2196 OF 2009 2
JUDGMENT
The appellant was the petitioner in OP(MV) No.2063 of 2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the claim petition.
2. The short facts, relevant for the determination
of the appeal are: on 3.9.2001, while the appellant was travelling in a bus bearing Reg.No.KL 13/A 178 through Kechery - Vadakkanchery public road, the bus lost control and hit against a telephone post. The appellant sustained serious injuries and was treated at the Amala Hospital, Thrissur as an inpatient for 35 days. The appellant was an auto rickshaw driver by profession and was earning a monthly income of Rs.4,500/-. The bus was owned by the 1st respondent and insured with the 3rd respondent. The appellant suffered a permanent MACA NO. 2196 OF 2009 3 disability and was incapacitated from carrying on with his work. The appellant claimed a total compensation of Rs.3,50,500/- from the respondents.
3. The respondents 1 and 2 although entered appearance, did not file any written statement.
4. The 3rd respondent filed a written statement
admitting the bus had a valid insurance coverage. However, it was contended that the 3rd respondent was not liable to compensate the petitioner as the accident did not occur due to the negligent driving of the bus by the 2nd respondent. The 3rd respondent also disputed, the age, occupation and income of the appellant and contended that the amount of compensation sought for in the claim petition was on the higher side.
5. The appellant examined himself as PW1 and the doctor who issued the disability certificate was MACA NO. 2196 OF 2009 4 examined as PW2. Exts.A1 to A8 were produced and marked in evidence. The 3 rd respondent produced and marked Ext.B1 copy of the insurance policy in evidence.
6. The Tribunal, after analysing the pleadings and
materials on record, allowed the claim petition in part, by permitting the appellant to realize an amount of Rs.1,15,700/- with interest and cost from the 3 rd respondent.
7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal.
8. Heard, Sri.P.V.Chndramohan, the learned counsel appearing for the appellant/petitioner and Sri.P.M.M.Najeeb Khan, the learned counsel appearing for the 3rd respondent/insurance company.
9. The sole question that arises for consideration in this appeal is whether the quantum of compensation MACA NO. 2196 OF 2009 5 awarded by the Tribunal is reasonable and just.
10. Ext.A2 charge sheet filed by the Kunnamkulam
Police after investigation in Crime No.576 of 2001 proves that the accident occurred on account of the negligence of the 2nd respondent who drew the bus in a negligent manner. Admittedly, the bus was owned by the 1st respondent and insured with the 3 rd respondent. Therefore, the 3rd respondent is to indemnify the 1 st respondent for the liability that has arisen out of the accident.
11. The appellant had claimed that he was an auto driver by profession and earning a monthly income of Rs.4,500/- per month. The Tribunal fixed the notional income of the appellant, for want of materials, at Rs.2,000/- per month. Notional Income MACA NO. 2196 OF 2009 6
12. In Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (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.
13. Following the ratio in the aforecited decision
and taking into account the fact that the accident occurred in the year 2001, I am of the opinion that the appellant’s notional income can safely be fixed at Rs.3,000/- per month, which I do. Loss of earnings
14. The appellant had sustained a fracture on his
pelvis with fracture of all four pelvic rami, a cut injury to hip extensor muscles and tenderness to the urinary bladder injury with multiple bodily injuries as evidenced by Ext.A3. PW2 who proved Ext.A5 disability certificate MACA NO. 2196 OF 2009 7 testified that the appellant has a total disability of 26%. It is also on record that the appellant was treated as an inpatient for a period of 35 days. Taking into account all the above factors, I hold that the appellant was indisposed for a period of four months as claimed in the claim petition.
15. In view of the refixation of the notional income
of the appellant at Rs.3,000/- and the period of temporary disability at four months, I refix the loss of earnings at Rs.12,000/- instead of Rs.8,000/- awarded by the Tribunal. Disability
16. The disability of the appellant was assessed by
PW2 as per Ext.A5 disability certificate. However, the Tribunal went on to hold that the disability assessed by PW2 was on the higher side and fixed the disability at MACA NO. 2196 OF 2009 8 15%.
17. In Rajkumar v. Ajaykumar (2011) 1 KLT 620 SC), the Hon’ble Supreme Court has held that the disability can be assessed by examining the doctor who treated the injured.
18. In the instant case, the appellant had produced Ext.A5 certificate which was proved through PW2 proving that the appellant has a permanent functional disability of 26%.
19. The Hon’ble Supreme Court in Union of India
and another v. Talwinder Singh (2012 5 SCC 480) has held that court should not ordinarily interfere with the opinion of experts, who are more familiar in the field, and the courts should refrain from expressing general opinion.
20. Following the ratio in Rajkumar and MACA NO. 2196 OF 2009 9
Talwinder Singh(supra), I am of the firm opinion that the Tribunal ought not to have scaled on the disability of the appellant to 15% without any cogent reasons. I do not find any reason to disbelieve the oral testimony of PW2 read with Ext.A5 disability certificate. Hence, I set aside the finding of the Tribunal that the appellant has only at 15% and instead, I refix the disability of the appellant at 26% as per Ext.A5 disability certificate. Multiplier
21. The appellant was aged 32 at the time of accident, therefore, the relevant multiplier is ‘16’. Loss due to disability
22. In view of the aforementioned factors, namely,
the age of the appellant being 32, his notional income being Rs.3,000/- per month, the multiplier being '16' and his disability is 26%, I hold that the appellant is entitled MACA NO. 2196 OF 2009 10 for compensation for loss due to disability at Rs.1,49,760/- instead of Rs.61,200/- assessed by the Tribunal. Loss of Amenities
23. Even though the appellant had claimed compensation for loss of amenities, the Tribunal did not award any amount as compensation under the said head.
24. Taking into account the fact that the appellant
was treated as an inpatient for a period of 35 days, he has sustained a permanent disability of 26% and that he incapacitated for a period of four months, I hold that the appellant is entitled for a reasonable amount as compensation under the head loss of amenities, which I fix at Rs.15,000/-. Bystander Expenses
25. The appellant had claimed an amount of MACA NO. 2196 OF 2009 11 Rs.4,000/-. However, the Tribunal awarded only an
amount of Rs.3,200/- towards bystander expenses. Taking into account the factors mentioned under the head loss of amenities, I hold that the appellant is entitled for bystander expenses as claimed in the claim petition at Rs.4,000/-.
26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation.
27. On an over-all re-appreciation of the pleadings and materials on record and the law laid down in the aforecited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. Head of claim Amount Amounts MACA NO. 2196 OF 2009 12
Awarded by modified and the Tribunal recalculated (in Rs.) by this Court Loss of earnings 8,000/- 12,000/- Transportation 1000/- 1,000/- Extra nourishment 2,000/- 2,000/- Damage to clothing 5,00/- 5,00/- Medical expenses 24,800/- 24,800/- Bystander 3,200/- 4,000/- expenses Pain and sufferings 15,000/- 15,000/- Loss of amenities -- 15,000/- Loss due to 61,200/- 1,49,760/- disability Total 1,15,700/- 2,24,060/-
In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,08,360/- with interest at the rate of Rs.7% per MACA NO. 2196 OF 2009 13
annum from the date of petition till the date of deposit, after deducting the period of 53 days, i.e., a period of delay in preferring the appeal and as ordered by this Court on 13.3.2020 in C.M.Appln.No.2561 of 2009, and proportionate costs. The 3rd respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall
disburse the enhanced compensation to the appellant/petitioner in accordance with law. Sd/- C.S.DIAS, JUDGE pm