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2025 DIGILAW 1065 (KER)

Jagadamma K. T. v. Tinit Thomas

2025-04-11

C.PRATHEEP KUMAR

body2025
JUDGMENT : The petitioner in O.P.(M.V.) No.1267/2013 on the file of the Addl. Motor Accident Claims Tribunal, Kottayam, is the appellant in MACA No.3025/2015 and the 2 nd respondent in the OP is the appellant in MACA No.559/2016 (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 13.05.2012. According to the petitioner, on 13.05.2012 at about 11 p.m., while he was riding a motorcycle, along the M.C. road, a tempo traveller bearing reg.no.KL-5/AD 1539 driven by the 1 st respondent in a rash and negligent manner, hit against the motorcycle and as a result of which, he fell down and sustained serious injuries. 3. The 1 st respondent is the driver, the 2 nd respondent is the owner and 3 rd 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.21,81,000/-. 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 A14, X1, B1 and B2. 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.6,12,706/- rounded to Rs.6,13,000/- and directed the insurer to pay the same and then to recover it from the 2 nd respondent. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner and against the order for pay and recovery, the 2 nd respondent preferred these appeals. 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 the order for pay and recovery sustainable? 9. Heard Sri.Philip T.Varghese, the learned Counsel appearing for the petitioner/appellant, Sri. P.Kuruvilla Jacob, the learned Counsel for the 2 nd respondent, and Smt.Latha Susan Cherian, the learned Standing Counsel for the 3 rd respondent. 10. 2) Whether the order for pay and recovery sustainable? 9. Heard Sri.Philip T.Varghese, the learned Counsel appearing for the petitioner/appellant, Sri. P.Kuruvilla Jacob, the learned Counsel for the 2 nd respondent, and Smt.Latha Susan Cherian, the learned Standing Counsel for the 3 rd respondent. 10. The Point s : 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 working as electrician, earning Rs.10000/- per month, but the Tribunal fixed his monthly income at Rs.5000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. It is true that the petitioner could not prove his income, as claimed in the OP. 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 2012 will come to Rs.8500/-. Therefore, the petitioner being an electrician by profession, his notional income is fixed at Rs.8500/-, for the purpose of computing the loss of disability. 12. In the accident the petitioner sustained the following injuries: (1). comminuted segmental fracture fibula right. (2). comminuted fracture tibia right, (3), fracture (type II open) 3 rd metacarpal right, (4), comminuted trapezoid fracture right hand. (5). open injury medial aspect right knee, (6), fracture inferior pole of patelia, (7). bleeding wound over right knee, and (8). open wound over right knee. 13. Ext.X1 disability certificate shows that the petitioner suffered 18.04% permanent physical disability. It was issued by the medical board, Kottayam. The Tribunal, however, scaled down the percentage of disability of the petitioner to 12%, 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. 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 find any grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 18.04%. 14. On the date of accident, the petitioner was aged 26 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 17, 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.4,37,937/-. 15. Towards loss of earning, the tribunal has awarded Rs.60000/- being the income for 12 months @ Rs.5000/-. Since the notional income of the petitioner is re-fixed at Rs.8500/-, towards loss of earning he is entitled to get a sum of Rs.1,02,000/-(8500 x 12 months). Since future prospects was added along with the income while assessing loss of disability and loss of earnings was awarded for 12 months, further compensation on the head ‘loss of future earning earning capacity’ is not required. Therefore, Rs.75000/- awarded by the Tribunal on that head will be deducted. 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.75,000/-. Towards 'loss of amenities of life' Rs.50000/- was awarded and towards 'extra nourishment' Rs.3000/- 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 a total period of 50 days in 6 spells. 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.100000/-, Rs.60000/- and Rs.10000/- 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. 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 petitioners/appellants are entitled to get a total compensation of Rs.9,37,243/- as modified and recalculated above and given in the table below, for easy reference: Sl. No. Head of Claim Amount awarded by Tribunal (in Rs.) Amount Awarded in Appeal (in Rs.) 1 Loss of earning 60000 102000 2 Transport to hospital 5000 5000 3 Extra nourishment 3000 10000 4 Damage to clothing and articles 1000 1000 5 Medical expense 151306 151306 6 Bystander expense 20000 20000 7 Pain and suffering 75000 100000 8 Permanent disability 122400 437937 9 Loss of future earning capacity 75000 -------- 10 Compensation for loss of amenities 50000 60000 11 Loss of marriage prospects 25000 25000 12 Future treatment 25000 25000 Total 612706 937243 Enhanced Rs. 324537 20. The learned counsel for the 2 nd respondent would argue that the Tribunal was not justified in permitting the 3 rd respondent to recover the compensation from her as at time of the accident the vehicle had valid permit. In the award the Tribunal also found that the offending vehicle had a permit. According to the Tribunal, Ext.B1 permit was only a commercial vehicle permit, that the vehicle was used as a public transport vehicle and therefore there is violation of policy conditions. 21. The learned counsel for the 2 nd respondent has relied upon the decision of a Single Bench of this Court in Vijaya v. Sivaraman 2023 (6) KLT 166, and argued that, even if, a vehicle having permit for stage carriage is used as a contract carriage the same will not amount to violation of the policy condition so as to attract Section 149(2)(a)(i)(c) of the Motor Vehicles Act. Moreover, in this case, there is absolutely no evidence to prove that the offending vehicle was used as a public transport vehicle at the time of the accident. Therefore, I do not find any merit in the finding of the Tribunal that there was violation of policy condition and as such the Tribunal was not justified in allowing the 3 rd respondent to recover the compensation from the 2 nd respondent. Therefore, I do not find any merit in the finding of the Tribunal that there was violation of policy condition and as such the Tribunal was not justified in allowing the 3 rd respondent to recover the compensation from the 2 nd respondent. In other words, the award to the extent it permitted the 3 rd respondent to recover the compensation from the 2 nd respondent is liable to be set aside. In the result, the permission granted to the 3 rd respondent to recover the compensation from the 2 nd respondent is set aside. 22. In the result, these Appeals are allowed. Respondent No.3 is directed to deposit a total sum of Rs.9,37,243 /- (Rupees Nine Lakhs Thirty Seven Thousand Two Hundred and Forty Three 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 133 days, the period of delay in filing the appeal, with proportionate costs in MACA No.3025/2015, within a period of two months from today. (Enhanced compensation will carry interest @8%). The permission granted to the 3 rd respondent to recover the compensation from the 2 nd respondent is set aside. No costs in MACA 559/2016. 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.