Saidalavi.M vs Babu

,,,

C.S.Dias, J",,,

The appellant was the petitioner in OP (MV) No.292 of 2004 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondents in the",,,

claim petition are the respondents in the appeal.,,,

This court by order dated 29.3.2021 in I.A.No.1 of 2021 had deleted the 2nd respondent from the party array. The parties are, for the sake of",,,

convenience, referred to as per the status in the claim petition.",,,

The concise facts in the claim petition, relevant for the determination of the appeal are: on 17.02.2004 while the petitioner was travelling in a lorry",,,

bearing registration No.KL-08W/9212 (offending vehicle), driven by the 1st respondent, when the vehicle reached Pullanhimedu on the Wayanad-",,,

Kozhikode road, the 1st respondent lost control of the vehicle and it hit on the traffic divider and capsized. The petitioner sustained serious injuries in",,,

the accident and was treated at the District Hospital, Mananthavady from 17.2.2004 till 13.3.2004. The petitioner was a driver by profession and",,,

earning a monthly income of Rs.5,000/-. The 2nd respondent was the owner of the vehicle and the 3rd respondent is the insurer. The petitioner",,,

contended that the respondents are jointly and severally liable to pay compensation to him, which he quantified at Rs.2,00,000/-.",,,

The 2nd respondent did not contest the proceedings and was set ex-parte. The 1st respondent filed a written statement, refuting the allegations in",,,

the claim petition. He also disputed the compensation claimed under the various heads.,,,

The 3rd respondent filed a written statement admitting that the lorry had a valid insurance policy. However, it was contended that the amount of",,,

compensation claimed under different heads was excessive.,,,

The petitioner was examined as PW1 and Exts.A1 to A5 were marked in evidence. The disability certificate issued by the District Medical Board,",,,

Wayanad was marked as Ext.C1.,,,

The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 3rd",,,

respondent to pay the petitioner an amount of Rs.65,950/-with interest at the rate of 6% per annum from the date of filing the petition till the date of",,,

payment along with proportionate costs.,,,

Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/petitioner is in appeal.",,,

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3rd respondent/insurance company.,,,

The questions that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and,,,

just?.,,,

A Constitution Bench of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], has held that",,,

Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of",,,

fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of",,,

fairness, reasonableness and non-violation of the principle of equitability.",,,

Ext.A1-FIR and Ext.A2-scene mahazar substantiates that the accident occurred due to the negligence on the part of the 1st respondent in driving,,,

the lorry. Undisputedly, the lorry was owned by the 2nd respondent and insured with the 3rd respondent. Therefore, the 3rd respondent is liable to",,,

indemnify the 2nd respondent of its liability to pay compensation to the petitioner.,,,

Ext.A3 discharge certificate proves that the petitioner was hospitalised from 17.2.2004 to 13.3.2004, i.e. for a period of 23 days. He suffered a",,,

compression fracture of T-12 and L-3 vertebra. A duly constituted Medical Board by Ext.C1 has certified the petitioner's permanent whole body,,,

disability at 15%, which was accepted by the Tribunal.",,,

The main area of dispute is regarding the notional income of the petitioner fixed by the Tribunal.,,,

The petitioner had claimed that he was a driver by profession and earning a monthly income of Rs.5,000/- per month. However, the Tribunal fixed",,,

the notional income of the petitioner at Rs.2,100/-.",,,

The Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13",,,

SCC 236] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month.",,,

Notional income,,,

Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decision and considering that the petitioner was a driver by,,,

profession and aged 43 years at the time of the accident and that he had claimed that he had an income of Rs.5,000/- per month, I am of the",,,

considered opinion that the petitioner's notional income can safely be fixed at Rs.5,000/- per month. Hence, I re-fix the petitioner's notional income at",,,

Rs.5,000/- per month.",,,

Loss of earnings,,,

Eventhough the petitioner had claimed that he was incapacitated for a period of six months i.e. from 17.2.2004 to 16.8.2004, the Tribunal only",,,

fixed the loss of earnings for a period of one month, which according to me is unreasonable. Going by the injuries in Ext.A3 discharge certificate and",,,

Ext.C1-disability certificate, I am of the firm opinion that the petitioner's loss of earnings has to be fixed for a period of three months at the rate of",,,

Rs.5,000/- per month. Hence, I enhance the compensation under the head 'loss of earnings' at Rs.15,000/- instead of Rs.2,000/-awarded by the",,,

Tribunal.,,,

Pain and sufferings,,,

The petitioner had claimed compensation under the head pain and sufferings at Rs.25,000/-. However, the Tribunal awarded only an amount of",,,

Rs.5,000/-. Again on an appreciation of Ext.A3 discharge certificate and Ext.C1 disability certificate and the fact that the petitioner was hospitalized",,,

for a period of 23 days and incapacitated for a period of three months, I am of the definite opinion that the petitioner should be awarded compensation",,,

under the head 'pain and sufferings' at Rs.15,000/-.",,,

Multiplier,,,

Sl.

No",Heads of claim,"Amount awarded by

the Tribunal (in

rupees)","Amounts modified and

recalculated by this

Court

1,Loss of earning,"2,000/-","15,000/-

2,Expense for transportation,500/-,500/-

3,Medical expenses,500/-,500/-

4,Damages to clothing,250/-,250/-

5,Extra nourishment,500/-,"2,000/-

6,Expenses for bystander,500/-,"5,750/-,

7,Compensation for pain and sufferings,"5,000/-","15,000/-

8,Loss due to disabilities,"56,700/-","1,26,000/-

,Total,"65,950/-","1,65,000/-