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Judgment
,,,
C.S.Dias,J",,,
The appellant was the petitioner in OP (MV) No.707 of 2003 on the file of the Motor Accidents Claims, Kottayam. The 2nd respondent in the claim",,,
petition is the 2nd respondent in the appeal. Pursuant to the directions of this Court on 25.03.2021 in I.A.No.1 of 2021, the respondents 1 and 3 in the",,,
appeal were deleted. The parties are, for the sake of convenience, referred to as per their status in the claim petition.",,,
The concise facts in the claim petition, relevant for the determination of the appeal are: on 02.03.2003, while the petitioner was returning home after",,,
tuition classes on a motorcycle bearing registration No.KL5L/395 through the southern side of the Pala-Athirampuzha public road, when he reached",,,
Mangalam Kalunk, a stage carriage Bus bearing registration No.KL13F/9189 (offending vehicle) driven by the 3rd respondent in a rash and negligent",,,
manner, hit the motorcycle of the petitioner. The petitioner fell down and sustained serious injuries including a segmental fracture of mandible,",,,
comminuted fracture of maxilla, fracture of occiptal bone, pelvic fracture etc. The offending vehicle was owned by the 1st respondent and insured",,,
with the 2nd respondent. The petitioner contended that the respondents 1 to 3 were jointly and severally liable to pay him compensation, which he",,,
quantified at Rs.7,42,000/-",,,
The respondents 1 and 3 did not contest the proceedings.,,,
The 2nd respondent resisted the claim petition by contending that the compensation claimed by the petitioner was excessive. However, it was",,,
admitted that the offending vehicle had a valid insurance policy.,,,
The petitioner and the Doctors who treated him were examined as PW1 to PW3 and Exts.A1 to A23 were marked in evidence. The respondent did,,,
not let in any evidence.,,,
The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the",,,
petitioner to recover an amount of Rs.2,37,00/- with interest at the rate of 7% per annum from the date of petition till the date of realization along with",,,
the cost of Rs.7,000/-. The 2nd respondent was directed to pay compensation amount.",,,
Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal.",,,
Heard Sri.Mathew John, the learned counsel for the appellant/petitioner and Smt.S.Jayasree, the learned counsel appearing for the 2nd respondent-",,,
insurance company.,,,
The question 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.A4 charge-sheet filed by the police after the investigation substantiates that the accident occurred solely on account of the negligence on the,,,
part of the 3rd respondent, who drew the offending vehicle in a rash manner. Undisputedly, the 1st respondent was the owner of the vehicle and the",,,
2nd  respondent was the insurer. Therefore, the 2nd respondent is liable to indemnify the 1st respondent for the liability that has arisen due to the",,,
accident. Ext.A2-wound certificate and Ext.A11 and Ext.A12 disability certificates proves the injuries sustained by the petitioner. In Ext.A11 which,,,
was proved through PW2, it is established that the petitioner has a permanent partial functional disability of 20% according to the Mc bride scale",,,
taking the body as a whole. However, in Ext.A12 certificate which was proved through PW2 it is also certified that the mobility of the lower incisors",,,
may require periodontal surgery to preserve the teeth. Accordingly, it was certified that the petitioner has a permanent disability of 14%.",,,
The learned counsel appearing for the appellant submitted that Ext.A11 and Ext.A12 have to be co-jointly read and the disability of the petitioner,,,
has to be fixed at 34%.,,,
The above submission of the learned counsel appearing for the appellant was vehemently opposed by the learned counsel appearing for the,,,
respondent, who contended that PW2 has in Ext.A11 categorically found that the petitioner has a whole-body disability of 20% , which has rightly",,,
been accepted by the Tribunal .,,,
On a perusal of Ext.A11 and the oral testimony of PW2, it is seen that PW2 had examined all the seven injuries of the petitioner which has been",,,
noted on Ext.A11 and has certified the whole-body disability of the petitioner at 20%. Therefore, the contention of the learned counsel for the",,,
appellant that 14% of the disability certified in Ext.A12 has to be added with the 20% disability certified in Ext.A11 cannot be accepted. Hence, I fix",,,
the disability of the petitioner at 20%.,,,
Undisputedly, the petitioner was an Engineering Diploma Student. The accident occurred while he was returning after his tuition classes. The",,,
petitioner had not claimed any monthly income.,,,
This Court in National Insurance Company Ltd. v. Fathimath Zuhara [2016(3) KLT 459] has fixed the notional income of an Engineering student,,,
at Rs.9,000/- per month for an accident that took place in the year 2005.",,,
Notional income,,,
Following the parameters in Fathimath Zuhara (supra) and considering the fact that the accident occurred on the year 2003 and that the petitioner,,,
was an Engineering Diploma Student, I am of the opinion that the petitioner's notional income can safely be fixed at Rs.7,000/- per month. Hence, I re-",,,
fix the petitioner's notional income at Rs.7,000/-per month instead of Rs.2,500/- fixed by the Tribunal .",,,
Bye-stander expenses,,,
As per Ext.A11 certificate proved through PW2, it is seen that the petitioner was hospitalised from the date of accident i.e., 02.03.2003 to",,,
19.03.2003. He was treated by interlocking nail left femur and screw fixation of the left forearm with pubic symphysis, open reduction mandible and",,,
maxilla. He was put on weights for a period of six months. Therefore, it is proved by Ext.A11 read with the oral testimony of PW2, that the petitioner",,,
was indisposed for a period of six months and needed the assistance of a byestander. Hence, I am of the firm opinion that the byestander expenses",,,
fixed by the Tribunal at Rs.7,200/- is too meagre. Accordingly, I re-fix the byestander expenses at Rs.36,000/- i.e., Rs.200/- per day for a period of",,,
180 days instead of Rs.7,200/- awarded by the Tribunal.",,,
Sl.
No",Heads of claim,"Amount awarded by
the Tribunal (in
rupees)","Amounts modified
and recalculated by
this Court
1,Expenses for Transport,"2,000/-","2,000/-
2,Damages to clothing,"1,000/-","1,000/-
3,Byestander expenses,"7,200/-","36,000/-
4,Expenses for extra nourishment,"2,000/-","2,000/-
5,Medical expenses,"50,000/-","50,000/-
6,Compensation for pain and sufferings,"50,000/-","50,000/-,
7,Compensation for loss of amenities,"50,000/-","50,000/-
8,Loss due to disability,"72,000/-","3,02,400/-
,,"2,37,000","4,93,000/-