IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
MACA NO. 1520 OF 2013
OP(MV)NO.513/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM
APPELLANT/PETITIONER:
ANIL KUMAR
S/O.RAMACHANDRAN NAIR, CHAITHANYA, ERAVICHIRA EAST,
SOORANADU P.O., KUNNATHOOR TALUK, KOLLAM DISTRICT.
BY ADV SRI.PRATHEESH.P
RESPONDENT/3RD RESPONDENT:
1 NATIONAL INSURANCE COMPANY,
KOLLAM-691001.
*2 ADDITIONAL RESPONDENT NO.2 IMPLEADED:
ALEXANDER THOMAS, SHEELA COTTAGE, AYATHIL P.O.,
KOLLAM-691 017.
* IS IMPLEADED AS ADDITIONAL RESPONDENT NO.2 AS PER ORDER
DATED 07.08.2013 IN I.A.NO.2115/2013 IN MACA NO.1520/2013.
BY ADV SMT.DEEPA GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 23.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING:
MACA 1520 of 2013 2
JUDGMENT
This appeal has been preferred by the claimant in OP(MV)No.513 of 2010 on the file of Motor Accidents Claims Tribunal, Kollam. He is challenging the inadequacy of the compensation awarded by the Tribunal.
2. On 6.02.2010 at 8.30 p.m., the appellant suffered a road traffic accident, while he was walking through Patharam
- Malumel public road. KL-2/AB-8324 motorcycle ridden by the 2nd respondent in a rash and negligent manner, knocked him down and he sustained various injuries, for which he was admitted in hospital for more than one month. He was a 55 year old retired military person earning monthly income of Rs.3,000/-. Due to the head injury he had suffered, he is not able to do any work. He approached the Tribunal claiming compensation of Rs.2,50,000/-. But the Tribunal awarded only Rs.51,500 and that is under challenge.
3. The accident, injuries and the policy are not MACA 1520 of 2013 3 disputed by the Insurer. The owner of the offending vehicle was impleaded as additional 2nd respondent in the appeal.
4. According to the appellant, he was a retired military person earning monthly income of Rs.6,000/-. But the Tribunal took his income as Rs.3,000/- only. As per the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951], he was eligible to get his income fixed at Rs.7,500/- as the accident was in the year 2010. But, since his case was that, his monthly income was only Rs.6,000/-, it could be taken as such without any further enhancement. The Tribunal took his loss of earning for a period of three months @ Rs.3,000/- per month. Since we have fixed his notional income as Rs.6,000/- per month, towards loss of earning, he was eligible to get Rs.18,000/-. Deducting Rs.9,000/- already awarded, he is entitled to get Rs.9,000/- as enhanced compensation towards loss of earning.
5. Towards bystander expenses, he was given Rs.150/- MACA 1520 of 2013 4 per day. Since the accident was in the year 2010 and he was hospitalised for 36 days, Rs.500/- per day could have been awarded for 36 days of hospitalisation. So, he was eligible to get Rs.18,000/- and deducting Rs.5,400/- already paid, he is eligible to get Rs.12,600/- as enhanced compensation for bystander expenses.
6. Towards extra nourishment, he was awarded only Rs.1,000/- and that is too low. There was hospitalisation for 36 days and this Court is inclined to award Rs.2,000/- more towards extra nourishment.
7. Towards pain and suffering, he was awarded Rs.15,000/- only. Considering the nature of injuries suffered and period of hospitalisation, Rs.10,000/- more is only reasonable.
8. The Tribunal awarded compensation for permanent disability taking his disability as 4% though there was no medical evidence to prove the disability aspect. Pending appeal, as per order in I.A.No.2050 of 2013, this Court MACA 1520 of 2013 5 referred the appellant to Medical Board of Medical College Hospital, Thiruvananthapuram, to assess his disability, if any, the extent to which it is affecting his earning capacity etc. The Medical Board, after examining the appellant issued Disability Certificate and that is on board. That certificate shows that as on 04.10.2013, the appellant was having 30% disability as he was having organic mood disorder (following the RTA), decrease tone and tempo of speech, depressed mood and inability to sustain attention. The Board has reported that he is expected to recover completely and he needs follow up care and reassessment of disability after a period of one year. The disability noted was temporary and partial and it can cause mild impairment in carrying out his day to day activities. There is no evidence to show that the appellant reassessed his disability after a period of one year. The Disability Certificate issued by the Board was dated 04.10.2013. Now we are in 2022 ie. 9 years elapsed after the disability assessed by the Board. Since the Medical MACA 1520 of 2013 6 Board reported that he was expected to recover completely and the disability was temporary and partial, at present this Court is not able to accept his disability as 30%, which was assessed 10 years ago. So, his disability for the purpose of assessing loss of earning capacity is taken as 20%. We have taken the monthly income of the appellant as Rs.6,000/-. Since he was aged 55 years on the date of accident, the multiplier applicable is 11. So, the compensation for permanent disability could be assessed as Rs.1,58,400/- (6000X12X11X20/100). He was already paid Rs.15,840/- towards permanent disability. So he is eligible to get Rs.1,42,560/- as enhanced compensation for permanent disability.
Head of claim Amount Amount Difference to be
awarded by awarded in drawn as
the Tribunal appeal enhanced
compensation
Loss of earning Rs.9,000/- Rs.18,000/- Rs.9,000 /-
Bystander Rs.5,400/- Rs.18,000/- Rs.12,600/-
expenses
MACA 1520 of 2013 7
Extra Rs.1,000/- Rs.3,000/- Rs.2,000/-
nourishment
Pain and Rs.15,000/- Rs.25,000/- Rs.10,000/-
suffering
Permanent
disability Rs.15,840/- Rs.1,58,400/- Rs.1,42,560/-
Total Rs.1,76,160/-
9. In all other heads, the compensation awarded seems to be reasonable .
10. In the result, appellant is entitled to get enhanced compensation of Rs.1,76,160/- (9,000 + 12,600 + 2,000 + 10,000 + 1,42,560) (Rupees One Lakh Seventy Six Thousand One Hundred and Sixty only).
11. The 1st respondent-Insurer is admitting the policy but according to them, the rider had no valid Driving Licence to drive the motorcycle. So the Insurer is not liable to indemnify the insured. But since the policy is admitted, the 1st respondent-Insurer is directed to deposit enhanced compensation of Rs.1,76,160/- in the Bank account of the appellant with 7.5% interest from the date of petition till MACA 1520 of 2013 8 realisation, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. After depositing the amount, the 1st respondent-Insurer shall recover that amount from the additional 2nd respondent owner.
The appeal is allowed accordingly. No order as to costs.
Sd/-
SOPHY THOMAS, JUDGE DSV/25.08.2022