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. 2154 OF 2012
OP(MV) 966/2004 OF ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR
ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT/PETITIONER IN OP(MV):
PRADEEP @ MANIKUTTAN, AGED 33 YEARS,
S/O.UNNIKRISHNAN NAMPOOTHIRI, PUNNAVELIL ILLAM,
PARAKODE MURI, ADOOR.
BY ADVS.
SRI.ARUN.B.VARGHESE
SRI.P.HARI
SMT.R.SEEMA
RESPONDENTS/RESPONDENTS IN OP(MV):
1 GIREESH KUMAR, S/O.RAJENDRAN NAIR, KRISHNA BHAVAN,
KUNNIDA, KURUMPAKARA, KOLLAM-689001.
2 PRAKASH R., S/O.RAGHAVAN PILLAI, KUNNAMPADOM, MAYANADU,
KOLLAM-689001.
3 BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LIMITED, CSI BUILDING,
CHINNAKADA, KOLLAM-689001.
BY ADV SMT.SARAH SALVY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME BEEN FINALLY
HEARD ON 19.08.2022, THE COURT ON 26.08.2022 DELIVERED THE
FOLLOWING:
MACA 2154 of 2012 2
JUDGMENT
This appeal has been preferred by the claimant in O.P.(MV) No.966 of 2004 on the file of Additional District Judge and Additional Motor Accidents Claims Tribunal, Pathanamthitta. The appellant has approached this Court alleging inadequacy of the compensation awarded by the Tribunal.
2. On 17.03.2004, while the appellant was riding a motorcycle through Enathu-Ezhamkulam public road, KL- 5/B-6247 bus driven by the 1st respondent in a rash and negligent manner, dashed against his motorcycle and he sustained serious injuries. He was hospitalised for ten days and suffered disability also due to the injuries. He approached the Tribunal claiming compensation of Rs.3,00,000/-. But the Tribunal awarded only Rs.1,35,550/-. According to the appellant, that is not the just compensation and hence this appeal.
3. Let us have a reappraisal of the facts and evidence MACA 2154 of 2012 3 to find out whether any interference is called for in the impugned award.
4. According to the appellant, he was a 25 year old 'santhi' in a temple earning monthly income of Rs.3,000/-. But the Tribunal fixed his notional income at the rate of Rs.2,500/- in the absence of evidence to prove his income. Since the accident was in the year 2004 and the appellant was aged only 25, going by the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951], he was eligible to get his notional income fixed @ Rs.4,500/-. But even according to the appellant, his monthly income was only Rs.3,000/-. So he is not eligible to fix his notional income exceeding his claim. So he is eligible to get his notional income fixed @ Rs.3,000/-. He suffered comminuted fracture of right femur M/3, fracture patella (right) undisplaced and multiple lacerated wounds. He was hospitalised for 7 days initially and thereafter, for removal of implants. Loss of MACA 2154 of 2012 4 earning for six months is justified considering the nature of injuries and hospitalisation. So towards loss of earning, he is eligible to get Rs.18,000/-. Since he was already awarded Rs.10,000/- by the Tribunal he is eligible to get Rs.8,000/- as enhanced compensation towards loss of earning.
5. Towards extra nourishment, he is eligible to get Rs.1,500/- more, considering the period of hospitalisation and the rest period thereafter.
6. Towards bystander expenses, only Rs.1,000/- was awarded. He was hospitalised for ten days in total and since his right femur was fractured with undisplaced fracture of patella, he might have been in need of a bystander even after discharge. So this Court is inclined to award Rs.1,500/- more towards bystander expense.
7. Towards pain and suffering, he was awarded Rs.20,000/-. Considering the multiple fractures and lacerated wounds with hospitalisation of ten days, Rs.30,000/- towards pain and suffering appears to be just MACA 2154 of 2012 5 compensation. So, he is eligible to get Rs.10,000/- more as enhanced compensation for pain and suffering.
8. For permanent disability, the Tribunal awarded Rs.37,800/- taking his monthly income as Rs.2,500/-. Ext.A9 Disability Certificate was relied upon by the Tribunal to take his disability as 7%. Since we have fixed his notional income as Rs.3,000/-, the compensation for permanent disability can be re-assessed as Rs.45,360/- (3,000 X 12 X 18 X 7 / 100). Since he was already paid Rs.37,800/-, he is eligible to get balance Rs.7,560/- as enhanced compensation for permanent disability.
9. Towards loss of amenities, he was awarded only Rs.10,000/-. Since he suffered fracture patella and fracture right femur with partial ankylosis with limping as seen from Ext.A9 Disability Certificate, this Court inclined to award Rs.5,000/- more towards loss of amenities.
10. Under all other heads the compensation awarded seems to be reasonable.
MACA 2154 of 2012 6
Head of claim Amount Amount Difference to be
awarded by awarded in drawn as
the Tribunal appeal enhanced
compensation
Loss of earning Rs.10,000/- Rs.18,000/- Rs.8,000 /-
Extra Rs.1,500/- Rs.3,000/- Rs.1,500/-
nourishment
Bystander Rs.1,000/- Rs.2,500/- Rs.1,500/-
expenses
Pain and Rs.20,000/- Rs.30,000/- Rs.10,000/-
suffering
Permanent
disability and Rs.37,800/- Rs.45,360/- Rs.7,560/-
loss of earning
power
Loss amenities Rs.10,000/- Rs.15,000/- Rs.5,000/-
Total Rs.33,560/-
11. In the result, the appellant is entitled to get enhanced compensation of Rs.33,560/- (8,000 + 1,500 + 1,500 +10,000+ 7,560+ 5,000) (Rupees Thirty Three Thousand Five Hundred and Sixty only)
12. The 3rd respondent-Insurance Company is directed to deposit the enhanced compensation in the Bank account of the appellant with interest at the rate of 7.5% from the MACA 2154 of 2012 7 date of petition till the date of deposit (excluding 402 days of delay in filing the appeal) 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.
The appeal is allowed accordingly. No order as to costs.
Sd/-
SOPHY THOMAS, JUDGE DSV/23.08.2022