IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
MACA NO. 2340 OF 2012
AGAINST THE AWARD DTD.08.03.2012 IN OP(MV) No.203/2008 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/PETITIONER:
SHAJI THOMAS
S/O. ITTY IPE, VELLUTHOTTAM HOUSE, NOW RESIDING AT
KOCHUPURACKAL HOUSE, MANGANAM KARA, VAKATHANAM
VILLAGE, KOTTAYAM.
BY ADV SRI.B.SAINU
RESPONDENTS/RESPONDENTS:
1 HARIDHASAN NAIR
S/O. DAMODHARAN NAIR, VAKKAPURATHU PADINJARATHIL,
ETTUMANOOR KARA, ETTUMANOOR VILLAGE - 686 631.
2 UNNIKRISHNAN NAIR,
S/O. PARAMESWARAN NAIR, LAKSHMI NIVAS, CHAMPAKARA
P.O, KARUKACHAL - 686 540.
3 THE NEW INDIA ASSURANCE COMPANY LIMITED
KOTTAYAM- 686 001.
BY ADVS.
SRI.LAL K.JOSEPH
SRI.KKM.SHERIF
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA No.2340 of 2012 2
SOPHY THOMAS, J.
------------------------------------
M.A.C.A No.2340 of 2012
------------------------------------
Dated this the 17th day of June, 2022
JUDGMENT
This appeal has been preferred by the claimant in O.P (M.V) No.203 of 2008 on the file of MACT, Kottayam, challenging the quantum of compensation awarded under various heads.
2. The appellant met with a road traffic accident on 23.01.2007 at 5 p.m, while he was riding his motorcycle No.KEK 307 along Puthupally-Kanjikuzhy road. KL 5/C 1247 bus driven by the 1st respondent in a rash and negligent manner dashed against his motorcycle and he was thrown down. He was rushed to Matha Hospital, Thellakom and was treated there as an inpatient. The 2nd respondent was the owner of the bus and the 3rd respondent was its insurer. Against his claim of Rs.5,00,000/-, the Tribunal awarded only Rs.1,66,030/-, even though he had suffered type II compound comminuted fracture, both bones of right leg upper one third and permanent disability of 18%. The MACA No.2340 of 2012 3 Tribunal considered only 4% disability for the claimant and his notional income was taken as Rs.4,000/- only, though he was working as a Sales Executive of Aswathi Engineering Works and also an Assistant in the Diocese of CSI Church drawing monthly income of Rs.5,000/-. Challenging the quantum of compensation, the appellant has come up with this appeal.
3. The 3rd respondent/insurer is not disputing the accident and is admitting the insurance policy of the offending bus. But, according to them, the compensation awarded by the Tribunal is 'just' and it needs no interference.
4. Now let us see whether there is any illegality or impropriety in the award impugned, warranting interference by the appellate court.
5. The accident was in the year 2007 and the injured was aged only 45 years at the time of accident. According to the appellant, he was working as a Sales Executive of Aswathi Engineering Works and he was an Assistant also in the Diocese of CSI Church drawing an additional income of Rs.5,000/- per month. Even then his monthly income was notionally fixed @ Rs.4,000/- only by the Tribunal. Going by the decision MACA No.2340 of 2012 4 Ramchandrappa vs. Manager, Royal Sundaram Aliance Insurance Company Limited (AIR 2011 SC 2951), even a vegetable vendor was eligible to get his notional income fixed @ Rs.6,000/- per month in the year 2007. Learned counsel for the 3rd respondent/insurer is amenable for fixing the notional income of the appellant at Rs.6,000/- per month.
6. Regarding the disability part, according to appellant, he had suffered 18% disability but the Tribunal assessed his disability only at 4%. Only the certificate was produced, and the doctor who issued the same was not examined by the appellant to prove it before court. It is not a certificate issued by the Medical Board also. Moreover, even the appellant did not enter the box to prove the disability suffered by him in the given accident. So, no materials are available, to enter into a finding that the appellant had suffered disability exceeding 4%.
7. Since the appellant had suffered type II compound comminuted fracture both bones of right leg upper one third and hospitalised for 17 days, towards pain and sufferings, the amount awarded i.e. Rs.23,000/- seems to be on the lesser side. Considering the injuries he had suffered and hospitalisation MACA No.2340 of 2012 5 undergone, Rs.30,000/- could have been awarded towards pain and sufferings. So, he is entitled to get Rs.7,000/- more under that head. Towards bystander expenses, only Rs.200/- per day was given for 17 days of hospitalisation. Since both bones of his right leg were fractured, even after discharge he could have been in need of a bystander for his basic needs. At least for one month, he should have been pulling on with the help of a bystander. Rs.200/- per day awarded by the Tribunal is quite meager, and the appellant is entitled to get Rs.500/- per day for 30 days towards bystander expenses which will come to Rs.15,000/-. He was already given Rs.3,400/- and so, he is entitled to get the balance amount of Rs.11,600/- under that head. Towards loss of earning, he was given Rs.24,000/- @ Rs.4,000/- per month for six months. He was eligible to fix his notional income at the rate of Rs.6,000/- and considering the nature of injury he had suffered, he might not have been able to go for work at least for ten months. So, towards loss of earning, he was eligible to get Rs.60,000/-. He was already paid Rs.24,000/- under that head. So he is eligible to get the difference of Rs.36,000/- under the head 'loss of earning'. MACA No.2340 of 2012 6
8. Towards loss of amenities, he was given only Rs.13,000/- against his claim of Rs.25,000/-. As he had suffered type II compound comminuted fracture both bones of right leg upper one third and also permanent disability of 4% which will definitely affect his quality and enjoyment of life, he was eligible to get Rs.25,000/- towards loss of amenities. He was already paid Rs.13,000/- and so he is eligible to get the balance Rs.12,000/- under that head.
9. While assessing damages for permanent disability, his notional income was taken at Rs.4,000/-. Since we have fixed his notional income @ Rs.6,000/- per month, the compensation under that head can be assessed as Rs.40,320/- (6000x12x4x14/100). Since he was already paid Rs.26,880/-, he is eligible to get the balance amount of Rs.13,440/- towards compensation for permanent disability.
10. In all other counts, the compensation awarded seems to be reasonable and it requires no modification.
In the result, the appellant is entitled to get enhanced compensation of Rs.80,040/-(7000+11600+36000+ 12000+ 13440). The 3rd respondent/insurer is directed to deposit MACA No.2340 of 2012 7 the enhanced compensation in the bank account of the appellant with interest @ 9% from the date of petition till the date of deposit 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 deducing 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 smp