Kerala High Court
Prashob V vs Bimalraj on 4 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
TUESDAY, THE 4
DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
MACA NO. 1165 OF 2014
AGAINST THE AWARD DATED 31.10.2013 IN OPMV NO.79 OF 2005 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY
APPELLANT/PETITIONER:
RASHOB V.,
P
S/O. K.P.BALAN, SHOBHANAM, KAKKADAVATH HOUSE,
P.O.MOOZHIKKARA, THALASSERY, KANNUR DISTRICT.
BY ADV SRI.V.BINOY RAM
RESPONDENTS/RESPONDENTS:
1 BIMALRAJ, KUNIYIL HOUSE, MANJERI P.O., MALAPPURAM DISTRICT, PIN-676 121. 2 P.T.MANOJAN, S/O. CHATHUKUTTY, PADINHARETHARANTAKUNNUMMAL, PUTHUR, P.O.CHENDAYAD, KANNUR DISTRICT, PIN-670 692. 3 NATIONAL INSURANCE COMPANY LTD., KANNUR, PIN-670 003. 4 JAYASEELAN P., PURAKANDIYIL HOUSE, P.O.THIRUVANGAD, THALASSERY, KANNUR DISTRICT,PIN-670 101. MACA 1165 of 2014 2 5 NEW INDIA INSURANCE COMPANY LTD., THALASSERY, KANNUR DISTRICT, PIN-670 101. ADV SMT.DEEPA GEORGE, SC, FOR NATIONAL INSURANCE COMPANY LTD. ADV.SRI.P.MURALEEDHARAN, SC, NEW INDIA INSURANCE COMPANY LTD. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY EARD H ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 1165 of 2014 3 J U D G M E N T This appeal is at the instance of the claimant in OP(MV)No.79 of 2005 on the file of the Motor Accidents Claims Tribunal, Thalassery, challenging the awardon the ground of inadequacy of compensation. 2. On 07.12.2003, while the appellant wastravelling in an autorickshaw, KL-10/P-7182 bus driven by the 2nd respondentinarashandnegligentmanner,dashedagainst the autorickshaw, whereby the appellant suffered comminuted fracture of both bones of right forearm with compartment syndrome, and he was hospitalised for 56 daysintotalandheunderwentfoursurgeries.Hewasa22 year old man working in a workshop, earning monthly income of Rs.4,500/-. He suffered much loss physically andfinancially due totheinjuriessufferedintheaccident. He approached the Tribunal claiming compensation of Rs.4,00,000/-, but the Tribunal awarded only MACA 1165 of 2014 4 Rs.1,80,100/-. Hence this appeal. 3.The1strespondentwastheowneroftheoffending bus,2ndrespondentwasitsdriverandthe3rdrespondent was its Insurer. Respondents 4 and 5 are the owner-cum-driver and Insurer respectively of the autorickshaw, in which the appellant was travelling. The 3rd respondent-Insurer admitted the accident as well as theInsurancePolicyoftheoffendingbus.LearnedTribunal found that the accident occurred due to the rash and negligentdrivingof thebusbythe2ndrespondentandso the 3rd respondent-Insurer was liable to indemnify the owner of the bus, and thereby to compensate the appellant. 4. According to the 3rd respondent-Insurer, the compensation awarded by the Tribunal is just and reasonable and so, it needs no modification. 5. Now this Court is called upon to answer whether MACA 1165 of 2014 5 there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. 6. Heard learned counsel for the appellant and learned counsel for the 3rd respondent-Insurer. 7. Learned counsel for the appellant would submit that thoughExt.A8 SalaryCertificatewasproducedbythe appellantbefore theTribunal toshowthat hewasearning monthly income of Rs.4,500/-, learned Tribunal fixed his notionalincome only@Rs.4,000/-.Itisseenthatlearned Tribunal, taking into account Ext.A8 and the attending circumstances, fixed his monthly income as Rs.4,000/-. Even relying on the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951], the notional income fixed for the appellant @ Rs.4,000/-, in the year 2003 seems to be reasonable and it needs no interference. 8. Learned Tribunal assessed loss of earning for six MACA 1165 of 2014 6 months @ Rs.4,000/-. The appellant was hospitalized for 56daysandheunderwentfoursurgeries.Hehadsuffered comminuted fracture of both bones of right forearm with compartment syndrome. Since that fracture was on his rightforearm,hemightnothavebeenabletocontinuehis job as a mechanic at least for a period of 9 months. So, this Court is inclined to award Rs.12,000/- as enhancement towards loss of earning for extra three months (4,000x3). 9. Towards damage to clothing,thisCourt isinclined toawardRs.300/-, sincenoamountwasseenawardedby the Tribunal under that head. 10. For extra nourishment, learned Tribunalawarded only Rs.6,000/-. It has come out in evidence that the appellant was hospitalised for 56 days and he was compelledto takerestatleastfor9monthswithoutgoing for any job.So,this Courtisinclined toawardRs.2,000/- MACA 1165 of 2014 7 more under the head 'extra nourishment'. 11. Towards pain and suffering, learned Tribunal awarded Rs.40,000/- against his claim of Rs.50,000/-. Considering the nature of injuries suffered by the appellant, the period of hospitalisation and the disability also sufferedbytheappellantduetotheinjuriessuffered, this Court is inclinedtoawardRs.5,000/-more under the head 'pain and suffering'. 12. No amount was seen awarded by the Tribunal under the head lossof amenities.Theappellant wasa 22 year oldman andhe suffered10%disabilityasseenfrom Ext.X2 Disability Certificate issued by the Medical Board. Thecomminutedfracturesufferedbytheappellantwason his right forearm. So, this Court is inclined to award Rs.15,000/- under the head 'loss of amenities'. 13.Thecompensationawardedunder allotherheads seems to be reasonable and hence it needs no MACA 1165 of 2014 8 modification. Head of claim mount A mount A ifference to D awarded by awarded in be drawn as the Tribunal appeal enhanced compensation Loss of earning Rs.24,000/- Rs.36,000/- Rs.12,000/- amage to D .... Rs.300/- Rs.300/- clothing Extra nourishment Rs.6,000/- Rs.8,000/- Rs.2,000/- Pain and suffering Rs.40,000/- Rs.45,000/- Rs.5,000/- Loss of amenities .... Rs.15,000/- Rs.15,000/- Total Rs.34,300/- 14. In the result, the appellant is entitled to get enhanced compensation of Rs.34,300/-. 15.The3rd respondent-Insurerisdirected todeposit enhanced compensation of Rs.34,300/- (Rupees Thirty Four Thousand Three Hundred only), with interest @ 8% per annum, from the date of petition till the date of deposit, (excluding 87 days of delay in filing theappeal), before the Motor Accidents Claims Tribunal, Thalassery, MACA 1165 of 2014 9 withinaperiodoftwomonthsfromthedateofreceiptofa copyofthisjudgment.LearnedTribunalshalldisbursethat amount to the appellant after deducting the liabilities, if any, towards tax, balance court fee, legal benefit fund etc. The appeal is allowedtotheextent asaboveand no order is made as to costs. Sd/- SOPHY THOMAS JUDGE DSV/-