Udayakumar.G vs Biju Thomas
2021 Latest Caselaw 23927 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943
                    MACA NO. 2256 OF 2014
AGAINST THE AWARD IN OPMV 1088/2009 OF MOTOR ACCIDENT CLAIMS
                  TRIBUNAL, PATHANAMTHITTA
APPELLANT/PETITIONER:

         UDAYAKUMAR.G.
         PULLOLIL HOUSE, EZHUMATTOOR P.O.,
         MALLAPPALLY TALUK.
         BY ADVS.
         SRI.T.K.KOSHY
         SRI.ABE RAJAN
         SRI.SABU I.KOSHY


RESPONDENTS/RESPONDENTS 1 TO 3:

    1    BIJU THOMAS
         VETTUPARAMBIL HOUSE, CHALAPALLY P.O.,
         MALLAPPALLY, PIN-689586.
    2    EAPEN KURIAN
         S/O.P.V.KURIAN, PALLIPADAVIL HOUSE,
         NIRANAM WEST P.O., THIRUVALLA,
         PIN-689621.
    3    THE BRANCH MANAGER
         THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE,
         CHEERANVELIL BUILDING, KANJIRAPALLY P.O.,
         KOTTAYAM DISTRICT, PIN-686507.
         BY ADVS.
         SHRI.M.V.S.NAMPOOTHIRY
         R3 BY SRI.VPK.PANICKER


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 16.09.2021, THE COURT ON 13.12.2021 THE
FOLLOWING:
 M.A.C.A.No.2256/2014
                                    2




                             T.R. RAVI, J.
              --------------------------------------------
                       M.A.C.A.No.2256 of 2014
               --------------------------------------------
              Dated this the 13th day of December, 2021

                              JUDGMENT

On 23.7.2009, the M-80 scooter on which the appellant was

travelling as a pillion rider, was hit by a motorcycle driven in a rash

and negligent manner. The appellant sustained serious injuries. He

preferred a claim before the Motor Accidents Claims Tribunal,

Pathanamthitta. The Tribunal awarded a sum of Rs.1,96,747/-. The

appellant has filed this appeal seeking enhancement of the amount

awarded by the Tribunal.

2. Heard Sri T.K.Koshy on behalf of the appellant and

Sri V.P.K.Panicker on behalf of the 3rd respondent insurer.

3. The appellant was 36 years old at the time of the

accident and claimed that he was an agriculturist and also working

as a rubber tapper. He claimed that he was earning Rs.8,000/- per

month. He was admitted in hospital and had to remain there for 13

days as inpatient. The Medical Board assessed his disability as

30%. He had suffered compound comminuted fracture of frontal

bone and traumatic optic neuropathy. The Medical Board has noted

in Ext.A10 disability certificate that the appellant had depressed M.A.C.A.No.2256/2014

frontal bone and traumatic optic neuropathy and that he had

complaints of headache and giddiness and was not in a position to

continue the job of rubber tapping.

4. The counsel for the appellant submitted that the

Tribunal has gone wrong in arriving at the compensation payable

under the heads permanent disability, loss of earnings,

transportation, extra nourishment, damage to clothing, bystander

expenses, pain and sufferings, loss of amenities and disfiguration.

It is submitted that the Tribunal fixed a notional income of only

Rs.4,000/- as against the claim for Rs.8,000/-. It is submitted that

applying the dictum in Ramachandrappa v. Royal Sundaram

Alliance Insurance Co.Ltd., reported in [(2011) 13 SCC 236]

and Syed Sadiq & others v. Divisional Manager, United India

Insurance Company Ltd. reported in [(2014) 2 SCC 735], the

monthly income of a coolie would be Rs.7,000/-. It is submitted

that there was no reason for not granting the amount of

Rs.8,000/- which was claimed. I find that the above contention is

justified. The compensation for loss of earnings and permanent

disability has to be arrived at on the basis of a notional monthly

income of Rs.8,000/-. According to the counsel, the Tribunal ought

to have allowed at least the earnings for six months as M.A.C.A.No.2256/2014

compensation for loss of earnings as against the period of three

months granted, in view of the serious nature of the injuries and

disability suffered and the fact that after discharge he had to

continue medication as an outpatient for three months. The above

claim is also justified. The further claim is that the income ought to

be increased by 25% towards future prospects. Even though the

counsel for the insurer submitted that there is no evidence

regarding functional disability affecting future prospects, I am of

the opinion that the contention of the counsel for the appellant is

also fully justified in view of the nature of the injuries and the

several judicial pronouncements by the Apex Court and this Court

on the subject. The counsel for the appellant points out that a

reasonable amount of Rs.4,800/- was claimed towards

transportation expenses, which was reduced by the Tribunal to

Rs.4,000/- for no reason at all. It is contended that the Tribunal

without any justifiable reason scaled down the disability of 30%

assessed by the Medical Board to 15%. It is submitted that the

compensation for permanent disability has to be modified. The

above two contentions are also fully justified. Regarding the claim

for compensation for disfiguration, the Tribunal has not granted

any amount under the said head. Disfiguration can be brought M.A.C.A.No.2256/2014

under the head loss of amenities (See National Insurance

Co.Ltd. v. Anoopkumar 2014(1)KLT 266). The appellant had

claimed Rs.30,000/- towards loss of amenities and the Tribunal

had granted Rs.20,000/- under that head. Interests of justice will

be served if the appellant is awarded compensation for loss of

amenites as claimed. I am of the opinion that the amounts

awarded under the other heads are reasonable and do not need

any modification.

5. The appellant will hence be entitled to a sum of

Rs.48,000/- towards loss of earnings. After deducting the amount

of Rs.12,000/- awarded, the appellant will be entitled to an

additional compensation of Rs.36,000/- under that head. The

amount awarded for transportation is enhanced by Rs.800/-. The

amount awarded towards loss of amenities is enhanced by a sum

of Rs.10,000/-. The amount payable towards compensation for

permanent disability is to be modified as Rs.5,40,000/-

(8000x125%x12x15x30%). After deducting the amount of

Rs.1,08,000/- awarded by the Tribunal, the appellant is entitled to

enhanced compensation of Rs.4,32,000/-.

6. In the result, the appeal is allowed. The compensation

granted by the Tribunal is enhanced by a further sum of M.A.C.A.No.2256/2014

Rs.4,78,800/- (Rupees Four lakhs Seventy Eight Thousand

Eight Hundred only) with interest at 9% per annum on the

enhanced compensation from 7.10.2009 till the date of realisation,

with proportionate costs. The respondent shall deposit the

additional compensation granted in this appeal along with the

interest and proportionate costs, before the Tribunal within two

months from the date of receipt of a certified copy of this

judgment, after deducting any amount to which the appellant is

liable towards balance court fee and legal benefit fund. The

disbursement of the compensation to the appellant shall be in

accordance with law.

Sd/-

T.R. RAVI JUDGE

dsn