Anoop Krishnan S/O.Gopalan Nair vs Pradeep S/O.Kumaran
2021 Latest Caselaw 21895 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR. JUSTICE T.R.RAVI
     WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                         MACA NO. 775 OF 2015
  AGAINST THE AWARD IN OPMV 264/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL
                        MUVATTUPUZHA, ERNAKULAM

APPELLANT/PETITIONER:
           ANOOPKRISHNAN S/O.GOPALAN NAIR
           RESIDING AT THEKEDETHUPUTHENPURAYIL HOUSE,
           THANKALAM KARA, THRIKARIYOOR VILLAGE,
           KOTHAMANGALAM.
           BY ADVS.SMT.ANEY PAUL
           SRI.PHILIP J.VETTICKATTU

RESPONDENTS/RESPONDENTS:
     1     PRADEEP, S/O.KUMARAN
           HOUSE NO.6/69, MANAMKANDAM HOUSE,
           ALLATUCHIRA, KOMPANAD,
           PERUMBAVOOR-683 542.
    2      BASIL MATHEW
           THULIKULAM HOUSE, IRINGOLE P.O.,
           PERUMBAVOOR-683 545.
    3      MUNEER,S/O.SAIDU, VALLEKKATTU HOUSE,
           THRIKKALATHOOR P.O., MUVATUPUZHA-686 661.
    4      M/S.NATIONAL INSURANCE COMPANY LTD
           MULLAPOLLY BUILDINGS, A.M.ROAD,
           PERUMBAVOOR-683 542.
    5      BHASKARAN
           MARAMATTATHU HOUSE, THRIKKARIYOOR,
           KOTHAMANGALAM-686 691.
    *6     AJESH KUMAR,S/O.BHASKARAN, MARAMATTATHU OUSE,
           THRIKKARIYOOR, KOTHAMANGALAM-686 691. ( DELETED)
           *RESPONDENT NO. 6 DELETED
           RESPONDENT NO.6 IS DELETED FROM THE PARTY ARRAY AT THE
           RISK OF THE APPELLANT AS PER ORDER DATED 04/08/2020 IN
           I.A.NO.1/2020 IN MACA NO. 775/2015.
    7      MS.ORIENTAL INSURANCE COMPANY LTD
           KOTHAMANGALAM-686 691.
           BY ADVS.SRI.GEORGE CHERIAN (SR.)
           SMT.K.S.SANTHI

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
07.10.2021, THE COURT ON 03.11.2021 DELIVERED THE FOLLOWING:
 M.A.C.A. No.775 of 2015                  2



                            T.R. RAVI, J.
             --------------------------------------------
                      M.A.C.A. No.775 of 2015
              --------------------------------------------
             Dated this the 3rd day of November, 2021

                             JUDGMENT

On 16.1.2011, when the appellant was riding as a pillion in a

motorcycle ridden by the 6th respondent, they were hit by a Maruti

Omni driven by the 3rd respondent in a rash and negligent manner.

The appellant was seriously injured. He preferred a claim petition

before the Tribunal. The Tribunal awarded a sum of Rs. 4,57,000/-

as compensation. Aggrieved by the award, the appellant has

preferred this appeal seeking enhancement of the compensation.

2. The appellant was aged 21 years at the time of accident.

He claimed to have been working as a plumber, earning Rs.6,000/-

per month. He was hospitalised for a total number of 72 days

spread over the period from 16.1.2011 to 29.11.2012. The counsel

for the appellant pointed out that the Tribunal went wrong in

adopting a notional monthly income of Rs.4,000/- and adopting the

multiplier of '17' instead of '18' for arriving at the compensation for

permanent disability. It is also submitted that the Tribunal wrongly

calculated compensation for loss of earnings on the basis of

hospitalisation for 40 days, while as a matter of fact, he was

hospitalised for 72 days, which is evident from Exhibits A6 to A9.

The counsel submits that the compensation towards expenses of

bystander and extra nourishment should have been awarded at the

rate of Rs.200/- and 150/- per day for the 72 days of

hospitalisation. It is also claimed that the amount awarded towards

loss of amenities is very less considering the fact that the appellant

had to be hospitalised for 72 days and had suffered a permanent

disability of 24%, as assessed by the Medical Board. It was also

claimed that suitable amount should be increased towards future

prospects. The counsel for the insurer submitted that the Tribunal

has awarded just and fair compensation and no changes are

required. It is however fairly submitted that the notional income of

Rs.4,000/- adopted by the Tribunal does not appear to be justified

in view of the binding precedents and that the multiplier ought to

have been '18' going by the dictum laid down in Sarla Verma vs

Delhi Transport Corporation and others [2010 (2) KLT 802].

3. Having considered the contentions on either side, I am of

the opinion that the appellant is entitled to enhancement of the

compensation awarded. In view of the dictum in Ramachandrappa

v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.,

reported in [AIR 2011 SC 2951], there is no justification for

reducing the claim of monthly income of Rs.6,000/-. So also, the

number of days of hospitalisation is wrongly taken as 40 instead of

72, which is evident from Exhibit A9. Since the hospitalisation was

spread over two years, I am of the opinion that the loss of earnings

should be granted for a period of one year instead of 8 months. On

going through the disability certificate produced as Exhibit C1, it is

seen that the appellant had suffered serious injuries, as a result of

which he is unable to flex his right knee, and there is a shortening

of the right thigh femur by 5 cm. It is also observed that the

condylar intercondylar fracture of the right femur is mal-united and

that the right knee movements are ankylosed. It is well settled that

grant of future prospects would depend on the nature of the injury

and the manner in which it would affect their job prospects. Even

though the disability is assessed at 24%, considering the nature of

the disability, I am of the view that it would affect the appellant in

the job that he was carrying on. I am of the opinion that the

appellant is entitled to an increase of 20% towards future prospects

on the monthly income. In view of the disability suffered as a result

of the accident, I am of the opinion that there is no reason to

reduce the loss of amenities from what was claimed. The appellant

will hence be entitled to a sum of Rs. 72,000/- (6000x12) towards

loss of earnings. After deducting the sum of Rs.32,000/- awarded

by the Tribunal, the appellant will be entitled to an additional

compensation of Rs.40,000/- under the head. The appellant will be

entitled to an additional sum of Rs.5000/- towards loss of

amenities. The appellant will be entitled to a sum of Rs.14,400/-

towards bystanders expenses. After deducting the amount of

Rs.6,000/- awarded by the Tribunal, the appellant will be entitled to

an additional sum of Rs.8,400/- under the head. The appellant will

be entitled to a sum of Rs.10,800/- towards extra nourishment.

After deducting the amount of Rs.4,000/- awarded by the Tribunal,

the appellant will be entitled to an additional sum of Rs.6,800/-

under the head. The appellant will be entitled to a sum of

Rs.3,73,248/-(6000x120%x12x18x24%) towards compensation for

permanent disability. After deducting the amount of Rs.1,95,840/-

granted by the Tribunal, the appellant will be entitled to an

additional sum of Rs.1,77,408/- under the head.

4. In the result, the appeal is allowed. The appellant is

awarded an additional compensation of Rs.2,37,608/- (Rupees

Two Lakhs Thirty Seven Thousand Six Hundred and Eight

only) with interest at the rate of 9% per annum from the date of

filing of the claim petition (28.03.2011) till the date of realisation,

with proportionate costs. The 4 th respondent insurer 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

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