Kerala High Court
Binson Babu vs Abraham John (Deleted) on 7 September, 2021
M.A.C.A.No.1287 of 2013 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
MACA NO. 1287 OF 2013
AGAINST THE AWARD DATED 09.01.2013 IN OP(MV) NO.1322/2010 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM
APPELLANT/PETITIONER:
BINSON BABU
RESIDING AT ONASSERIL HOUSE,
AMALAGIRI P O, KOTTAYAM DIST.
BY ADVS.
SRI.T.C.SURESH MENON
SRI.A.R.NIMOD
RESPONDENTS/RESPONDENTS:
1 ABRAHAM JOHN *(DELETED)
RESIDING AT T.C. 32/1046, CHALUMULLU,
ALL SAINTS JUNCTION, THIRUVANANTHAPURAM-695010
2 JINO JOJAN *(DELETED)
RESIDING AT VETTIKKATTU(VIJAYA BHAVAN) KUTTAPUZHA,
THIRUVALLA-689103
(RESPONDENT NO 1 AND 2 ARE DELETED FROM PARTY ARRAY
AT THE RISK OF THE APPELLANT VIDE ORDER DATED
7/04/2021 IN IA 1/2021 IN MACA 1287/2013)
3 THE UNITED INDIA INSURANCE COMPANY LTD
KOTTAYAM-686001
R3 BY ADV SMT.S.JAYASREE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.08.2021, THE COURT ON 07.09.2021 DELIVERED THE
FOLLOWING:
M.A.C.A.No.1287 of 2013 2
T.R.RAVI, J.
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M.A.C.A.No.1287 of 2013
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Dated this the 7th day of September, 2021
JUDGMENT
The case of the appellant is that while he was riding a motor
cycle with his cousin on pillion, on 13.2.2010, they were knocked
down by a speeding car which was being driven in a rash and
negligent manner by the 2nd respondent. The appellant sustained
serious injuries. He was taken to the S.H.Medical Centre,
Nagampadam and from there he was referred to the Chazhikattu
Hospital, Thodupuzha where he continued treatment for his
injuries. The injuries sustained by the appellant were comminuted
fracture of right acetabulum, fracture of neck of right femur,
fracture of inferiour ramus of right pubis, undisplaced fracture of
right sacral ala at SI vetebral level, multiple bilateral rib fractures,
abrasions and contusions all over the body and acute body pain. He
was hospitalised from 13.2.2010 to 9.3.2010 (24 days). The
Medical Board constituted by the Superintendent of the Medical
College Hospital, Kottayam assessed that he is suffering from
28.78% permanent disability. The 1st respondent was the owner of
the offending vehicle and the 3rd respondent was the insurer.
2. The appellant preferred the claim contending that he was
working as a Supervisor in a hotel at the time of the accident and
was earning a monthly income of Rs.4,900/- along with free food. A
sum of Rs.5,50,000/- was claimed towards compensation. The 3 rd
respondent contested the claim and contended that the claim was
excessive and that the accident occurred due to the negligence of
the appellant. Exhibits A1 to A22 and Ext.X1 disability certificate
were marked. The Tribunal granted a total compensation of
Rs.3,42,275/-. The appellant has filed this appeal seeking
enhancement of the compensation granted by the Tribunal.
3. Heard Sri Nimod A.R. on behalf of the appellant and
Smt.S.Jayasree on behalf of the 3rd respondent.
4. The first contention of the appellant is that the notional
income fixed by the Tribunal was very low. The accident happened
on 13.2.2010. The appellant had produced Ext.A12 certificate to
show his monthly income as Rs.4,900/-, but the Tribunal did not
accept the same since the person who issued the certificate was not
examined and the wages register, muster roll or vouchers were not
produced. The Tribunal proceeded to fix the notional income as
Rs.4,000/-. Relying on the decision of the Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Co.Ltd., reported in [AIR 2011 SC 2951], it is
contended that since the accident occurred 6 years after the
accident in Ramachandrappa (supra), the Tribunal ought to have
fixed the notional income at least at Rs.4,900/- claimed by the
appellant. The second contention of the appellant is that the
Tribunal without any reason whatsoever, scaled down the disbility of
28.75% found by the Medical Board to 16%. The third
contention of the appellant is that the Tribunal has calculated the
compensation treating the age of the appellant as 27 instead of 25.
Ext.A10 shows that the date of birth of the appellant is 09.5.1985
and on the date of the accident he was aged 24 years, 9 months
and 4 days. It is hence contended that the multiplier adopted ought
to have been 18. The fourth contention of the appellant is that,
having regard to the age of the appellant at the time of the
accident, the serious nature of the injuries suffered by him and the
permanent disability assessed by the Medical Board, the Tribunal
ought to have granted additional amounts for loss of future
prospects. The fifth contention of the appellant is that the amounts
granted by the Tribunal under the heads "pain and suffering" and
"loss of amenities" are very low and are liable to be increased in
accordance with the seriousness of the injury.
5. The counsel appearing for the insurer fairly submitted
that in the light of the law laid down by the Hon'ble Supreme Court,
the claim of the appellant regarding the notional income and
disability assessed by the Medical Board are liable to be granted.
However, the counsel submitted that the appellant who had not
suffered serious disability cannot be granted compensation towards
loss of future prospects as claimed by him.
6. The claim made by the appellant under different heads of
compensation, and the amount which has been awarded by the
Tribunal are shown in the form of a table:
Sl. Head of the Claim Amount Amount
No. Claimed(Rs.) Awarded(Rs.)
1 Transportation Rs.10,000/- Rs.4,500/-
2 Extra Nourishment Rs.7,000/- Rs.6,075/-
3 Damage to clothings Rs.2,000/- Rs.500/-
4 Bystander expenses Rs.16,000/- Rs.4,600/-
5 Medical Expenses Rs.1,50,000/- Rs.1,08,040/-
6 Loss of earning Rs.44,100/- Rs.28,000/-
(4000x7)
7 Pain and Sufferings Rs.50,000/- Rs.35,000/-
8 Loss of amenities Rs.30,000/- Rs.25,000/-
9 Permanent Disability Rs.2,00,000/- Rs.1,30,560/-
(4000x12x16x
17/100)
10 For bleak prospects Rs.50,000/- NIL
of marriage
Total Rs.5,59,100/- Rs.3,42,275/-
limited to
Rs.5,50,000/-
7. I have considered the contentions of the appellant and
the respondent. Following the dictum laid down in
Ramachandrappa, I am of the opinion that the appellant is entitled
to have the notional income fixed as Rs.4,900/- and consequential
changes are to be made in the compensation to be granted under
various heads. In Pappu Deo Yadav v. Naresh Kumar and
others (AIR 2020 SC 4424), a data entry operator who lost a
limb and whose permanent disability was assessed at 65% was
granted an addition of 40% towards future prospects. In Erudhaya
Priya v. State Express Transport Corporation Ltd., reported in
[2020 SCC OnLine SC 601], the victim whose permanent
disability was assessed at 31.1% was granted 50% increase in the
income assessed, towards future prospects. In the judgment in
M.A.C.A.No.1860 of 2015, a Division Bench of this Court upheld the
grant of 30% increase towards future prospects in the case of a
farm worker, who was 46 years old and suffered 8% permanent
disability. It has been held time and again by the Hon'ble Supreme
Court that "just compensation" is to include all elements that would
go to place the victim in as near a position as she or he was in,
before the occurrence of the accident. Applying the above
principles, I am of the opinion that the appellant who has been
assessed to have 28.75% permanent disability, who was only 25
years old at the time of the accident and had suffered very serious
injuries involving his spine, hip and thigh, and was kept out of
employment according to the Tribunal for atleast 7 months, is
entitled to be granted 40% increase towards loss of future
prospects. The notional income to be taken into account for
arriving at the compensation towards permanent disability would
then be Rs.6,860/-. I am of the opinion that the Tribunal has
granted just compensation as regards the other heads of
compensation.
8. In the light of the above findings, the compensation
awarded by the Tribunal is liable to be enhanced and modified in
the manner shown in the table below:
Sl. Head of the Amount Amount Amount as
No. Claim Claimed(Rs.) Awarded(Rs.) modified by this
Court(Rs.)
1 Transportation Rs.10,000/- Rs.4,500/- Rs.4,500/-
2 Extra Rs.7,000/- Rs.6,075/- Rs.6,075/-
Nourishment
3 Damage to Rs.2,000/- Rs.500/- Rs.500/-
clothings
4 Bystander Rs.16,000/- Rs.4,600/- Rs.4,600/-
expenses
5 Medical Expenses Rs.1,50,000/- Rs.1,08,040/- Rs.1,08,040/-
6 Loss of earning Rs.44,100/- Rs.28,000/- Rs.34,300/-
(4000x7) (4900x7)
7 Pain and Rs.50,000/- Rs.35,000/- Rs.35,000/-
Sufferings
8 Loss of amenities Rs.30,000/- Rs.25,000/- Rs.25,000/-
9 Permanent Rs.2,00,000/- Rs.1,30,560/- Rs.4,26,006/-
Disability (4000x12x16 (6860x12x18x
x17/100) 28.75/100)
10 For bleak Rs.50,000/- NIL NIL
prospects of
marriage
Total Rs.5,59,100/- Rs.3,42,275/- Rs.6,44,021/-
limited to
Rs.5,50,000/-
9. Even though the appellant had claimed a sum of
Rs.5,59,100/- and restricted the claim to Rs.5,50,000/-, I find that
he is entitled to a just compensation of Rs.6,44,021/- in the light of
the reasonings stated above. It is well settled that there is no
restriction in awarding a compensation more than the amount
claimed in the claim petition.[See Nagappa v. Gurudayal Singh
2003(1)KLT 115(SC)].
10. In the result, the appeal is allowed. The compensation
granted by the Tribunal is enhanced by a further sum of
Rs.3,01,746/- (Rupees Three lakhs One Thousand Seven
Hundred and Forty Six only) with interest at 9% per annum on
the enhanced compensation from 18.01.2011 till the date of
realisation, with proportionate costs. The 3 rd 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
