Kerala High Court
Anil Kumar vs National Insurance Company on 26 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
MACA NO. 1520 OF 2013
OP(MV)NO.513/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM
APPELLANT/PETITIONER:
ANIL KUMAR
S/O.RAMACHANDRAN NAIR, CHAITHANYA, ERAVICHIRA EAST,
SOORANADU P.O., KUNNATHOOR TALUK, KOLLAM DISTRICT.
BY ADV SRI.PRATHEESH.P
RESPONDENT/3RD RESPONDENT:
1 NATIONAL INSURANCE COMPANY,
KOLLAM-691001.
*2 ADDITIONAL RESPONDENT NO.2 IMPLEADED:
ALEXANDER THOMAS, SHEELA COTTAGE, AYATHIL P.O.,
KOLLAM-691 017.
* IS IMPLEADED AS ADDITIONAL RESPONDENT NO.2 AS PER ORDER
DATED 07.08.2013 IN I.A.NO.2115/2013 IN MACA NO.1520/2013.
BY ADV SMT.DEEPA GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 23.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING:
MACA 1520 of 2013 2
JUDGMENT
This appeal has been preferred by the claimant in
OP(MV)No.513 of 2010 on the file of Motor Accidents Claims
Tribunal, Kollam. He is challenging the inadequacy of the
compensation awarded by the Tribunal.
2. On 6.02.2010 at 8.30 p.m., the appellant suffered a
road traffic accident, while he was walking through Patharam
- Malumel public road. KL-2/AB-8324 motorcycle ridden by
the 2nd respondent in a rash and negligent manner, knocked
him down and he sustained various injuries, for which he
was admitted in hospital for more than one month. He was
a 55 year old retired military person earning monthly income
of Rs.3,000/-. Due to the head injury he had suffered, he is
not able to do any work. He approached the Tribunal
claiming compensation of Rs.2,50,000/-. But the Tribunal
awarded only Rs.51,500 and that is under challenge.
3. The accident, injuries and the policy are not
disputed by the Insurer. The owner of the offending vehicle
was impleaded as additional 2nd respondent in the appeal.
4. According to the appellant, he was a retired military
person earning monthly income of Rs.6,000/-. But the
Tribunal took his income as Rs.3,000/- only. As per the
decision Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [AIR 2011 SC
2951], he was eligible to get his income fixed at Rs.7,500/-
as the accident was in the year 2010. But, since his case
was that, his monthly income was only Rs.6,000/-, it could
be taken as such without any further enhancement. The
Tribunal took his loss of earning for a period of three months
@ Rs.3,000/- per month. Since we have fixed his notional
income as Rs.6,000/- per month, towards loss of earning, he
was eligible to get Rs.18,000/-. Deducting Rs.9,000/-
already awarded, he is entitled to get Rs.9,000/- as
enhanced compensation towards loss of earning.
5. Towards bystander expenses, he was given Rs.150/-
per day. Since the accident was in the year 2010 and he was
hospitalised for 36 days, Rs.500/- per day could have been
awarded for 36 days of hospitalisation. So, he was eligible
to get Rs.18,000/- and deducting Rs.5,400/- already paid,
he is eligible to get Rs.12,600/- as enhanced compensation
for bystander expenses.
6. Towards extra nourishment, he was awarded only
Rs.1,000/- and that is too low. There was hospitalisation for
36 days and this Court is inclined to award Rs.2,000/- more
towards extra nourishment.
7. Towards pain and suffering, he was awarded
Rs.15,000/- only. Considering the nature of injuries suffered
and period of hospitalisation, Rs.10,000/- more is only
reasonable.
8. The Tribunal awarded compensation for permanent
disability taking his disability as 4% though there was no
medical evidence to prove the disability aspect. Pending
appeal, as per order in I.A.No.2050 of 2013, this Court
referred the appellant to Medical Board of Medical College
Hospital, Thiruvananthapuram, to assess his disability, if any,
the extent to which it is affecting his earning capacity etc.
The Medical Board, after examining the appellant issued
Disability Certificate and that is on board. That certificate
shows that as on 04.10.2013, the appellant was having 30%
disability as he was having organic mood disorder (following
the RTA), decrease tone and tempo of speech, depressed
mood and inability to sustain attention. The Board has
reported that he is expected to recover completely and he
needs follow up care and reassessment of disability after a
period of one year. The disability noted was temporary and
partial and it can cause mild impairment in carrying out his
day to day activities. There is no evidence to show that the
appellant reassessed his disability after a period of one year.
The Disability Certificate issued by the Board was dated
04.10.2013. Now we are in 2022 ie. 9 years elapsed after
the disability assessed by the Board. Since the Medical
Board reported that he was expected to recover completely
and the disability was temporary and partial, at present this
Court is not able to accept his disability as 30%, which was
assessed 10 years ago. So, his disability for the purpose of
assessing loss of earning capacity is taken as 20%. We have
taken the monthly income of the appellant as Rs.6,000/-.
Since he was aged 55 years on the date of accident, the
multiplier applicable is 11. So, the compensation for
permanent disability could be assessed as Rs.1,58,400/-
(6000X12X11X20/100). He was already paid Rs.15,840/-
towards permanent disability. So he is eligible to get
Rs.1,42,560/- as enhanced compensation for permanent
disability.
Head of claim Amount Amount Difference to be
awarded by awarded in drawn as
the Tribunal appeal enhanced
compensation
Loss of earning Rs.9,000/- Rs.18,000/- Rs.9,000 /-
Bystander Rs.5,400/- Rs.18,000/- Rs.12,600/-
expenses
Extra Rs.1,000/- Rs.3,000/- Rs.2,000/-
nourishment
Pain and Rs.15,000/- Rs.25,000/- Rs.10,000/-
suffering
Permanent
disability Rs.15,840/- Rs.1,58,400/- Rs.1,42,560/-
Total Rs.1,76,160/-
9. In all other heads, the compensation awarded
seems to be reasonable .
10. In the result, appellant is entitled to get enhanced
compensation of Rs.1,76,160/- (9,000 + 12,600 + 2,000 +
10,000 + 1,42,560) (Rupees One Lakh Seventy Six
Thousand One Hundred and Sixty only).
11. The 1st respondent-Insurer is admitting the policy
but according to them, the rider had no valid Driving Licence
to drive the motorcycle. So the Insurer is not liable to
indemnify the insured. But since the policy is admitted, the
1st respondent-Insurer is directed to deposit enhanced
compensation of Rs.1,76,160/- in the Bank account of the
appellant with 7.5% interest from the date of petition till
realisation, 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 deducting
the liabilities, if any, of the appellant towards Tax, balance
court fee and legal benefit fund. After depositing the
amount, the 1st respondent-Insurer shall recover that
amount from the additional 2nd respondent owner.
The appeal is allowed accordingly. No order as to
costs.
Sd/-
SOPHY THOMAS,
JUDGE
DSV/25.08.2022
