Joby Andrews vs Dr.Mathew Abraham
2022 Latest Caselaw 6225 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
          THE HONOURABLE MR.JUSTICE BASANT BALAJI
   FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                   MACA NO. 2037 OF 2018
 OPMV 1588/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/S:

         JOBY ANDREWS, S/O.E.M.ANTHRAYOSE, IDATHARA
         MOOLAYIL, NALUNAKKAL P.O., VAKATHANAM,
         CHANGANACHERRY, KOTTAYAM.
         BY ADVS.
         SRI.PHILIP T.VARGHESE
         SMT.ACHU SUBHA ABRAHAM
         SRI.ARJUN SATHISH KUMAR
         SRI.THOMAS T.VARGHESE


RESPONDENT/S:

    1    DR.MATHEW ABRAHAM, PATHIYAPALLIL, NJALIYAKUZHY
         BHAGOM, VAKATHANAM P.O.,
         CHANGANACHERRY - 686538.
    2    FUTURE GENERALI INDIA INSURANCE CO. LTD.,
         IV/278B, VETTEL ESTATE,
         KANJIKUZHY,
         KOTTAYAM - 686004.

         *.The cause title is amended by correcting the
         status of the insurer as the 2nd respondent
         instead of the 3rd respondent as per order dated
         11.10.19 in Ia 1/18 in MACA 2037/2018.
OTHER PRESENT:

         ADV. AKHIL K. MADHAV
         ADV.THOMAS M JACOB -R2


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 2037 OF 2018

                                  -2-




                            JUDGMENT

(Dated this the 3rd day of June 2022)

Being dissatisfied with the compensation awarded in

O.P. (M.V.) No.1588 of 2014 on the files of the Motor

Accidents Claims Tribunal, Kottayam, the petitioner has

filed this appeal.

2. The case of the petitioner is as follows: On

11.6.2014 at about 17.30 hrs., while the appellant was

riding his motor cyle bearing reg.No.33/A-1841 through

Thengana - Njaliyakuzhy road from south to north

direction, he gave signal to turn towards right to enter into

Kurumbanadam public road and while turning towards

right, he was hit by a car. The car was driven by the first

respondent in excessive speed. The appellant sustained

grievous injuries and was immediately taken to Medical

College Hospital, Kottayam and thereafter, to Matha MACA NO. 2037 OF 2018

Hospital, Thellakom. He was admitted in Medical Trust

Hospital, Kochi as inpatient from 13.6.2014 to 14.7.2014.

He was again admitted on 28.7.2014 for further treatment

and was discharged on 4.8.2014.

3. The appellant was conducting a business in the

name of St. George Agencies providing building materials

and was earning a monthly income of Rs.15,000/- at the

time of accident. He had also obtained Trade Certificate in

the trade Draftsman-Civil and had work experience for six

years under Chartered Engineer and approved valuer. He is

also a qualified Nurse and midwife. The disability assessed

by the Medical Board was 31.27%. The appellant claimed

a compensation of Rs.30,58,000/-.

4. The first respondent entered appearance and filed

a written statement contending that the petition is not

maintainable. The amount claimed is highly excessive. He MACA NO. 2037 OF 2018

has denied the fact that he was driving the car in a rash and

negligent manner.

5. The 2nd respondent filed a written statement

contending that the amount claimed is highly excessive and

admitted that the vehicle was insured with the respondent at

the time of the accident.

6. The Tribunal, relying on Exts.A1 to A21 and

Exts.B1 to B2 and X1, awarded a compensation of

Rs.15,42,250/- with 9% interest. Aggrieved by the same,

this appeal is filed.

7. The counsel for the appellant submitted that the

appellant was earning an income of Rs.15,000/- per month.

But the Tribunal fixed the notional income of the appellant

at Rs.12,000/- per month only. The appellant is a qualified

Draftsman and also a qualified Nurse. Hence, the Tribunal

was not justified in reducing the monthly income from MACA NO. 2037 OF 2018

Rs.15,000/- to Rs.12,000/-.

8. The counsel for the Insurance Company/2nd

respondent submitted that when there is no proof to the

income of the appellant, the Tribunal was justified in taking

the notional income of the appellant as Rs.12,000/-, relying

on the decision reported in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Limited [2011 (13) SCC 236]. The counsel for

the appellant submits that the compensation ought to have

increased on various heads taking into consideration the

income as Rs.15,000/-.

9. Heard.

10. There is evidence to show that the appellant is a

qualified Draftsman and qualified Nurse and also he had

undergone short terms courses evidenced from Exts.A1

series and started business in the year 2006 evidenced from MACA NO. 2037 OF 2018

Ext.A18 to A19 documents. When there is evidence before

the court that he was a qualified Draftsman and a qualified

nurse, the notional income ought not have been taken by

the Tribunal as Rs.12,000/-. The appellant has claimed

only Rs.15,000/- as his monthly income and in that case,

the Tribunal ought to have taken the monthly income as

Rs.15,000/- per month. Taking the monthly income of the

appellant as Rs.15,000/- the compensation for loss of

earning can be re-worked as Rs.15,000 x 10 =

Rs.1,50,000/-. Deducting the compensation awarded, the

appellant is entitled to the balance amount of Rs.30,000/-

(1,50,000 - 1,20,000) under the head.

11. Towards compensation for pain and suffering, the

appellant claimed Rs.3,00,000/-. The appellant sustained

injuries such as fracture shaft of left femur, fracture

proximal phalanx of left great toe with extrinsic wound left MACA NO. 2037 OF 2018

leg and left foot, degloving injury left lower leg and foot

and deformity left thigh. Hence, I am inclined to enhance

the compensation under the head compensation for pain

and suffering from Rs.60,000/- to Rs.1,00,000/- . The

difference will be, 1,00,000 - 60,000 = Rs.40,000/- towards

the same.

12. Taking into consideration of the injuries sustained

by the appellant, I am inclined to enhance the compensation

towards loss of amenities as Rs.75,000/- from Rs.50,000/-.

The appellant would be entitled to the balance amount of

Rs.25,000/- under the head.

13. The Tribunal, taking the monthly income as

Rs.12,000/-, has granted Rs.7,20,500/- Towards loss of

permanent disability. When the income is taken as

Rs.15,000/-, the compensation for loss of permanent

disability would be worked as 15,000 x 12 x 31.27 x MACA NO. 2037 OF 2018

16/100 = Rs.9,00,576/-, less the amount awarded by the

Tribunal - 9,00,576 - 720500 = Rs.1,80,076/-. Thus the

total enhanced compensation would be 180076 + 25000 +

40000+ 30000 = Rs.2,75,076/-.

In the result, the appeal is allowed and the appellant is

entitled to the enhanced compensation of Rs.2,75,076/-

(Rupees two lakh seventy five thousand and seventy six

only) with 8% interest from the date of award till

realisation.

sd

BASANT BALAJI, JUDGE dl/