Kerala High Court
Shaji Thomas vs Haridasan Nair on 17 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
MACA NO. 2340 OF 2012
AGAINST THE AWARD DTD.08.03.2012 IN OP(MV) No.203/2008 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/PETITIONER:
SHAJI THOMAS
S/O. ITTY IPE, VELLUTHOTTAM HOUSE, NOW RESIDING AT
KOCHUPURACKAL HOUSE, MANGANAM KARA, VAKATHANAM
VILLAGE, KOTTAYAM.
BY ADV SRI.B.SAINU
RESPONDENTS/RESPONDENTS:
1 HARIDHASAN NAIR
S/O. DAMODHARAN NAIR, VAKKAPURATHU PADINJARATHIL,
ETTUMANOOR KARA, ETTUMANOOR VILLAGE - 686 631.
2 UNNIKRISHNAN NAIR,
S/O. PARAMESWARAN NAIR, LAKSHMI NIVAS, CHAMPAKARA
P.O, KARUKACHAL - 686 540.
3 THE NEW INDIA ASSURANCE COMPANY LIMITED
KOTTAYAM- 686 001.
BY ADVS.
SRI.LAL K.JOSEPH
SRI.KKM.SHERIF
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA No.2340 of 2012 2
SOPHY THOMAS, J.
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M.A.C.A No.2340 of 2012
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Dated this the 17th day of June, 2022
JUDGMENT
This appeal has been preferred by the claimant in
O.P (M.V) No.203 of 2008 on the file of MACT, Kottayam,
challenging the quantum of compensation awarded under various
heads.
2. The appellant met with a road traffic accident on
23.01.2007 at 5 p.m, while he was riding his motorcycle No.KEK
307 along Puthupally-Kanjikuzhy road. KL 5/C 1247 bus driven
by the 1st respondent in a rash and negligent manner dashed
against his motorcycle and he was thrown down. He was rushed
to Matha Hospital, Thellakom and was treated there as an
inpatient. The 2nd respondent was the owner of the bus and the
3rd respondent was its insurer. Against his claim of Rs.5,00,000/-,
the Tribunal awarded only Rs.1,66,030/-, even though he had
suffered type II compound comminuted fracture, both bones of
right leg upper one third and permanent disability of 18%. The
Tribunal considered only 4% disability for the claimant and his
notional income was taken as Rs.4,000/- only, though he was
working as a Sales Executive of Aswathi Engineering Works and
also an Assistant in the Diocese of CSI Church drawing monthly
income of Rs.5,000/-. Challenging the quantum of compensation,
the appellant has come up with this appeal.
3. The 3rd respondent/insurer is not disputing the accident
and is admitting the insurance policy of the offending bus. But,
according to them, the compensation awarded by the Tribunal is
'just' and it needs no interference.
4. Now let us see whether there is any illegality or
impropriety in the award impugned, warranting interference by
the appellate court.
5. The accident was in the year 2007 and the injured was
aged only 45 years at the time of accident. According to the
appellant, he was working as a Sales Executive of Aswathi
Engineering Works and he was an Assistant also in the Diocese of
CSI Church drawing an additional income of Rs.5,000/- per
month. Even then his monthly income was notionally fixed @
Rs.4,000/- only by the Tribunal. Going by the decision
Ramchandrappa vs. Manager, Royal Sundaram Aliance
Insurance Company Limited (AIR 2011 SC 2951), even a
vegetable vendor was eligible to get his notional income fixed @
Rs.6,000/- per month in the year 2007. Learned counsel for the
3rd respondent/insurer is amenable for fixing the notional income
of the appellant at Rs.6,000/- per month.
6. Regarding the disability part, according to appellant, he
had suffered 18% disability but the Tribunal assessed his disability
only at 4%. Only the certificate was produced, and the doctor
who issued the same was not examined by the appellant to prove
it before court. It is not a certificate issued by the Medical Board
also. Moreover, even the appellant did not enter the box to prove
the disability suffered by him in the given accident. So, no
materials are available, to enter into a finding that the appellant
had suffered disability exceeding 4%.
7. Since the appellant had suffered type II compound
comminuted fracture both bones of right leg upper one third and
hospitalised for 17 days, towards pain and sufferings, the amount
awarded i.e. Rs.23,000/- seems to be on the lesser side.
Considering the injuries he had suffered and hospitalisation
undergone, Rs.30,000/- could have been awarded towards pain
and sufferings. So, he is entitled to get Rs.7,000/- more under
that head. Towards bystander expenses, only Rs.200/- per day
was given for 17 days of hospitalisation. Since both bones of his
right leg were fractured, even after discharge he could have been
in need of a bystander for his basic needs. At least for one
month, he should have been pulling on with the help of a
bystander. Rs.200/- per day awarded by the Tribunal is quite
meager, and the appellant is entitled to get Rs.500/- per day for
30 days towards bystander expenses which will come to
Rs.15,000/-. He was already given Rs.3,400/- and so, he is
entitled to get the balance amount of Rs.11,600/- under that
head. Towards loss of earning, he was given Rs.24,000/- @
Rs.4,000/- per month for six months. He was eligible to fix his
notional income at the rate of Rs.6,000/- and considering the
nature of injury he had suffered, he might not have been able to
go for work at least for ten months. So, towards loss of earning,
he was eligible to get Rs.60,000/-. He was already paid
Rs.24,000/- under that head. So he is eligible to get the
difference of Rs.36,000/- under the head 'loss of earning'.
8. Towards loss of amenities, he was given only Rs.13,000/-
against his claim of Rs.25,000/-. As he had suffered type II
compound comminuted fracture both bones of right leg upper one
third and also permanent disability of 4% which will definitely
affect his quality and enjoyment of life, he was eligible to get
Rs.25,000/- towards loss of amenities. He was already paid
Rs.13,000/- and so he is eligible to get the balance Rs.12,000/-
under that head.
9. While assessing damages for permanent disability, his
notional income was taken at Rs.4,000/-. Since we have fixed his
notional income @ Rs.6,000/- per month, the compensation under
that head can be assessed as Rs.40,320/- (6000x12x4x14/100).
Since he was already paid Rs.26,880/-, he is eligible to get the
balance amount of Rs.13,440/- towards compensation for
permanent disability.
10. In all other counts, the compensation awarded seems to
be reasonable and it requires no modification.
In the result, the appellant is entitled to get
enhanced compensation of Rs.80,040/-(7000+11600+36000+
12000+ 13440). The 3rd respondent/insurer is directed to deposit
the enhanced compensation in the bank account of the appellant
with interest @ 9% from the date of petition till the date of
deposit 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 deducing the liabilities if any of the appellant
towards tax, balance court fee and legal benefit fund.
The appeal is allowed accordingly. No order as to costs.
Sd/-
SOPHY THOMAS
JUDGE
smp
