M.K.Ali vs Ajay Kumar And Others
2023 Latest Caselaw 1951 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                         MACA NO. 1078 OF 2010
  AGAINST THE JUDGMENT IN OPMV 449/2005 OF MOTOR ACCIDENT CLAIMS
                           TRIBUNAL , MANJERI
APPELLANT/PETITIONER:

             M.K.ALI, S/O MOHAMMEDALI HAJI,
             MATTARAKKAL KOTOTH HOSUE, KOMBANKALLU, P.O.PATHIRIKODE,
             VIA, MELATTUR,, MALAPPURAM DISTRICT.

             BY ADVS.
             SRI.K.M.SATHYANATHA MENON
             SRI.M.V.ANANDAN



RESPONDENTS/RESPONDENTS:

    1        AJAY KUMAR, S/O APPU
             PUTHUVAL PUTHENVEEDU (TC 43/1370), MUTTATHARA VILLAGE,
             KAMALESWARAM WARD, P.O.VALLAKADAVU,THIRUVANANTHAPURAM.,
             (DRIVER OF THE TEMPO VAN)

    2        MRS.V.RAHUMA BEEVI ,W/O.A.J.ABDUL AZEEZ
             POTTAYIL THUNDU VILAKATHU HOUSE,
             P.O.POOVAR,THIRUVANANTHAPURAM., (OWNER OF THE TEMPO
             VAN)

    3        UNITED INDIA INSURANCE CO.LTD.
             BRANCH OFFICE, "FINANCE HOUSE", 2ND FLOOR,, 19 PATULOS
             ROAD, MADRAS-2(CHENNAI-2), TAMIL NADU STATE.

             BY ADV SRI.P.K.MANOJKUMAR,SC




     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 03.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 1078 OF 2010
                                           2



                                  JUDGMENT

The petitioner in O.P(MV)No.449/2005 on

the files of the Motor Accidents Claims

Tribunal, Manjeri is the appellant in this

appeal.

2. The appellant alleges that the amounts

granted by the Tribunal as compensation are

exiguous, particularly because he had suffered

very grave injuries and also had to undergo

prolonged treatment.

3. Sri.K.M.Sathyanatha Menon - learned

counsel for the appellant, argued that the

amounts granted by the Tribunal under the

heads "Pain and Suffering"; "Dis-Figuration";

"Loss of Earning Power" and "Disability" are

unjust, primarily because the notional income

of his client was taken as Rs.1,500/- instead

of at least Rs.5,000/-, being the actual

income drawn by him. He, therefore, argued MACA NO. 1078 OF 2010

that the amounts granted under the afore heads

require to be revised.

4. Sri.P.K.Manoj Kumar - learned Standing

Counsel for the Insurance Company, on the

other hand, submitted that there is no

evidence on record to establish the income of

the appellant and therefore, that the Tribunal

was without error in having adopted Rs.1,500/-

for such purpose. He, then, argued that the

amounts granted by the Tribunal under various

other heads are also without any error; and

thus prayed that this appeal be dismissed.

5. I have evaluated the afore submissions

and have also gone through the evidence on

record - copies of which were handed over

across the Bar by the learned counsel for the

parties, with the specific consent that it can

be acted upon without any dispute.

6. The factum of the accident is without

dispute, so also the gravity of the injuries MACA NO. 1078 OF 2010

suffered by the appellant.

7. That said, I find force in the

submissions of Sri.P.K.Manoj Kumar, that the

claimant did not lead any evidence to

establish his actual income; and therefore,

am of the view that the Tribunal ought to have

adopted the standardization postulated by the

Hon'ble Supreme Court in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Limited [(2011) 13 SCC 236]. Going by

the ratio of this judgment, the notional

income of the appellant in the year 2000, when

the accident occurred, ought to have been

taken as Rs.2,500/-, rather than Rs.1,500/-,

as has been presently done.

8. Further, going by the undisputed nature

of the injuries - as seen from Ext.A2 Wound

Certificate and Ext.A3 Medical Certificate -

namely, "Lacerated wound 20x10 cm post aspect

of right elbow exposing the fractured bone MACA NO. 1078 OF 2010

gragments, bone and soft tissue Distal pulse.

X-ray shows that right ulna Humerous middle

distal end bone loss, fracture of proximal

ulna right with fracture head of radius with

dislocation" (sic); which also required a

plastic surgery to be suffered by the

appellant to cure his dis-figuration and

implantation, I am certain that the amounts

granted under the heads "Pain and Suffering"

and "Dis-Figuration" are extremely low. I

propose the same to be Rs.25,000/- each; and

record that the learned Standing Counsel for

the Insurance Company did not oppose this.

9. Resultantly, taking the notional income

of the appellant to be Rs.2,500/- per month,

the "Loss of Earning Power" for 3½ months is

revised to be Rs.8,750/-; while the

compensation under head "Disability" is

modified to be Rs.81,600/-.

The total compensation thus eligible to MACA NO. 1078 OF 2010

the appellant will stand revised to

Rs.2,18,816/-, instead of Rs.1,52,676/- as

awarded by the Tribunal. The appellant will be

at liberty to recover this amount from the

Insurance Company, along with interest at the

rate of 6% per annum - as ordered by the

Tribunal - from the date of claim until

realisation, along with the costs awarded by

it.

However, while calculating the interest as

afore, a total period of 1618 days, which is

the delay caused by the appellant in

representing this appeal will be deducted.

Sd/-

DEVAN RAMACHANDRAN JUDGE SAS