Sajithkumar M vs Gireesan K
2023 Latest Caselaw 2407 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
                        MACA NO. 3566 OF 2019
   AGAINST THE AWARD IN OP(MV)NO.414/2012 OF MOTOR ACCIDENT
                     CLAIMS TRIBUNAL,TRIVANDRUM
APPELLANT:

             SAJITHKUMAR M.,
             AGED 44 YEARS
             S/O. MANIYAN, REMA MANDIRAM, PAYYATUVILLA,
             KOTTUKKAL VILLAGE, PAYATTUVILA P.O.,
             THIRUVANANTHAPURAM-695501.
             BY ADV RINU. S. ASWAN


RESPONDENTS:

    1        GIREESAN K.,
             AGE NOT KNOWN, THOOTTINKARAPUTHEN VEEDU,
             PERINJAMKADAVU, NEYYAR DAM P.O.,
             THIRUVANANTHAPURAM-695572.
    2        SREEKUMAR,
             S/O. KRISHNAMMA, MELE THAEKKAEVILAKOM VEEDU,
             VENGANOOR P.O., THIRUVANANTHAPURAM-695527.
    3        M/S. NATIONAL INSURANCE CO. LTD.,
             REPRESENTED BY ITS MANAGER, HAVING OFFICE AT
             ST. JOSEPH PRESS BUILDING, VAZHUTHACAUD,
             THIRUVANANTHAPURAM-695014.
             BY ADVS.
             SRI.P.G.JAYASHANKAR
             SMT.REVATHY P. MANOHARAN
             SMT.STEFIN THOMAS


     THIS    MOTOR   ACCIDENT   CLAIMS    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 24.02.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 3566 OF 2019            2

                            JUDGMENT

The victim of a road accident, who was working as a Driver, has

filed this appeal.

2. As per the appellant, he was grievously injured on

04.10.2010, while travelling as a pillion in a motor cycle, which was

ridden by the 2nd respondent and from which he fell on account of the

rash and negligent driving of the said respondent. He says that he

suffered injuries and was taken to hospital and had to undergo

prolonged treatment. He thus filed O.P(MV)No.414 of 2012 before

the Motor Accidents Claims Tribunal, Thiruvananthapuram

('Tribunal' for short) seeking compensation of Rs.6,00,000/-, but

which has been awarded only to the extent of Rs.2,39,950/-. He

impugns the Award of the Tribunal and prays that the compensation

awarded be enhanced.

3. In response to the afore request of the appellant, as made by

his learned counsel - Sri.Rinu S.Aswan, the learned Standing Counsel

for the Insurance Company - Sri.P.G.Jayashankar, submitted that the

computations adopted by the Tribunal is without error; and prayed

that this appeal be dismissed.

4. I have considered the afore submissions and have also gone

through the evidence on record - copies of which have been handed

over across the Bar by the learned counsel for the parties, with the

express consent that it can be acted upon by this Court without

dispute.

5. I must first examine on what basis the Tribunal has arrived at

the compensation for 'Permanent Disability'. I notice that it has taken

the notional income of the appellant to be Rs.5,500/- per month when,

even going by Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the

figure in the case of a person with unascertinable income ought to

have been Rs.7,500/-. To add to this, the fact that the appellant was

working as a driver, certainly compels me to take a more robust view,

being guided by another judgment of the Supreme Court, namely

Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT

online 1012] ; and I, therefore, propose the notional income of the

appellant to be Rs.8,500/-.

6. That said, the appellant has a specific case that the percentile

of his disability taken by the Tribunal is incorrect because Ext.A10 -

Disability Certificate records it to be 10%. Even though this

Certificate has been issued by a Doctor and not by a Medical Board,

the fact remains that the Insurance Company did not oppose it, nor

did they object to its marking. Obviously, they had no contest to the

figures therein and I see no reason why the Tribunal still should have

accepted a lesser percentile of 5.

7. The medical evidence on record, particularly Exts.A2 and A5

Discharge Certificates and Exts.A7 and A8 Medical Bills, as also

Ext.A9 - Out Patient Card from the Medical College Hospital,

Thiruvananthapuram, show indubitably that the appellant sustained

fracture on the shaft of his left humerus, with injury to the left arm

with tenderness. As I have said above, he was a driver and obviously

he must have been unable to work for the period until he was

completely cured.

8. The pain and suffering that the appellant must have also been

acute; and in that perspective, I am of the view that the Tribunal

should have been more generous in the grant of compensation under

the head 'Pain and Sufferings' as also 'Amenities'. This is more so

because, the learned counsel for the appellant says that his client is

still going through trauma and stress on account of the injury,

because of the continued issues relating to the fracture sustained by

him.

9. I, therefore, propose that the compensation for 'Pain and

Sufferings' be enhanced to Rs.40,000/- and that for 'Loss of

Amenities' be enhanced to R.25,000/-.

10. On the head of 'Loss of Earnings', when I have already

found that the notional income ought to be Rs.8,500/-, the sum will

require to be revised; and am of the opinion that an additional two

months must be added to what has been awarded by the Tribunal,

taking note of Ext.A7 - Medical Bills and Ext.A10 - Disability

Certificate, which certifies that the appellant was completely disabled

for three months and required to take rest for another three months.

Resultantly this appeal is allowed in the following manner:

(a) Compensation for 'Permanent or Continuing Disability' is

revised to Rs.1,53,000/- from Rs.49,500/-, taking the notional income

of the appellant to be Rs.8,500/- and his percentage of disability to be

15.

(b) Compensation under the head 'Pain and Sufferings' is

enhanced to Rs.40,000/-, from Rs.25,000/- now granted by the

Tribunal.

(c) Compensation for 'Loss of Amenities' is enhanced to

Rs.25,000/- from Rs.14,850/-, granted by the Tribunal.

(d) Axiomatically, the compensation under the head 'Loss of

Earnings' for three months granted by the Tribunal will stand revised

to Rs.42,500/- from Rs.16,500/-, as awarded by the Tribunal.

In all other heads, the compensation awarded by the Tribunal

will remain unaltered.

Needless to say, the appellant will be at full liberty to recover the

compensation, as enhanced by this Court, from the Insurance

Company, along with interest at the rate of 7.5% (reduced from the

rate of 8% granted by the Tribunal on account of the afore escalation)

from the date of claim until it is recovered. He will also be entitled to

proportionate costs on the enhanced amount as ordered by the

Tribunal.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/24.2