Arun Cherian vs The New India Assurance Co.Ltd
2023 Latest Caselaw 3338 Ker

MACA NO. 1386 OF 2020
                              1

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
     THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                 MACA NO. 1386 OF 2020
 AGAINST THE AWARD DATED 19.10.2019 IN OPMV 517/2018 OF
      MOTOR ACCIDENT CLAIMS TRIBUNAL, TALIPARAMBA
APPELLANT/PETITIONER:

         ARUN CHERIAN
         AGED 28 YEARS
         S/O CHERIAN,THAKADIYEL HOUSE,THERTHALLY.P.O,
         ALAKODE VIA,KANNUR DISTRICT, PIN-670571.
         BY ADV M.R.JAYALATHA


RESPONDENT/3RD RESPONDENT:

         THE NEW INDIA ASSURANCE CO.LTD
         REP BY TS BRANCH MANAGER,CITY CENTRE, BLOCK
         -1,2ND FLOOR,NEAR TOWN BUS STAND,
         KOTTACHERRY,KANHANGAD,KASARAGOD DISTRICT-
         671315.(POLICY NO.76180131170300005280).
         BY ADV SHRI.LAL K.JOSEPH, SC, NEW INDIA
         ASSURANCE COMPANY LTD.



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A No. 1386 of 2020

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                           JUDGMENT

The appellant was injured in a road accident on

16.03.2018, when the motor cycle he was riding, along with

his cousin as a pillion, was hit by the offending car driven in a

rash and negligent manner. He was taken to a hospital at

Kanhangad and then shifted to the "Yenepoya Medical College

Hospital", Mangalore, where he underwent treatment until

10.10.2018. He thereupon filed O.P.(MV)No.517 of 2018

before the Motor Accidents Claims Tribunal, Taliparamba

('Tribunal' for short), seeking compensation of an amount of

Rs.12 lakhs, asserting that he is an electrician earning

Rs.30,000/- per month; but which has been allowed only to a

sum of Rs.5,42,585/-. He thus assails the compensation as

being inadequate.

2. Smt.M.R.Jayalatha - learned counsel for the

appellant, argued that Ext.A5, read along with Ext.A6 -

Salary Certificate and the deposition PW1 - who issued the

same, would establish beyond doubt that her client is an

electrician, drawing salary of Rs.30,000/- per month and

hence that the notional income adopted by the Tribunal in his

favour as being Rs.9,000/- is woefully insufficient. She then

argued that, going by the injuries sustained by her client, the M.A.C.A No. 1386 of 2020

period reckoned by the Tribunal for the purpose of computing

compensation for 'Loss of Earnings' is inadequate; while the

sums awarded under the various other heads, including 'Pain

and Sufferings' and 'Loss of Amenities', is exiguous. She thus

prayed that this appeal be allowed.

3. In response, Sri.Lal K.Joseph - learned Standing

Counsel for the Insurance Company, argued that Exts.A5 and

A6 Certificates are to the effect that the entity which issued it

had several people on their roll and that a total salary

mentioned therein was paid to them. He argued that, even

PW1 - who is stated to have issued Ext.P6 - did not explain

the actual income paid to the appellant and that this is more

so because, he did not produce any document on record to

show actual receipt. He argued that, therefore, the

compensation awarded by the Tribunal is without error; and

thus prayed that this appeal be dismissed.

4. I have considered the afore rival 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. M.A.C.A No. 1386 of 2020

5. On the question of adequacy of the notional income

adopted by the Tribunal, I find favour with the appellant only

in part because, even though he claimed that he was earning

Rs.30,000/- per month, neither Exts.A5 or A6 establish the

said figure in any manner whatsoever. The testimony of PW1

also would not be any avail to him in this regard because,

there again, apart from saying that he is paying salary to all

his employees to a consolidated sum, no specific inputs

regarding the salary of the appellant is discernible. However,

these evidence would be sufficient to establish that the

appellant was working as an Electrician, as claimed by him.

6. As per Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Ltd. [(2011) 13

SCC 236], the notional income to be taken, even in the case

of a coolie, or a person with an unascertainable income, in the

year 2018 - when the accident occurred - is Rs.11,500/-.

But, in Rajani v. Oriental Insurance Company Ltd. [2022

(5) KLT online, 1012], the Hon'ble Supreme Court has

further said that, in the case of a person engaged in a

technical avocation, a more robust view has to be taken. I

am, therefore, of the firm view that this Court will be justified

in adopting the notional income of the appellant to be M.A.C.A No. 1386 of 2020

Rs.12,500/- per month, which is a mere Rs.1,000/- more

than what has been authorized by Ramachandrappa

(Supra) in the case of a 'Coolie'.

7. That said, the medical evidence on record particularly

Ext.A2 - Wound Certificate and Ext.A4 - Discharge Summary,

establish that the appellant suffered the following injuries:

"1. Laceration 4x1 cm over right knee

2. Laceration 3x2 cm over right thigh

3. Abrasion over right toe

4. Lacerated wound 3x1 cm over lateral aspect of left knee

5. Abrasion over left wrist

6. Tenderness (T) over right thigh

7. Compound fracture lateral shaft of right femur and comminuted fracture of both bones of shaft of right leg."

8. The treatment records certainly indicate that the

appellant had to go through long periods of treatment,

particularly for the union of the fractures of his right femur

and both bones of shaft of his right leg. However, it appears

that the treatment has been effective and that the petitioner

did not suffer major disabilities, since Ext.X1 Certificate

issued by the Standing Disability Assessment Board certifies it

to be only 1%.

9. Viewed from the afore perspective and taking note

of the rather grievous injuries suffered by the appellant, I am M.A.C.A No. 1386 of 2020

of the view that the period to be reckoned for the purpose of

computing 'Loss of Earnings' must be a minimum of seven

months, adverting to the serious fractures sustained by him

and the normal period that would have been necessary for its

proper union.

10. As far as 'Pain and Sufferings' is concerned, the

learned Tribunal has granted Rs.40,000/-, with an additional

Rs.20,000/- towards 'Loss of Amenities'. I deem it necessary

to raise both of them marginally, which I propose to be

Rs.50,000/- and Rs.30,000/- respectively.

Coming to the compensation awarded under the heads

'Bystander Expenses' and 'Extra Nourishment', it is without

doubt - as is admitted - that the appellant endured 46 days

of treatment as inpatient. The Tribunal has awarded Rs.600/-

per day towards 'Bystander Expenses' and I do not intend to

disturb it; though, under the head 'Extra Nourishment', only a

consolidated amount of Rs.3,000/- has been granted. This is

certainly exiguous for 46 days of hospitalization since the per

day expenses reckoned is as low as Rs.65/-. I am certain that

this must be raised to Rs.200/- per day at the minimum.

In the afore circumstances this appeal is allowed in the

following manner:

M.A.C.A No. 1386 of 2020

(a) The compensation under the head 'Permanent

Disability' is revised to Rs.25,500/-, reckoning the notional

income of the appellant to be Rs.12,500/- and his percentile

of disability to be 1 as certified in Ext.X1.

(b) The compensation under the head 'Loss of Earnings'

is enhanced to Rs.87,500/-, reckoning the notional income of

the appellant to be Rs.12,500/- per month and seven months

being the period taken for such purpose.

(c) The compensation under the head 'extra

Nourishment is enhanced to Rs.9,200/- from Rs.3,000/-,

reckoning Rs.200/- being the expenses per day, for 46 days

of hospitalization.

(d) The compensation under the head 'Pain and

Sufferings' is enhanced to Rs.50,000/-, from Rs.40,000/- as

awarded by the Tribunal.

(e) The compensation under the head 'Loss of Amenities'

is enhanced to Rs.30,000/- from Rs.20,000/-, as awarded by

the Tribunal.

In all other heads, the compensation awarded by the

Tribunal will remain unaltered.

M.A.C.A No. 1386 of 2020

Consequently, 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 8%

(reducing the rate of interest of 9% granted by the Tribunal,

in view of the escalation granted by this Court), 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.

In view of the afore, the amount as fixed above shall be

deposited by the Insurance Company before the learned

Tribunal, within a period of two months from the date of

receipt of a copy of this judgment.

Sd/-DEVAN RAMACHANDRAN JUDGE

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