Nixon vs Reliance General Insurance ...
2023 Latest Caselaw 3781 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                         MACA NO. 2330 OF 2017
 [AGAINST THE AWARD DATED 25.01.2017 IN OP(MV)NO.1767/2012 ON THE
   FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR]


APPELLANT/PETITIONER:

             NIXON, S/O PETER, SRAMBICKAL,
             EDAYAR, BINANIPURAM.

             BY ADV SRI.A.N.SANTHOSH


RESPONDENT/3RD RESPONDENT:

             RELIANCE GENERAL INSURANCE COMPANY LTD.,
             2ND FLOOR, GLOBEL PLAZA, NEW RAILWAY PLATFORM,
             VANCHIKULAM ROAD, POTHOOLE P.O, THRISSUR -680004.

             BY ADVS: SRI.R.AJITH KUMAR (128/84)
             SRI.TAPAS VARMA-SC
     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 2330 OF 2017
                                 -2-

                          JUDGMENT

This matter is of the year 2017 and has not

been admitted. However, both sides are ad idem

that it can be disposed of, after being formally

admitted, based on the undisputed evidence on

record, handed over by them across the Bar. I,

therefore, admit this Appeal and proceed to

dispose it of finally, with the consent of both

sides.

2. The appellant was injured in a road

accident on 25.09.2012, when he was knocked

down by the offending motorcycle, while he was

standing in a public bus stop waiting for a bus.

He sustained grievous injuries and had to be

rushed to the hospital, where he endured

treatment, including as an inpatient for three

days. He thereupon filed OP(MV)No.1767/2012

before the Motor Accidents Claims Tribunal,

Perumbavoor ('Tribunal', for short), seeking MACA NO. 2330 OF 2017

compensation of an amount of Rs.3,85,000/-,

limited to Rs.2,50,000/-; but which has been

allowed only to a sum of Rs.1,11,599/-. He thus

assails the compensation as being inadequate.

3. Sri.A.N.Santhosh - learned counsel for

the appellant, argued that the primary reason

why the compensation in favour of his client has

been fixed low by the Tribunal is because it has

adopted the notional income to be Rs.5,000/- per

month, though he had claimed Rs.9,000/-,

asserting that he is a welder. He argued that

when there is evidence to establish both these

factum, the figure of Rs.9,000/- ought to have

been adopted. He then took me extensively

through the medical evidence on record, to argue

that the compensation awarded by the Tribunal

under the heads "Pain and Suffering" and "Loss

of Amenities" is too exiguous; while it ought to

have granted much higher amounts under the head MACA NO. 2330 OF 2017

"Extra Nourishment" and "Bystander Expenses". He

thus prayed that this Appeal be allowed.

4. In response, Sri.Tapas Varma - learned

Standing Counsel for the Insurance Company,

contended that the accident happened in the year

2012 and, therefore, that the fiscal standards

of that time alone could have guided the learned

Tribunal, as it has correctly reckoned in the

Award. He thus prayed that this Appeal be

dismissed.

5. I have considered the afore rival

submissions on the touchstone of 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.

6. On the question of notional income of

the appellant, I have no doubt that the learned

Tribunal has erred in adopting a mere Rs.5,000/- MACA NO. 2330 OF 2017

in this regard. This is because, in

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Ltd. [(2011) 13 SCC

236], the Hon'ble Supreme Court has postulated

that, even in the case of a person who is a

'Coolie', or with an unascertainable income, in

the year 2012 - when the accident occurred - the

minimum figure to be reckoned is Rs.8,500/-.

Even though the appellant claims that he is a

welder, there is absolutely no evidence on

record to establish it; and therefore, I have

no doubt that the afore figure alone would have

been adopted.

7. That said, the medical evidence,

particularly Ext.A5 - Wound Certificate, show

that the appellant has suffered following

injuries:

"Depressed fracture lateral tibial condyle(L), pain with tenderness left knee and left ankle." (sic) MACA NO. 2330 OF 2017

8. The appellant was admitted and treated

in a hospital as an inpatient for three days;

and Ext.A6 - Discharge Summary records that he

had sustained "split depressed fracture lateral

tibial condyle (L)." (sic) These injuries are

not trivial, and I am certain that the appellant

must have gone through certain amount of agony

and pain, at least until the treatment lasted

and his fractures had been united. I have little

doubt, therefore, that the compensation under

the heads "Pain and Suffering" and "Loss of

Amenities" require to be marginally increased,

which I propose to be Rs.30,000/- and

Rs.25,000/-, respectively.

9. As regards the compensation awarded by

the Tribunal under the heads "Extra Nourishment"

and "Bystander Expenses", I notice that it has

been awarded at the rates of Rs.500/- and MACA NO. 2330 OF 2017

Rs.200/- respectively. I do not think this is

exiguous, going by the fiscal standards of the

year 2012.

In the afore circumstances, this Appeal is

partly allowed in the following manner:

(a) The compensation under the head "Loss of

Earnings" is enhanced to Rs.25,500/- (Rupees

twenty five thousand five hundred only), from

Rs.15,000/- awarded by the Tribunal, reckoning

the notional income of the appellant to be

Rs.8,500/- per month and adopting the period for

such purpose being three months, as correctly

taken by the Tribunal.

(b) The compensation under the head

"Permanent Disability" is enhanced to

Rs.30,600/- (Rupees thirty thousand six hundred

only), from Rs.18,000/-, reckoning the notional

income of the appellant to be Rs.8,500/- per

month and his percentile of disability to be MACA NO. 2330 OF 2017

'3', as certified in Ext.C1 and correctly taken

by the learned Tribunal.

(c) The compensation under the head "Pain

and Suffering" is enhanced to Rs.30,000/-,

(Rupees thirty thousand only), from Rs.20,000/-

now awarded by the Tribunal.

(d) The compensation under the head "Loss of

Amenities" is enhanced to Rs.25,000/- (Rupees

twenty five thousand only), from Rs.15,000/- now

awarded by the Tribunal.

(e) In all other heads, the compensation

granted by the Tribunal will remain intact.

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 8.5% (modifying 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 MACA NO. 2330 OF 2017

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 Tribunal, within a period of

two months from the date of receipt of a copy

this judgment.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv