Kerala High Court
V.Anil Kumar vs Biju on 11 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
MACA NO. 1489 OF 2013
AGAINST THE ORDER/JUDGMENT DATED 20.04.2013 IN OPMV NO.456 OF 2004 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM
APPELLANT/S:
V.ANIL KUMAR
THANDAKKARAM VILAKOM, KULATHOOR P O, THIRUVANANTHAPURAM
BY ADVS.
SRI.K.RAJESH KANNAN
SRI.A.S.SHAMMY RAJ
RESPONDENT/S:
1 BIJU
S/O.FANCIS,BIJU COTTAGE, NELLIMOODU, MURUKUMPUZHA P O,
THIRUVANANTHAPURAM-695302
2 BINU
S/O.SUGATHAN, T C 7/275, MUKKKOLAKKAL, KAZHAKKUTTOM P O,
THIRUVANANTHAPURAM-695582
3 MS.ORIENTAL INSURANCE COMPANY LTD
DOOR II ST.MARY VILLA, ULLOOR P O, THIRUVANANTHAPURAM, REP BY ITS
BRANCH MANAGER-695011
4 BALAKRISHNAN UNNITHAN
S/O.KESAVAN UNNITHAN T C 11/196, PADMA NIVAS,PALLITHURA SOUTH P O,
THIRUVANANTHAPURAM-695586
5 MS.NEW INDIA ASSURANCE COMPANY LTD
NEAR MUNICIPAL BUS STAND MAIN ROAD, ATTINGAL P O,
THIRUVANANTHAPURAM-695101
BY ADVS.
SRI.R.AJITH KUMAR 12884
SRI.P.G.GANAPPAN
K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA. No. 1489 of 2013
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SOPHY THOMAS, J.
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M.A.C.A. No. 1489 of 2013
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JUDGMENT
Dated this the 11th day of April, 2024
This appeal is at the instance of the claimant in O.P. (MV) No.
456 of 2004 on the file of Motor Accidents Claims
Tribunal,Thiruvananthapuram, challenging the award on the ground
of inadequacy of compensation.
2. On 18.12.2003 at about 03.00 p.m., while the
appellant/claimant was pillion riding a motorcycle through Chacka -
Kazhakuttam Bye Pass, KL-01-F-3306 car driven by the
1st respondent in a rash and negligent manner, dashed against his
motorcycle, and he was thrown down and sustained serious injuries.
He was hospitalized for ten days. He suffered permanent disability to
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the extent of 40% due to the injuries suffered in that accident, and he
completely lost hearing capacity of his right ear. He was a 32 year
old business man, earning monthly income of Rs.10,000/-. He
approached the Tribunal claiming compensation of Rs.15,00,000/-.
But learned Tribunal awarded only Rs.3,48,083/-. Hence this appeal.
3. The 1st respondent was the driver of the offending car. The 2 nd
respondent was its owner, and the 3rd respondent was its insurer.
4. In the appeal, the 3rd respondent insurer entered appearance
and admitted the policy.
5. Heard learned counsel for the appellant, and learned counsel
for the 3rd respondent insurer of the offending vehicle.
6. The appellant is challenging the award mainly on the ground
that learned Tribunal fixed notional income of the appellant
@ Rs.4,000/- only, though he was earning monthly income of
Rs.10,000/-. Moreover, though his disability was assessed by KIMS
Disability Assessment Board as 40%, learned Tribunal reduced it to
25%, without assigning any valid reasons.
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7. Though the appellant claimed to be a business man earning
monthly income of Rs.10,000/-, there was no documentary evidence
to prove his income. So learned Tribunal fixed his monthly income
notionally as Rs.4,000/-. The accident was in the year 2003, even
going by the decision Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited [AIR 2011 SC
2951], he was entitled to get his notional income fixed @ Rs.4,000/-
only. So, this Court finds no reason to modify the notional income
fixed by the Tribunal.
8. Learned Tribunal assessed loss of earning for four months
only. Ext.A3 wound certificate will show the injuries suffered by the
appellant. He had sustained fracture of right temporal bone,
extending to the floor of MLF, fracture (L) maxilla, haemosinus (L)
maxilla, fracture (R) clavicle, etc, etc. He lost hearing capacity of
right ear due to the injuries suffered in that accident. He was
hospitalized for ten days, and he was continuing his treatment even
after discharge. There was malunited fracture of right clavicle.
Learned Tribunal also noted that right clavicle of the appellant was
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seen protruded and there was facial nerve palsy on the right side.
Considering all these aspects this court is inclined to assess loss of
income for eight months @ Rs.4,000/-. So, the appellant is eligible to
get Rs.32,000/- towards loss of earning. After deducting Rs.16,000/-
already awarded, he is entitled to get a balance amount of
Rs.16,000/-.
9. Towards transportation expenses, though he claimed
Rs,2,500/-, the Tribunal awarded Rs.1,000/-. So, this Court is
inclined to award Rs.1500, more towards transportation expenses.
10. Towards extra nourishment, Rs.1,000/- more is awarded as
he had suffered extensive injuries on his face and so he might not
have been able to take normal food for a considerable period.
11. Towards pain and suffering, considering the nature of injuries
suffered, especially on the face, this Court is inclined to award
Rs.10,000/- more towards pain and suffering.
12. Towards permanent disability, learned Tribunal fixed the
percentage of permanent disability as 25%, though Ext.A12 disability
certificate was to the effect that, the appellant suffered permanent
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disability of 40%. True that it was not a certificate issued by the
medical board. The member secretary of KIMS Disability
Assessment Board issued that certificate. The appellant was treated
in that hospital itself. There is no dispute with respect to the fact that,
the appellant a 32 year old man suffered hearing loss of right ear due
to the injuries suffered in that accident. So, this Court is of the view
that 40% disability assessed by the KIMS Disability Assessment
Board is not on the higher side. So, this Court is inclined to accept
the disability of the appellant as 40%. Taking his monthly income as
Rs.4,000/- and adopting the multiplier of 16, he is eligible to get
compensation of Rs.3,07,200/- towards 40% disability. After
deducting Rs,1,92,000/- already awarded, he is entitled to get the
balance of Rs.1,15,200/-
13. Towards loss of amenities learned Tribunal awarded
Rs.64,000/- against his claim of Rs.1,50,000/-. Since the appellant
lost hearing capacity of his right ear, this Court is inclined to award
Rs.20,000/- more towards loss of amenities.
14. The compensation awarded under all other heads seems to be
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reasonable, and hence it needs no modification.
15. The enhanced compensation awarded in this appeal is given
in the table below:-
Head of claim Amount Amount Difference to be
awarded awarded in drawn as
by the appeal enhanced
Tribunal compensation
Loss of earnings 16,000/- 32,000/- 16,000/-
Transportation 1,000/- 2,500/- 1,500/-
Extra nourishment 2,000/- 3,000/- 1,000/-
Pain and suffering 20,000/- 30,000/- 10,000/-
Permanent disability 1,92,000/- 3,07,200 1,15,200/-
Loss of amenities 64,000/- 84,000/- 20,000/-
Total 1,63,700/-
16. So the appellant is entitled to get enhanced compensation of
Rs.1,63,700/- (16,000 + 1,500 + 1,000 +10,000 +1,15,200 + 20,000)
17. The 3rd respondent insurer is directed to deposit the
enhanced compensation with 9% interest per annum from the date of
petition till the date of deposit before the Tribunal concerned within a
period of two months from the date of receipt of a copy of this
judgment. Learned Tribunal shall disburse the award amount to the
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appellant after deducting the liabilities, if any, towards Tax, balance
court fee and legal benefit fund.
The appeal is allowed to the extent as above and no order as to
costs.
Sd/-
SOPHY THOMAS
JUDGE
RMV
