Kerala High Court
Nirmal vs Balakrishnan M.V on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
MACA NO. 3296 OF 2017
ARISING OUT OF THE AWARD DATED 23.05.2017 IN OP(MV) NO.8/2016 OF
MACT, OTTAPPALAM
APPELLANT:
NIRMAL
AGED 21 YEARS
S/O. MUKUNDAN, PATTURAIKKAL HOUSE,
28 THURUVAMBAY, THRISSUR DISTRICT.
BY ADV SRI.SHEJI P.ABRAHAM
RESPONDENTS:
1 BALAKRISHNAN M.V.
S/O.VELAYUDHAN, MANAKULAM PARAMBIL HOUSE,
P.O CHEROOR, THRISSUR - 680 008(OWNER CUM DRIVER OF
MOTOR CYCLE KL - 08 T 1142)
2 UNITED INDIA INSURANCE CO. LTD
FAIZAL BUILDING, MAIN ROAD, OTTAPALAM,
POLICY NO.1006003114 P 105698541
VALID FROM 28.10.2014 TO 27.10.2015.
BY ADVS.
SRI. JOHN JOSEPH VETTIKAD (B/O, NO MEMO)
SRI. JOHN JOSEPH VETTIKAD BO NO MEMO
SRI.AGINOV MATHAPPAN
SMT.K.SHERIN MOHAN
BY ADVS.
AGINOV MATHAPPAN, SC
K.SHERIN MOHAN.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO.3296/2017 2
JUDGMENT
Dated this the 12th day of April, 2024
Aggrieved by the quantum of compensation awarded in
O.P.(M.V.) No.8 of 2016 filed before the Motor Accident Claims
Tribunal, Ottapalam (herein after referred to as the 'Tribunal')
this appeal is filed by the appellant who was the claimant
therein.
2. Facts in Brief:
On 27.05.2015 at about 12.30 pm, while the appellant
was travelling as a pillion rider on a scooter, a motor cycle
bearing registration No.KL-08/T-1142 owned by the 1st
respondent and driven by him in a rash and negligent manner
hit against the scooter in which the appellant was travelling.
Appellant suffered Lacerated wound Rt. foot dorsum 5 cm x 2
cm and undisplaced crack fracture 3rd metatarsal Rt. foot and
he was taken to the hospital where he underwent treatment as
inpatient for few days. He filed the OP (MV) seeking a
compensation of Rs.2,50,000/- arraying the insurer of the
motor cycle as the 2nd respondent therein. The 1st respondent
remained ex parte in the OP (MV) and the 2nd respondent
insurer filed a written statement. In the written statement,
though the 2nd respondent admitted that they had insured the
motor cycle bearing reg. No. KL-08/T-1142, they denied that
the accident occurred due to the negligence of the 1 st
respondent. The 2nd respondent also disputed the quantum of
compensation claimed and the statements regarding age,
occupation and income of the appellant. The nature of the
injuries claimed to have been suffered by the appellant as well
as the quantum of compensation claimed was also denied by
the 2nd respondent insurance company.
3. The Tribunal framed three issues and parties went
to trial. Appellant was examined as PW1 and he produced Exts.
A1 to A12. Respondents did not produce any documents in
evidence.
4. The Tribunal found that the accident was caused due
to the negligence of the 1 st respondent. An Award for
Rs.1,39,040/- with interest @ 9% per annum from the date of
the petition upto the date of payment with proportionate cost
to the appellant from the 2nd respondent was rendered by the
Tribunal. This MACA is filed by the appellant challenging the
said Award.
5. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the respondent
insurance company.
6. Appellant's contentions in the MACA against the
Award of the Tribunal are as follows:
# The amount awarded under the head of 'pain and
suffering' is too meager and inadequate.
# Tribunal failed to award any amounts towards future
treatment.
# The future prospects of the appellant was not
considered by the Tribunal in the proper perspective.
# The amount awarded under the head of 'loss of
amenities and enjoyment of life' is inadequate.
7. Per contra, the learned counsel appearing for the
insurance company submits that just and reasonable amounts
have been awarded by the Tribunal in the facts and
circumstances of the case and since the Award does not merit
any interference, the MACA may be dismissed.
8. I have considered the contentions raised by the
respective counsel and have perused the Award and pleadings.
9. The tribunal took note of Ext. A1 copy of the FIR
and the Ext. A3 copy of the charge sheet wherein it was
revealed that a case has been filed against the 1 st respondent
under Sections 279 and 338 of the IPC before the Judicial First
Class Magistrate Court No.II, Thrissur. Connected documents
including Ext. A4 scene mahazar and Ext. A5 copies of AMVI
reports were also considered by the Tribunal. Based on the
dictum laid down in New India Assurance Company Ltd. v.
Pazhaniammal and others [2011 (3) KHC 595] the Tribunal
found that the accident occurred due to the negligence of the
1st respondent.
10. Regarding the entitlement of the appellant to claim
compensation, the Tribunal taking note of Ext. A2 copy of the
Accident register cum Wound Certificate and Ext. A6 Discharge
Summary concluded that the appellant is entitled to get
compensation as envisaged under law. Coming to the quantum
of compensation, the Tribunal disallowed the claim for
Rs.20,000/- towards partial loss of earnings sought by the
appellant and this is averred by the counsel for the claimant as
erroneous. The refusal to grant any amounts towards future
medical expenses is also termed as incorrect by the counsel for
the appellant. The amount of compensation arrived at under
the heads of pain and suffering, compensation for continuing
permanent disability and loss of enjoyment and amenities of
life are the other heads pointed out by the counsel for the
appellant wherein the appellant is aggrieved by the quantum of
compensation awarded. The claims under each head are
considered separately as follows:
11. Head of 'Partial Loss of Earning': Under this head,
though the appellant had sought for Rs.20,000/- as
compensation, no amount has been awarded by the Tribunal.
Appellant was aged 20 years and was a student during the
time of the accident. A notional income of Rs.6,000/- has been
computed by the Tribunal in the Award for the purpose of
determination of compensation. Appellant has undergone
treatment as inpatient for a period of 8 days. From the
documents viz., Ext.A2 Wound Certificate, Ext. A6 Discharge
Summary and Ext.A7 Disability Certificate, Ext.A8 lab reports,
Ext.A9 copy of the Medical certificate, A10 scan report and A11
and A12 Prescription and medical bills respectively, produced
before the Tribunal, it can be reasonably presumed that he
might have been incapacitated at least for a period of three
months. It is fair, reasonable and just in the facts and
circumstances of this case that the notional income is taken as
Rs.8,000/-. Computing at the rate of Rs.8,000/- for three
months, the partial loss of earning is fixed at Rs.24,000/-.
12. Head of 'Pain and Suffering': An amount of
Rs.50,000/- was sought by the Appellant under this head and
the Tribunal has granted Rs.20,000/-. Taking note of the
gravity of the injury sustained by the Appellant and the nature
of injuries which have been described as Lacerated wound Rt.
foot dorsum 5 cm x 2 cm and un-displaced crack fracture 3 rd
metatarsal Rt. foot and the fact that he had undergone
inpatient treatment for 8 days, the amount of Rs.20,000/-
granted by the Tribunal is increased to Rs.25,000/- .
13. Head of 'Permanent Disability': The appellant had
sought a compensation of Rs.1,00,000/- towards for
continuing permanent disability of 5%. The Tribunal had,
taking the notional income as Rs.6,000/- and applicable
multiplier as 18, awarded an amount of Rs.64,800/- towards
compensation for continuing permanent disability
(6000x12x18x5/100=64,800/-). Since the notional income of
Rs.6,000/- has been found to be inadequate and it has been
re-assessed at Rs.8,000/-, the compensation for permanent
disability has to be calculated as Rs.86,400/-
(8,000x12x18x5/100=86,400/-).
14. Head of 'Loss of Enjoyment and Amenities of Life':
Under this head, the appellant had sought an amount of
Rs.50,000/- and the Tribunal had awarded Rs.10,000/-. It is
trite and settled law that as laid down by the Hon'ble Supreme
Court in Benson George v. Reliance General Insurance
Co. Ltd. & Anr. [2022 KHC 6232] that there cannot be
straight jacket formula regarding compensation to be awarded
under the heads of pain and suffering and loss of amenities. It
depends on the circumstances of each case and it varies from
person to person who has suffered due to the accident.
Considering the nature of the injuries and the effect of the
injuries on the personal life of the appellant and also taking
into consideration his age, compensation under this head is
altered from Rs.10,000/- granted by the Tribunal to
Rs.15,000/-.
15. Pursuant to the above enhancements made, the
amount of compensation under the different heads in the
Award stand altered as per the table below:
Sl.No. Head of claim Amount awarded Amount modified
by the Tribunal and recalculated
(Rs.) by this Court (Rs.)
1 Partial loss of earning Nil 24,000/-
2 Transportation expenses 3,000/- 3,000/-
3 Extra nourishment 1,600/- 1,600/-
4 Damage to clothing etc. 1,000/- 1,000/-
5 Medical and miscellaneous 37,040/- 37,040/-
expenses
6 Future medical expenses Nil Nil
7 Bystander expenses 1,600/- 1,600/-
8 Pain and suffering 20,000/- 25,000/-
9 Compensation for continuing 64,800/- 86,400/-
permanent disability
10 Loss of enjoyment and 10,000/- 15,000/-
amenities of life
Total 1,39,040/- 1,94,640/-
The Award of the Tribunal is modified to the above extent
entitling the appellant to a total amount to Rs.1,94,640/- under
the respective heads as tabulated above. Thus the total
enhancement allowed in the MACA is Rs.55,600/-. Amounts
granted under other heads in the Award remain unaltered.
Needless to add, the amounts already awarded by the Tribunal
under each or any of these heads has to be deducted from the
above amount awarded. Appellant will be entitled to interest @
8% per annum from the date of OP(MV) on the enhanced
amount. However, the appellant will be dis-entitled for the
interest for the period of 40 days which was the period of delay
in filing the MACA which was condoned by this Court vide Order
dated 24.10.2017 in C.M.Appln.No. 3750 of 2017 in the above
MACA.
MACA stands disposed as above.
Sd/-
SYAM KUMAR.V.M.
JUDGE
csl
