Kerala High Court
Tinu P.Varghese vs Leela Joy on 1 August, 2024
MACA NO. 1057 OF 2015
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2024:KER:59942
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
ST
THURSDAY, THE 1
DAY OF AUGUST 2024 / 10TH SRAVANA,
1946
MACA NO. 1057 OF 2015
AGAINST THE AWARD DATED 03.03.2014 IN OP(MV) NO.2254 OF 2009 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/PETITIONER:
INU P.VARGHESE,
T
AGED 23 YEARS,
S/O.P.V.VARGHESE, 2/214, PURAPARAMBIL HOUSE,
MALANKARA CHURCH ROAD, KUREEKAD P.O.,
CHOTTANIKKARA, COCHIN-682305.
Y ADVS.
B
SRI.RAHUL SASI
SMT.NEETHU PREM
RESPONDENTS/RESPONDENTS:
1
EELA JOY,
L
W/O.JOY, 10/608, KATTASSERIL HOUSE,
VADAVUCODE.P.O.-682310, PUTHENCRUZ.
2
.N.RAJESH,
C
S/O.NARAYANAN C.K., CHOOZHIKARA HOUSE, MULLAKANAM,
RAJAKKAD P.O.-685566.
3
HE NATIONAL INSURANCE COMPANY LTD.
T
BRANCH OFFICE, SHANTHI PARK, N.H.49, KOLENCHERY-682311.
4
HE UNITED INDIA INSURANCE COMPANY LTD.
T
BRANCH OFFICE, TRIPUNITHURA-682301.
Y ADVS.
B
P.G.GANAPPAN
K.SHERIN MOHAN
AGINOV MATHAPPAN
THIS
MOTOR
ACCIDENT
CLAIMS
APPEAL
HAVING
BEEN
FINALLY
HEARD
ON 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 1057 OF 2015
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J U D G M E N T
This appeal is at the instance of the claimant in
OP(MV)No.2254 of 2009 on the file ofMotorAccidentsClaims
Tribunal, Ernakulam, impugning the award on the ground of
inadequacy of compensation.
2. On 26.03.2009, at 4.00 p.m., while the
appellant/claimant was riding a motorcycle, through
Vattekunnu - Kandanad road, he was knocked down by
KL-07/AK-5361tipperlorry,drivenbythe2ndrespondent,ina
rash and negligent manner. He sustained severe injuries,
includingheadinjury.Hewashospitalisedfortendays.Hewas
an 18 year old Plus Two student at the time of accident. He
approached the Tribunal claiming compensation of
Rs.5,00,000/-. But learned Tribunal awarded only
Rs.2,07,800/-. Hence this appeal.
3. The 2nd respondent was the driver, 1st respondent
was the owner and 3rd respondent was the Insurer of the
offending tipper lorry. The 4th respondent was the Insurer of
the motorcycle of the appellant. Learned Tribunal, on
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analysing the facts and evidence, found that the accident
occurred due to the rash and negligent driving of the tipper
lorrybythe2ndrespondent,andsincethatvehiclewasvalidly
insured with the3rdrespondent-NationalInsuranceCompany,
the liability to compensate the claimant was fixed on the 3rd
respondent.
4. Intheappeal,the3rdrespondententeredappearance
and admitted the accidentaswellasthePolicy.Butaccording
tothem,thecompensationawardedbytheTribunalisjustand
reasonable and hence it needs no modification.
5.NowthisCourtiscalledupontoanswerwhetherthere
is any illegality, irregularity or impropriety in the impugned
award, warranting interference by this Court.
6. Heard learned counsel for the appellant and learned
counsel for the 3rd respondent-Insurer.
7. Learned counsel for the appellant submitted that the
appellantwasaPlusTwostudentaged18years,whosuffered
severe head injury and lost his classes due to the injuries
suffered. Learned Tribunal fixed his notional income @
Rs.3,000/- only, finding that he was not earning any income.
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Learned counsel for the appellant would rely on the decision
National Insurance Co. Ltd., Chennai v. Fathimath
Zuhara @ Zuhra Razak and Another [2016 KHC 691],in
which,aDivisionBenchofthisCourtadoptedmonthlyincome
ofRs.12,000/-fora19yearoldboy,wholosthislifeinaroad
traffic accident. On going through that decision, it could be
seen that the deceased in that case was an Engineering
student, at the time of accident. In the case on hand, the
injured was a Plus Two student. So this Court is inclined to
take a notional income of Rs.10,000/- for the injured.
8. Learned Tribunal awarded Rs.10,000/- towardslossof
studies.SincehewasaPlusTwostudent,whosufferedsevere
head injury, which resulted in 10% disability as reported by
the Medical Board, this CourtisinclinedtoawardRs.10,000/-
more towards loss of studies, as he would have to expend
money for tuition classes to make up his studies.
9. Towards transportation expenses, learned Tribunal
awarded only Rs.1,000/-. This Court is inclined to award
Rs.1,000/- more on the basis of the submission made by
learned counsel for the appellant that even after discharge
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from the hospital, he had to go to hospital for periodic review.
10.Towardsextranourishment,learnedTribunalawarded
only Rs.2,000/-. This Court is inclined to award Rs.2,000/-
more as the injuries he had suffered were on the face and
head, which may cause difficulty to him, for taking normal
food.
11. Towards bystander expenses also, this Court is
inclined to award Rs.2,500/- more, as he might have been in
need of an attendant even after discharge from hospital
considering the nature of injuries and disability suffered by
him.
12.Towardspainandsuffering,learnedTribunalawarded
only Rs.30,000/- against his claim ofRs.50,000/-.Takinginto
account the nature of injuries suffered and the period of
hospitalisation, this Court is inclined to award Rs.10,000/-
more under the head 'pain and suffering'.
13. Ext.C1 Disability Certificate shows that the Medical
Board assessed his disability as 10%, including neuro
disability. We have fixed his notional income as Rs.10,000/-.
Themultiplierapplicableis18.So,thedisabilitycompensation
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can be assessed as Rs.2,16,000/- (10,000x12x18x10/100).
After deducting Rs.64,800/- awarded by the Tribunal, he is
entitled to get balance Rs.1,51,200/-.
14. No amount was seen awarded by the Tribunal,
towards lossofamenitiesordisfiguration.Learnedcounselfor
the appellant would submit that the appellant had suffered
disfiguration. But no supporting documents are produced.
Ext.C1 certificate shows that therewas5cmlongscaronleft
proximal phalanx and he had suffered 10% of disability,
includingneurodisability.Consideringthataspect,thisCourtis
inclined to award Rs.10,000/- under the head 'loss of
amenities and disfiguration' due to the scar.
15. The compensation awarded by the Tribunal under all
other heads seems to be reasonable and hence it needs no
modification.
Head of claim Amount Amount Difference to be
warded by
a awarded in drawn as enhanced
the Tribunal appeal compensation
Loss of studies Rs.10,000/- Rs.20,000/- Rs.10,000/-
ransportation
T Rs.1,000/- Rs.2,000/- Rs.1,000/-
expenses
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Extra nourishment Rs.2,000/- Rs.4,000/- Rs.2,000/-
ystander expenses/
B
Attendant expenses Rs.2,500/- Rs.5,000/- Rs.2,500/-
Pain and suffering Rs.30,000/- Rs.40,000/- Rs.10,000/-
ompensation for
C
permanent disability Rs.64,800/- Rs.2,16,000/- Rs.1,51,200/-
oss of amenities
L ...... Rs.10,000/- Rs.10,000/-
and disfiguration
Total Rs.1,86,700/-
16. In the result, the appellant is entitled to get
enhanced compensation of Rs.1,86,700/-.
17. The 3rd respondent-Insurer (National Insurance Co.
Ltd.) is directed to deposit Rs.1,86,700/- (Rupees One Lakh
Eighty Six Thousand and Seven Hundred only) with 7%
interest per annum, from the date of petition till the date of
deposit (excluding 208 days of delay in filing the appeal),
before the MotorAccidentsClaimsTribunal,Ernakulam,within
a period of two months from the date of receipt of a copy of
this judgment. Learned Tribunal shalldisbursethatamountto
the appellant, after deducting the liabilities, if any, towards
tax, balance court fee and legal benefit fund.
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The appeal is allowed to the extent as above, and no
order is made as to costs.
d/-
S
SOPHY THOMAS
JUDGE
DSV/-
