Kerala High Court
Jishi vs Ajesh Kumar on 4 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
TUESDAY, THE 4
DAY OF JUNE 2024 / 14TH JYAISHTA,
1946
MACA NO. 1493 OF 2013
AGAINST THE AWARD DATED 08.10.2012 IN OP(MV) NO.1165 OF 2010
OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
ISHI A.T.,
J
AGED 30 YEARS,
S/O.CHANDUKUTTY, RESIDING AT ARANGIL THAHAH HOUSE,
NEAR ELATHOOR VILLAGE OFFICE,
P.O.ELATHOOR,KOZHIKODE.
Y ADVS.
B
SRI.V.S.CHANDRASEKHARAN
SRI.M.V.DAS
SMT.LEKSHMI SWAMINATHAN
RESPONDENTS/RESPONDENTS:
1
AJESH KUMAR, S/O.GOPALAKRISHNAN ACHARI,
AGE NOT KNOWN, RESIDING AT PAVALASSERIL HOUSE,
P.O.KIDANGOOR SOUTH, PALA 686 572.
2
VINOD P.M, S/O.MONY ACHARI, AGED 36 YEARS,
RESIDING AT PAVALASSERIL HOUSE,
P.O.KIDANGUR SOUTH P.O., PALA 686 572.
3
THE NATIONAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD,
KOZHIKODE-673 006.
MACA 1493 of 2013 2
R3 BY ADV SRI.T.V.AJAYAKUMAR, STANDING COUNSEL
HIS
T MOTOR
ACCIDENT
CLAIMS
APPEAL HAVING BEEN
FINALLY
HEARD
ON
04.06.2024,
THE
COURT
ON
THE
SAME
DAY
DELIVERED
THE
FOLLOWING:
MACA 1493 of 2013 3
J U D G M E N T
The claimant in OP(MV) No.1165 of 2010 on the file of
Principal Motor Accidents Claims Tribunal, Kozhikode, filedthis
appeal challenging the award on the ground of inadequacy of
compensation.
2. The appellant, who was a 30 year old Mechanic, met
with a road traffic accident on 24.02.2008 at 3.30 p.m.,while
he wasridingamotorcycle,fromElathurtoPuthiyanirathu.He
was knocked down by KL-35-8453 car driven by the 2nd
respondent, in a rash and negligent manner. He sustained
serious injuries including compound comminuted fracture
Grade III of both bones of right leg with loss ofmuscletissue
with exposure of posterior tibial artery and primary optic
atrophy of left eye, resulting in permanent disability of 37%.
He was earning monthly income of Rs.8,000/- as a Mechanic,
andhesufferedmuchlossphysicallyaswellasfinancially,due
to the injuries suffered in the accident. So he approached the
Tribunal claiming compensation of Rs.8,00,000/-, but learned
MACA 1493 of 2013 4
Tribunal awarded only Rs.3,33,288/-. Hence this appeal.
3.The1strespondentwastheowneroftheoffendingcar,
2nd respondent was its driver and the 3rd respondent was its
Insurer. The 3rd respondent-Insurer admitted the accident as
well as the Insurance Policy of the offending vehicle on the
relevant date. Learned Tribunal found that the accident
occurredduetotherashandnegligentdrivingofthecarbythe
2nd respondent, and hence the 1st respondent-owner was
vicariously liable. Since that vehicle was validly insured with
the 3rd respondent, the Insurer was found liable to indemnify
the Insured, and thereby to compensate the appellant.
4. Now thisCourtiscalledupontoanswerwhetherthere
is any illegality, irregularity or impropriety in the impugned
award, warranting interference by this Court.
5. Heard learned counsel for the appellant and learned
counsel for the 3rd respondent-Insurer.
6. Learned counsel for the Insurer wouldsubmitthatthe
compensation awarded by the Tribunal is just and reasonable
MACA 1493 of 2013 5
and so, it needs no modification, but learned counsel for the
appellant would submit that the compensation awarded is too
low as the Tribunal fixed notional income of the appellant @
Rs.3,000/-, though hewasactuallyearningmonthlyincomeof
Rs.8,000/-.
7. Truethat,therewasnoevidencetoprovethemonthly
income of the appellant. But learned counsel for theappellant
would rely on the decision Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Limited
[AIR 2011 SC 2951], to say that,evenifhewasconsidered
as a coolie worker, he was eligible to get his notional income
fixed @ Rs.6,500/- as the accident was in the year 2008.
Based on thatdecision,thisCourtisinclinedtofixhisnotional
income @ Rs.6,500/-.
8. Learned Tribunal assessed loss of earning for six
months@Rs.3,000/-.Sincewehavefixedhisnotionalincome
@ Rs.6,500/-, for six months' period, he is eligible to get
Rs.39,000/- (6,500x6) as loss of earning. After deducting
MACA 1493 of 2013 6
Rs.18,000/- already awarded by the Tribunal, he is entitled to
get the balance amount of Rs.21,000/-.
9. Towards extra nourishment, learned Tribunal awarded
only Rs.2,000/-. The appellant was hospitalised for 22 days
and even after discharge, he was not able to resume his
normal life, for about six months. So this Court is inclined to
award Rs.1,000/- more towards extra nourishment.
10. Towards bystander expenses, learned Tribunal
awarded only Rs.150/- per day, for the period of
hospitalisation. Since the accident was in the year 2008, this
Court is inclined to give bystander expenses @ Rs.250/- per
day. If so for 22 days of hospitalisation, he is entitled to get
enhancement of Rs.2,200/- towards bystander expenses.
11. Towards pain and suffering, this Court is inclined to
award Rs.10,000/- more, considering the nature of injuries
suffered and also the period of hospitalisation.
12. Towards disability compensation, the appellant is
entitled to get Rs.4,90,620/-, taking his monthly income as
MACA 1493 of 2013 7
Rs.6,500/- and accepting his disability as 37% as reported by
the Medical BoardinExt.C1certificate(6,500x12x17x37/100).
AfterdeductingRs.2,26,440/-alreadyawardedbytheTribunal,
the appellant is entitled to get the difference of Rs.2,64,180/-
as enhanced compensation for disability.
13. Towards loss of amenities, learned Tribunal awarded
onlyRs.5,000/-againsthisclaimofRs.25,000/-.Theappellant
was a 30 year old man at the time of accident. Ext.C1
Disability Certificate issued by the Medical Board of Medical
College Hospital, Calicut, shows that there was 20% loss of
right ankle ROM and there was partial difficulty in squatting.
Therewasprimaryopticatrophyonhislefteyeandsothetotal
percentage of permanent disability was assessed as 37%.
Considering that aspect, this Court is inclined to award
Rs.25,000/-asclaimedbytheappellantunderthehead'lossof
amenities'. After deducting Rs.5,000/- already awarded, he is
entitled to get the balance amount of Rs.20,000/- under the
head 'loss of amenities'.
MACA 1493 of 2013 8
14. The compensation awarded by the Tribunal under all
other heads seems to be reasonable and hence it needs no
modification.
Head of claim mount
A mount
A ifference to
D
awarded by awarded in be drawn as
the Tribunal appeal enhanced
compensation
Loss of earning Rs.18,000/- Rs.39,000/- Rs.21,000/-
Extra nourishment Rs.2,000/- Rs.3,000/- Rs.1,000/-
ystander
B Rs.3,300/- Rs.5,500/- Rs.2,200/-
expenses
Pain and suffering Rs.25,000/- Rs.35,000/- Rs.10,000/-
ompensation for
C
permanent Rs.2,26,440/- Rs,4,90,620/- Rs.2,64,180/-
disability
Loss of amenities Rs.5,000/- Rs.25,000/- Rs.20,000/-
Total Rs.3,18,380/-
15.Intheresult,theappellantisentitledtogetenhanced
compensation of Rs.3,18,380/-.
16. The 3rd respondent-Insurer is directed to deposit
enhanced compensation of Rs.3,18,380/- (Rupees Three Lakh
Eighteen Thousand Three Hundred and Eighty only), with 7%
MACA 1493 of 2013 9
interest per annum, from the date of petition till the date of
deposit,(excluding40daysofdelayinfilingtheappeal)before
thePrincipalMotorAccidentsClaimsTribunal,Kozhikode,within
a period of two months from the date of receipt of a copy of
this judgment. Learned Tribunal shall disburse that amount to
the appellant after deductinghisliabilities,ifany,towardstax,
balance court fee, legal benefit fund etc.
The appeal is allowed to the extent as above, and no
order is made as to costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
