Kerala High Court
Ganeshan vs The New India Assurance Co.Ltd on 5 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
WEDNESDAY, THE 5
DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
MACA NO. 2221 OF 2014
AGAINST THE AWARD DATED IN OP(MV) NO.1290 OF 2011 OF PRINCIPAL
MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
ANESHAN, AGED 48 YEARS,
G
S/O.GOPALAN, RESIDING AT 163-B, VELIYANCHERY,
ARJUN NIVAS, MUTTAM, KUNI PARAMBA, P O KOMERI,
KOZHIKODE.
Y ADVS.
B
SRI.AVM.SALAHUDIN
SMT.EMIL STANLEY
RESPONDENT/3RD RESPONDENT:
HE NEW INDIA ASSURANCE CO.LTD.,
T
SILVER PLAZA BUILDING, MAVOOR ROAD, KOZHIKODE-673001.
MACA 2221 of 2014 2
BY ADV SRI.P.V.KURIACHAN
SRI.N.S.NAJEEB (SC, NEW INDIA ASSURANCE)
HIS
T MOTOR
ACCIDENT
CLAIMS
APPEAL HAVING BEEN
FINALLY
HEARD
ON
05.06.2024,
THE
COURT
ON
THE
SAME
DAY
DELIVERED
THE
FOLLOWING:
MACA 2221 of 2014 3
J U D G M E N T
This appeal is at the instance of the claimant in
OP(MV)No.1290of2011onthefileofPrincipalMotorAccidents
Claims Tribunal, Kozhikode, impugning the award on the
ground of inadequacy of compensation.
2. On 07.04.2011,at5.15p.m.,theappellantmetwitha
road traffic accident, whilehewasridingamotorcyclethrough
Pottammal - Calicut road. He was knocked down by
KL-11/AB-9360 motorcycle ridden by the 2nd respondent in a
rash and negligent manner. He sustained serious injuries
including fracture to neck of left fibula, left tibial plateau and
otherinjuriesalloverthebody.Hewasadmittedandtreatedin
BabyMemorialHospital,Kozhikode,for21days.Heunderwent
three surgeries, and he suffered permanent disability of 30%,
due to the injuries suffered in the accident. He was an auto
driver aged 45 at the time of accident. He approached the
Tribunal claiming compensation ofRs.10,00,000/-,butlearned
Tribunal awarded only Rs.4,61,197/-, Hence this appeal.
MACA 2221 of 2014 4
3. The 1st respondent was the owner of the offending
motorcycle, 2nd respondent was its rider and the 3rd
respondent was its Insurer. The 3rd respondent-Insurer
admitted the Policy, but disputed the liability to compensate
the claimant/appellant. Learned Tribunal, after analysing the
factsandevidence,foundthattheaccidentoccurredduetothe
rash and negligent riding of the offending motorcycle by the
2nd respondent, of which the 1st respondent was the owner.
Sincethatvehiclewasvalidlyinsuredwiththe3rdrespondent,
learned Tribunal found that the 3rd respondent was liable to
indemnify the owner, and thereby to compensate the claimant.
4. In the appeal, the sole respondent-Insurer appeared
throughcounselandsubmittedthatthecompensationawarded
by the Tribunal is just and reasonable and hence it needs no
modification.
5. NowthisCourtiscalledupontoanswerwhetherthere
is any illegality, irregularity or impropriety in the impugned
award, warranting interference by this Court.
MACA 2221 of 2014 5
6. Heard learned counsel Sri.A.V.M.Salahuddeen
appearing for the appellant and Sri.N.S.Najeeb, learned
counsel appearing for the respondent-Insurer.
7. Learned counsel for the appellant would submit that
the appellant was a 45 year old autorickshaw driver, earning
monthly income of Rs.10,500/-. But learnedTribunalassessed
compensation fixing his notional income @ Rs.4,000/- only,
which according to him is on the lower side. Learned Tribunal
found that, no documents were produced by the claimant to
prove his monthly income and so, his notional income was
taken as Rs.4,000/-. Learned counsel for the appellant relied
on the decision Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited [AIR
2011 SC 2951],tosaythatevenacoolieworkerwaseligible
togethisnotionalincomefixed@Rs.8,000/-intheyear2011.
So, he is eligible to get his notional income fixed, at least in
parwiththat.Relyingonthatdecision,thisCourtisinclinedto
fix his notional income @ Rs.8,000/- per month.
MACA 2221 of 2014 6
8. Learned Tribunal assessed loss of earning for four
months only. The appellant had suffered fracture of neck of
left fibula and tibial plateau and he was hospitalised for 21
days. Ext.C1 Disability Certificate shows that he hadsuffered
30% disability due to the injuries suffered in the accident. So
this Court is inclined to takehislossofearningforaperiodof
six months @ Rs.8,000/-, which will come to Rs.48,000/- in
total (8,000x6). After deducting Rs.16,000/- alreadyawarded,
he is entitled to get the balance amount of Rs.32,000/- as
enhanced compensation under the head 'loss of earning'.
9. Towards transportation expenses, learned Tribunal
awardedonlyRs.1,000/-againsthisclaimofRs.5,000/-.Ithas
comeoutinevidencethathewashospitalisedontwodifferent
spells, and so this Court is inclined to award Rs.1,000/- more
under the head 'transportation expenses'.
10. Towards extranourishment,learnedTribunalawarded
only Rs.1,500/-. He was hospitalised for 21 days and even
after discharge, he was taking rest at home. So this Court is
MACA 2221 of 2014 7
inclined to award Rs.1,000/- more under the head 'extra
nourishment'.
11. Towards bystander expenses, learned Tribunal
awarded Rs.250/- perdayfor21daysofhospitalisation.Since
the accident and thehospitalizationwasintheyear2011,this
Court is inclinedtoawardRs.300/-perdayfor21days.Sohe
is entitled to get an enhancement of Rs.1,050/- towards
bystander expenses.
12. Towards pain and suffering,learnedTribunalawarded
only Rs.25,000/- against his claim of Rs.1,50,000/-. He had
suffered fracture to left fibula and tibial plateau, and he was
hospitalizedfor21days.Heunderwentthreesurgeriesandthe
medicalbillsitselfamountstoRs.2,14,747/-.Consideringthese
aspects,thisCourtisinclinedtoawardRs.10,000/-moreunder
the head 'pain and suffering'.
13. Learned Tribunal assessed disability compensation
taking monthly income of the appellant @ Rs.4,000/- and
adopting the multiplier of 13. We have fixed his notional
MACA 2221 of 2014 8
income @ Rs.8,000/-. Since he was aged 45, the proper
multiplier was 14. So he was eligible to get Rs.4,03,200/-
towards disability compensation for 30% disability
(8,000x12x14x30/100). After deducting Rs.1,87,200/- already
awarded by the Tribunal, he is entitled to get the balance
amount of Rs.2,16,000/- as enhanced compensation for
disability.
14. Towards loss of amenities, learned Tribunal awarded
Rs.10,000/- thoughhehadnotmadeanyclaimforthat.Since
the appellant suffered 30% disability as seen from Ext.C1
Disability Certificate, involvingpartialstiffnessofleftkneeand
hip, with moderate restriction in daily activities, this Court is
inclined to award Rs.5,000/- more under the head 'loss of
amenities'.
15. The compensation awarded by the Tribunal under all
other heads seems to be reasonable and hence it needs no
modification.
MACA 2221 of 2014 9
Head of claim Amount Amount ifference to
D
warded by
a awarded in be drawn as
the Tribunal appeal enhanced
compensation
Loss of earning Rs.16,000/- Rs.48,000/- Rs.32,000/-
ransportation
T Rs.1,000/- Rs.2,000/- Rs.1,000/-
expenses
Extra nourishment Rs.1,500/- Rs.2,500/- Rs.1,000/-
ystander
B Rs.5,250/- Rs.6,300/- Rs.1,050/-
expenses
Pain and suffering Rs.25,000/- Rs.35,000/- Rs.10,000/-
ompensation for
C
permanent Rs.1,87,200/- Rs,4,03,200/- Rs.2,16,000/-
disability
Loss of amenities Rs.10,000/- Rs.15,000/- Rs.5,000/-
Total Rs.2,66,050/-
16. In the result, the appellant is entitled to get
Rs.2,66,050/- as enhanced compensation.
17. The respondent-Insurer is directed to deposit the
enhanced compensation of Rs.2,66,050/- (Rupees Two Lakh
Sixty Six Thousand Fifty only) with 8% interest per annum
from the date of petition till the date of deposit, before the
MACA 2221 of 2014 10
Principal Motor Accidents Claims Tribunal, Kozhikode, within a
periodoftwomonthsfromthedateofreceiptofacopyofthis
judgment. Learned Tribunal shall disburse that amount to the
appellant, after deducting his liabilities if any, towards tax,
balance court fee, legal benefit fund etc.
The appeal is allowed to the extent as above with
proportionate costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
