Kerala High Court

Narayanankutty vs Sandeep Prakash on 7 June, 2024

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
       FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946
                        MACA NO. 4050 OF 2017
AGAINST THE AWARD DATED IN OPMV NO.1301 OF 2014 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, PERUMBAVOOR
APPELLANT/PETITIONER IN OP (MV):

 NARAYANANKUTTY
 AGED 51 YEARS
 NOW AGED 51 YEARS, S/O. SANKARAN, CHEMPANKATTIL HOUSE, AKAPARAMBU,
 NEDUMBASSERY, ALUVA TALUK, MEKKAD P.O., ERNAKULAM DISTRICT-683589.

 BY ADVS.
 SRI.K.SHRIHARI RAO
 SMT.N.SHOBHA


RESPONDENTS/RESPONDENTS:

1 SANDEEP PRAKASH
  S/O. PRAKASAN, 283, KIZHAKOOTTAYIL HOUSE 7, ERAMANGALAM,
  VELIYANKODE PANCHAYATH, MALAPPURAM DISTRICT-679587.

2 NEW INDIA ASSURANCE CO. LTD. 1215
  12TH FLOOR, NAURANG HOUSE, 21, KASTHURBA GANDHI MARG, NEW
  DELHI-110001.

3 BHASKARAN NAIR
  S/O. KESAVANPILLAI, NISHA NIVAS, AKAPARAMBU, NEDUMBASSERY, MAKKAD
  P.O., ERNAKULAM DISTRICT-683589.

4 UNITED INDIA INSURANCE CO. LTD.
  K. G. TOWERS, THRISSUR ROAD, ANGAMALY-683572.

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                          2

M.A.C.A. No. 4050 of 2017




                              SOPHY THOMAS, J.
                             =====================

                             M.A.C.A. No. 4050 of 2017

                            ========================

                               JUDGMENT

Dated this the 07th day of June 2024

This appeal is at the instance of the claimant in O.P. (MV)

No. 1301 of 2014 on the file of Motor Accidents Claims Tribunal,

Perumbavoor, impugning the award on the ground of inadequacy of

compensation.

2. On 01.07.2014, at about 09.45 pm while the appellant was

pillion riding a motorcycle, he was knocked down by KL- 54D- 2002

car driven by the 1st respondent in a rash and negligent manner.

He suffered serious injuries including fracture of both bones of both

lower limbs, left hip fracture, multiple facial bone fracture coupled

with multiple lacerations and abrasions over face, knee, ankle, etc,.

He was hospitalized for 24 days at KIMS hospital, Edappally. He

was a 48-year-old carpenter earning monthly income of Rs.10,000/-

during the period of accident. He suffered much loss, physically

and financially, due to the injuries suffered in that accident. He

approached the Tribunal claiming compensation of Rs.10,00,000/-.

But learned Tribunal awarded only Rs.2,24,2494/- and hence this

appeal.

3. The 1st respondent was the owner cum driver of the offending

car, and the 2nd respondent was its insurer. The 3rd respondent

was the owner cum rider of the motorcycle in which the appellant

was pillion riding. The 4th respondent is the insurer of that

motorcycle.

4. Before the Tribunal respondents 1 and 3 remained exparte.

Respondents 2 and 4, the insurer of the offending car, as well as of

the motorcycle involved in the accident, contested the case.

Learned Tribunal on analyzing the facts and evidence, found that

the accident occurred due to the rash and negligent driving of the

offending car by the 1st respondent, and since that vehicle was duly

insured with the 2nd respondent insurer, they were directed to

compensate the appellant.

5. In the appeal, the 2nd respondent entered appearance through

counsel, and admitted the policy of the offending car. According to

them, the compensation awarded by the Tribunal is just and

reasonable, and hence it needs no modification.

6. Now this Court is called upon to answer whether there is any

illegality, impropriety, or irregularity in the impugned award of the

Tribunal warranting interference by this Court.

7. Heard learned counsel for the appellant, and learned counsel

for the 2nd respondent - insurer of the offending car.

8. Learned counsel for the appellant would submit that the

appellant was a 48-year-old carpenter earning monthly income of

Rs.10,000/- at the time of the accident. But, learned Tribunal fixed

his notional income @ Rs.6,000/- alone which according to him is

on the lower side. True that, no records were there to prove his

monthly income as a carpenter. But relying on the decision

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Limited [AIR 2011 SC 2951], learned counsel

for the appellant would argue that, even a coolie worker was eligible

to get his notional income fixed @ Rs.9,500/- in the year 2014. So,

placing reliance on that decision, this Court is inclined to fix his

notional income @ Rs.9,500/- per month.

9. Learned Tribunal assessed loss of income for a period of eight

months. Ext.A5 wound certificate shows the gravity of the injuries

suffered by him, and he was hospitalized for 24 days in total. Since

there was fracture of both bones of both lower limb and fractre of left

hip, he might not have been able to do any kind of job at least for a

period of ten months. So this Court is inclined to award

compensation for loss of earning for a period of ten months

@ Rs.9,500/-, which will come to Rs.95,000/- in total (9,500 x 10).

After deducting Rs.48,000/- already awarded by the Tribunal, the

appellant is entitled to get the balance amount of Rs.47,000/- under

the head loss of earning.

10. Towards extra nourishment learned Tribunal awarded only

Rs.2,000/- against his claim of Rs.10,000/-. He had suffered

multiple facial bone fractures, so that, he might not have been able

to take normal food for a considerable period of time. So this Court

is inclined to award Rs.1,000/- more under the head extra

nourishment.

11. Towards bystander expenses, learned Tribunal awarded

Rs.250/- per day for 24 days of hospitalization. This court is inclined

to award bystander expenses @ Rs.350/- day, as the accident was

in the year 2014. So he is eligible to get Rs.2,400/- more under the

head bystander expenses.

12. Towards pain and suffering, learned Tribunal awarded only

Rs.60,000/-. The appellant had suffered fracture of both bones of

both lower limbs, left hip fracture multiple facial bone fracture,

multiple lacerations and abrasions, and he was hospitalized for 24

days. Learned counsel for the appellant would submit that, out of

24 days of hospitalization, he was in ICU for 14 days. Considering

the nature of injuries suffered, even after discharge, he might not

have been able to lead a normal life for a considerable period of

time. So, this Court is inclined to award Rs.20,000/- more, under

the head pain and suffering.

13. The appellant had suffered 3% permanent disability as seen

from Ext.C1 disability certificate issued by the Medical Board.

Learned Tribunal assessed disability compensation taking his

monthly income @ Rs.6,000/-. We have fixed his monthly income

@ Rs.9,500/-. When compensation is assessed for 3% permanent

disability taking his monthly income as Rs.9,500/-, it will come to

Rs.44,460/- (9,500 x 12 x 13 x 3/100). After deducting Rs.28,080/-

already awarded by the Tribunal, he is entitled to get the balance of

Rs.16,380/- under the head disability compensation.

14. Under the head loss of amenities, learned Tribunal awarded

Rs.45,000/- against his claim of Rs.2,00,000/-. The appellant was a

48-year-old carpenter, and he suffered multiple fractures including

hip fracture and fracture of both bones of both limbs. So the

disability which he suffered on account of the injuries might have

affected his carpenter job to a great extent. Considering that

aspect, this Court is inclined to award Rs.15,000/- more towards

loss of amenities.

15. The compensation awarded by the Tribunal under all other

heads seems to be reasonable, and hence it needs no modification.

16. 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 earning 48,000/- 95,000/- 47,000/-

                  Extra        2,000/-         3,000/-        1,000/-
               nourishment







                 Bystander     6,000/-       8,400/-     2,400/-
                 expenses

           Pain and suffering 60,000/-       80,000/-   20,000/-

                Permanent     28,080/-       44,460/-   16,380/-
                 disability

           Loss of amenities 45,000/-        60,000/-   15,000/-



                              Total                     1,01,780/-

17. In the result, the appellant is entitled to get enhanced

compensation of Rs.1,01,780/- ( 47,000 + 1000 + 2,400 + 20,000 +

16,380 + 15,000) in total.