Kerala High Court

Noby N Paulose vs Anish V Menon on 20 June, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
 THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
                      MACA NO. 2357 OF 2019
 [AGAINST THE AWARD DATED 16.10.2018 IN OP(MV) NO.150 OF 2015 OF
          MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA]
APPELLANT:

           NOBY N PAULOSE
           AGED 38 YEARS
           S/O PAULOSE, NELLICKAL HOUSE, VAZHAPPILLY
           VELLOORKUNNAM KARA, VELLOORKUNNAM VILLAGE,
           MUDAVOOR P. O. MUVATTUPUZHA TALUK, PIN - 680 673.
           BY ADVS.
           MURALI MANOHAR.R
           P.V.ELIAS


RESPONDENTS:

    1      ANISH V MENON
           S/O. SANTHINI,10/29, MADATHANTHI HOUSE, WEST
           KADUNGALLOOR, ALUVA, ERNAKULAM DISTRICT - 683101
    2      LIVIN K. V.
           S/O. VIJAYAN, KATTIPPARAMBIL HOUSE, WARD NO.1,
           KADUNGALLOOR PANCHAYATH, ALANGATH VILLAGE,
           KADUNGALLOOR DESOM, ALUVA - 683101
    3      RELIANCE GENERAL INSURANCE COMPANY,
           ALAPPUZHA - 688001
    4      VISHNU
           KALIYANATTU HOUSE, KANICHUKULANGARA, CHERTHALA,
           ALAPPUZHA - 688524
           BY ADVS.
           SRI.MATHEWS JACOB (SR.)
           SRI.P.JACOB MATHEW



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 20.06.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.2357 of 2019

                                    :-2-:


                               JUDGMENT

This appeal has been filed by the claimant in OP(MV)

No.150/2015 on the file of the Motor Accidents Claims Tribunal,

Muvattupuzha. The respondents herein are the respondents before the

tribunal.

2. According to the appellant, on 8.10.2014, at around 9.15 am,

at Texmo Junction in Oachira, Kayamkulam, while he was travelling in

his bike bearing Registration No.KL-17/E-5476 from south to north and

when he reached at the place of the accident, the offending vehicle Tata

Mini lorry bearing Registration No.KL-04-Q-7230 came in the opposite

direction driven in a rash and negligent manner by the second

respondent at high speed and hit the motorcycle of the appellant. The

bike overturned and the appellant had sustained serious injuries. The

appellant approached the tribunal claiming a total compensation of

₹11,26,500/- limited to ₹8,00,000/-.

3. The third respondent-insurer filed a written statement, admitting

the insurance policy, but disputing the quantum of compensation

claimed. Before the tribunal, oral evidence was adduced by the

:-3-:

petitioner and Exts.A1 to A20 were marked on the side of the

appellant/petitioner and Exts.B1 and B2 on the side of the respondents.

The tribunal, after analysing the pleadings and materials on record,

awarded a sum of ₹4,49,400/- as compensation under different heads

with interest @7% per annum from 20.02.2015 till realization, against

the third respondent being the insurer. Dissatisfied with the quantum of

compensation awarded by the tribunal, the claimant has come up in

appeal.

4. Heard the learned counsel for the appellant and the learned

Standing Counsel for the third respondent- insurer.

5. The learned counsel for the appellant claims enhancement

mainly under the following heads:-

5.1 Notional income: Learned counsel for the appellant submits that

the claimant was a television mechanic and was earning a monthly

income of ₹25,000/-. It is also submitted that since there is no evidence

to prove his income, his income ought to have been fixed as held in

Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011)13

SCC 236].

:-4-:

On a perusal of the award of the tribunal, it is seen that the

tribunal has fixed the income of the appellant as ₹7000/-. Though the

appellant claimed to be a television mechanic there is no evidence to

prove the income of the appellant. Thus, the notional income can be

fixed, following Ramachandrappa (supra) at ₹9500/- since the accident

was in the year 2014.

5.2 Loss of earnings: Learned counsel for the appellant submits

that due to the injury sustained, the appellant could not go for work for

almost five months. The tribunal had considered only four months for

loss of earnings. Considering the nature of the injuries sustained, I feel

that a five month period can be taken for considering compensation

under the head 'loss of earning', which is just and reasonable. The

compensation under the said head will be recalculated and the total

compensation under the said head is enhanced to ₹47,500/-. Thus,

there will be an additional amount of ₹19500/-.

5.3 Bystander expenses- Learned counsel for the appellant submits

that the tribunal has only taken ₹250/- per day for awarding

compensation under the said head, which is not reasonable. From the

award it is seen that the claimant had undergone 20 days of inpatient

:-5-:

treatment due to the injury. Hence, I feel that since the accident was in

2016, an amount of ₹350/- can be granted per day under the head

'bystander expenses' and thus, there will be an additional compensation

of ₹2000/- under the said head, totalling to ₹7000/-.

5.4 Pain and suffering: Learned counsel for the appellant submits

that the appellant claimed ₹1,50,000/- under the said head, but the

tribunal awarded ₹60,000/-. The injury sustained by the appellant is

fracture both bones-left leg distal 1/3rd shaft with open wound with no

distal neurovascular deficit. On a perusal of the same, I am of the

opinion that an amount of ₹75,000/- would be just and reasonable under

the said head. Hence, there will be an additional amount of ₹15,000/-

under the said head.

5.5 Permanent and continuing disability: Since the notional

income has been fixed as ₹9500/-, the compensation under the said

head is ₹9500x12x16x3/100 = ₹54,720/-. Thus, there will be an

additional amount of ₹14,400/- under the said head.

5.6 Loss of convenience and amenities : The appellant was only

aged 35 years at the time of accident and he was stated to be a

:-6-:

television mechanic and due to the injuries sustained, he could not go

for work for a period of five months, Hence, an additional amount of

₹10,000/- can be granted under the said head, totalling an amount of

₹40,000/-.

Thus, the impugned award of the tribunal is modified as follows;

Sl.No. Head of claim Amount Amount modified total claimed awarded in appeal compensation by the tribunal

1 Loss of 125000 28000 19500 47,500 earnings

2 Transportatio 30,000 10000 Not n to hospital modified 10,000 and back

3 Extra 50,000 10,000 Not 10,000 nourishment modified

4 Hospital 2,50,000 2,26,353. Not 2,26,353.76 expenses 76 modified

5 Bystanders 6500 5000 2000 7000 expenses

6 Damage to 25,000 1000 Not 1000 clothings and modified other articles

:-7-:

7 Cost of 25,000 13643.49 Not 13643.49 damages modified caused to the vehicle of the petitioner

8 Cost of 15,000 - - -

damages by loss of mobile phone of the claimant

9 Pain and 1,50,000 60,000 15,000 75,000 suffering

10 Permanent 1,00,000 40,320 14,400 54,720 and continuing disability

11 Future 1,50,000/- - - -

earning power

12 Loss of 50,000 30,000 10,000 40,000 convenience and amenities

13 Future 1,50,000 25,000 Not 25,000 treatment modified

Total 11,26,500 4,49,317. 60,900 5,10,217.25 8,00,000 25

Accordingly, the appeal is allowed in part and the

appellant/claimant is awarded an additional compensation of ₹60,900/-

:-8-:

(Rupees Sixty Thousand Nine Hundred only) over and above the

compensation awarded by the tribunal with interest @ 7% per annum

from the date of petition till realization and proportionate costs. The

respondent insurer shall deposit the said amount together with interest

and costs within a period of two months from the date of receipt of a

certified copy of this judgment. The claimant shall furnish copies of the

PAN Card, ADHAAR Card and bank details before the respondent

insurer within a period of one month so as to enable the insurance

company to make the deposit as ordered above. In case of failure to

furnish details as above, it shall be open for the insurance company to

deposit the said amount before the tribunal. Upon such deposit being

made, the entire amount shall be disbursed to the appellant at the

earliest in accordance with law. However, it is made clear that the

enhanced compensation will not carry interest for the period of delay of

123 days in filing the appeal.