Kerala High Court

National Insurance Company Limited vs John Varkey on 3 May, 2024

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
  FRIDAY, THE 3RD DAY OF MAY 2024 / 13TH VAISAKHA, 1946
                  MACA NO. 1019 OF 2013
 AGAINST THE AWARD DATED 18.03.2013 IN OP(MV) NO.476 OF
  2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT:

          THE NATIONAL INSURANCE COMPANY LIMITED
          THODUPUZHA, REPRESENTED BY ITS MANAGER,
          REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.
          BY ADVS.
          SMT.M.J.INDUJA
          SEBASTIAN VARGHESE
RESPONDENTS:

    1     JOHN VARKEY
          AGED 53 YEARS
          RESIDING AT VELOOKARA HOUSE, EDAYARKARA,
          ELANJI VILLAGE - 686 665.
    2     JERRIN V JOHN
          AGED 24 YEARS
          RESIDING AT VELOOKARA HOUSE, EDAYARKARA,
          ELANJI VILLAGE - 686 665.
    3     JUSTIN V JOHN
          AGED 27 YEARS
          RESIDING AT VELOOKARA HOUSE, EDAYARKARA,
          ELANJI VILLAGE - 686 665.
    4     JEYIN V JOHN
          AGED 18 YEARS
          RESIDING AT VELOOKARA HOUSE, EDAYARKARA,
          ELANJI VILLAGE - 686 665.
    5     ALLEY JOHN
          W/O.JOHN,AGED 47 YEARS
          RESIDING AT VELOOKARA HOUSE, EDAYARKARA,
          ELANJI VILLAGE - 686 665.
    6     N.A.ABDUL SHUKKOOR
          S/O.NOOR MUHAMMED, SUBAIDA MAZIL,
          PUTHUPARIYARAM, PALAKKAD, VENNAKAM - 678 733.
    7     KURIACHAN
          S/O.ULAHANNAN, CHELAKATHINAL HOUSE, KAKKOOR
          KARA, THIRUMARADY VILLAGE, PRIVAVOM - 686 687.
 M.A.C.A.Nos.1019/2013 & 2249/2013           2




              BY ADVS.
              R. BINDU (SASTHAMANGALAM)
              SRI.B.KRISHNA MANI
              SMT.SMITHA PHILIPOSE


       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION       ON    03.05.2024,   ALONG       WITH   MACA.2249/2013,   THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.Nos.1019/2013 & 2249/2013         3




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
             THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
     FRIDAY, THE 3RD DAY OF MAY 2024 / 13TH VAISAKHA, 1946
                   MACA NO. 2249 OF 2013
AGAINST THE AWARD DATED 18.03.2013 IN OP(MV) NO.476 OF 2006
      OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANTS:

      1       JEYIN V.JOHN
              AGED 25 YEARS, S/O.LATE JOHN VARKEY,
              RESIDING AT VELOOKARA HOUSE,
              EDAUAR KARA,ELANJI VILLAGE.
      2       ALLEY V.JOHN
              AGED 54 YEARS
              W/O.LATE JOHN VARKEY, RESIDING AT VELOOKARA
              HOUSE,EDAUAR KARA,ELANJI VILLAGE.
              BY ADVS.
              SRI.R.BINDU (SASTHAMANGALAM)
              SRI.PRASANTH M.P
RESPONDENTS:

      1       N.A.ABDUL SHUKKOOR
              S/O.NOOR MUHAMMED,SUBAIDA MANZIL,
              PUTHUPARIYARAM,VENNAKAM,PALAKKAD, PIN 678 001
      2       KURIACHAN
              S/O.ULAHANNAN,CHELAKATHINAL HOUSE,
              KAKKOOR KARA,THIRUMARADY VILLAGE PIN 686 662
      3       THE NATIONAL INSURANCE COMPANY LIMITED
              THODUPUZHA, PIN 685584
      4       JERIN V.JOHN
              AGED 31, S/O.LATE JOHN VARKEY,
              RESIDING AT VELOOKARA HOUSE,EDAUAR KARA,
              ELANJI VILLAGE 686 665
      5       JUSTIN V JOHN
              S/O.LATE JOHN VARKEY,
              RESIDING AT VELOOKARA HOUSE,EDAUAR KARA,
              ELANJI VILLAGE 686 665
 M.A.C.A.Nos.1019/2013 & 2249/2013      4




              BY ADVS.
              SRI.SEBASTIAN VARGHESE
              SRI.K.B.RAMANAND

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 03.05.2024, ALONG WITH MACA.1019/2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.Nos.1019/2013 & 2249/2013          5




                                                                'C.R.'

                                    JUDGMENT

Dated this the 03rd day of May, 2024

Common facts govern M.A.C.A.No.1019 of 2013 and

M.A.C.A.No.2249 of 2013, which are filed challenging the Award

dated 18.03.2013 in O.P.(M.V.)No.476 of 2006 of the Motor

Accident Claims Tribunal, Muvattupuzha (hereinafter referred to

as the 'Tribunal'). Hence both M.A.C.As. are considered together.

2. Facts in brief from the O.P. (M.V.):

On 01.06.2005, at around 7.45 p.m., one Sri.John Varkey

while riding a motorcycle bearing registration No.KL-7/A-1928

through Perumbadavam-Anthiyal public road had a collision with

a jeep, which was driven by the 2nd respondent in a rash and

negligent manner. The jeep was being driven in excessive speed

from opposite direction and it had hit against the motorcycle

causing grievous injuries to Sri.John Varkey. He was taken to

Medical College Hospital, Kolenchery, for immediate treatment

and thereafter he underwent treatment at various hospitals

before succumbing to death on 17.05.2006. The O.P.(M.V.) had

been filed by Sri.John Varkey while he was alive and was

undergoing treatment. The owner, driver and insurer of the jeep

were respondents 1 to 3 in the O.P.(M.V). Subsequent to the

death of Sri.John Varkey, petitioners 2 to 5 in the O.P.(M.V), who

are his legal heirs, got impleaded.

3. Proceedings before the Tribunal:

The 6th and 7th respondents viz., the owner and driver of

the jeep respectively remained ex parte. The appellant Insurance

Company filed a written statement disputing the accident and

the quantum of compensation claimed. Issues were duly framed

by the Tribunal. Exts.A1 to A17 were produced by the petitioners

therein. Ext.B1 was marked by the appellant Insurance Company

and X1 was marked through a witness. Claimants examined PW1

& PW2 from their side. No witnesses were examined from the

side of the appellant Insurance Company.

4. Award of the Tribunal:

The Tribunal, after trial, awarded an amount of

Rs.3,33,900/- as compensation along with interest @ 7% per

annum from the date of the O.P.(M.V.) till its realisation.

Proportionate costs were also allowed.

5. Aggrieved by the Award, M.A.C.A.No.1019 of 2013 is

filed by the Insurance Company seeking to set aside or modify

the same. On the other hand against the same award,

M.A.C.A.No.2249 of 2013 is filed by the wife and son of deceased

Sri.John Varkey aggrieved by the quantum of compensation

awarded by the Tribunal. The 3rd respondent in the said M.A.C.A.

is the Insurance Company.

6. Heard the learned counsel appearing for the

respective parties. I now proceed to consider each M.A.C.A.

separately.

7. Contentions raised by the Appellant Insurance

Company in brief:

# The alleged collision between the bike and the jeep

is a fabricated story for the purpose of the claim.

# Injury suffered by the deceased was occasioned

due to the skidding of a motorcycle bearing

registration No.KL-7/A-1928 that was being driven by

Sri.John Varkey and not due to collision with the jeep.

# Ext.A6 wound certificate clearly states that the

accident occurred due to skidding of the motorcycle

which was being driven by the deceased.

# Entries in Ext.A6 were furnished by the son of the

deceased at the time of examination by the doctor.

Hence version of skidding of bike stated therein is

valid and reliable.

# Ext.A6 wound certificate is the earliest document

available in point of time. This increases its reliability.

# Subsequent documents produced as Exts.A1 to A5

as well as Ext.A12 judgment, are the result of

collusion and hence ought not to have been relied on

by the Tribunal.

# The deposition of PW1 Smt.Alley John, wife of the

deceased, substantiates the contention of the

appellant that the collision with jeep is a fabricated

story.

# This Court in the judgment dated 26.03.2013 in

M.A.C.A.No.1690 of 2005 (Branch Manager, The

Oriental Insurance Co. Ltd. v. Seetha Devi B. and

others), which has comparable facts and

circumstances, has held that if the evidence available

does not support the theory of accident, then the

Insurance Company cannot be saddled with the

liability to pay compensation. The said dictum applies

to the case at hand.

8. Per contra, the counsel for respondents 1 to 5

contends as follows:

# Entries in Ext.A6 wound certificate are not reliable

and conclusive.

# Entries in Ext.A6 could have been furnished by the

by-standers who took the deceased to the hospital

from the accident site.

# Ext.A6 has no reliability in the light of Exts.A1 to A5

and A12 documents which corroborate the evidence

tendered by PWs 1 and 2.

# Exts.A1 to A5 which are the certified copies of the

FIR & FIS in Crime No.167 of 2005 of Koothattukulam

Police Station, the AMVI reports of the motorcycle and

the jeep, the scene mahazar and the charge sheet in

Crime No.167 of 2005 respectively, override the

version of the accident given in Ext.A6 wound

certificate.

# Ext.A12 which is the certified copy of the judgment

in C.C.No.27 of 2006 of JFCM-I, Muvattupuzha, which

evidences that the 7th respondent driver had been

charged under Sections 279 and 338 of the Indian

Penal Code and that he pleaded guilty and had

remitted the fine amount, renders the entry in Ext.A6

wound certificate unreliable.

# This Court has in the judgment reported in the

New India Assurance Company Ltd. v.

Pazhaniammal and others [2011 (3) KLT 648] held

that production of the police charge sheet is prima

facie sufficient evidence of negligence for the purpose

of a claim under Section 166 of the Motor Vehicles

Act. It is now trite law that if the police charge sheet

does not satisfy their judicial conscience, Tribunals

can reject it and can call upon the parties to adduce

oral evidence to establish the alleged negligence.

# Hence the appeal by the insurer is only to be

dismissed.

9. The learned counsel for the appellant, based on

Ext.A6, submits that the cause of the accident is skidding of the

motorbike and not due to collision with the bike. He places

reliance on Ext.A6 for the reason that it is earliest in point of

time. While the time factor as pointed out by the counsel in

favour of Ext.A6 is pertinent, it is also to be noted that Ext.A6

document cannot be considered in isolation. It has to be weighed

against Exts.A1 to A5 which reveal a different version of events

that occurred. Since cause of the accident as stated in Ext.A6

and Exts.A1 to A5 vary, the trustworthiness and legal reliability

of each have to be considered separately. Exts.A1 to A5 are

certified copies of the FIR & FIS in Crime No.167 of 2005 of

Koothattukulam Police Station, the AMVI reports of the

motorcycle and the jeep, the scene mahazar and charge sheet in

Crime No.167 of 2005, respectively. The very nature of the said

documents are such that they cannot be easily brushed aside

basing solely on Ext.A6 certified copy of the wound certificate

issued from the MOSC Medical College Hospital, Kolenchery. The

credibility of Exts.A1 to A5 is further buttressed by Ext.A12

document which is the certified copy of the Judgment in

C.C.No.27 of 2006 of JFCM-I, Muvattupuzha. The said judgment

clearly reveals that in the crime registered against the driver of

the jeep, under Sections 279 and 338 of the IPC, he had

pleaded guilty and had remitted the fine amount. Though the

counsel for appellant would contend that the said judgment is

the result of collusion between the concerned, no steps have

been taken towards substantiating the said allegation. A conjoint

reading of Exts.A1 to A5 and Ext.A12 unequivocally reveal that

the version of collision of the motorcycle with the jeep on

01.06.2005 and the injury occasioned to the deceased Sri.John

Varkey are reliable and convincing. Attempt to contradict the

same based on a different version stated in Ext.A6 wound

certificate, which document, axiomatically is produced and

marked by the petitioners themselves in the O.P.(M.V.), has been

unsuccessful. As regards the entry in Ext.A6 wound certificate

that the accident occasioned due to the skidding of the

motorcycle, the Tribunal had concluded, and rightly so, that the

same could have been an entry made based on the cryptic

information furnished by the by-standers at the time when the

deceased was admitted to the hospital. No attempt is seen made

to substantiate the version stated in the wound certificate by

producing any supporting evidence. Though during the hearing,

the deposition of PW1 was relied on in an attempt to buttress

the version of accident due to skidding of the motorcycle, a

reading of the evidence of PW1 in its entirety clearly points

towards the 7th respondent driver driving the vehicle negligently

and causing the accident.

10. Facts being so, it is relevant also to appreciate the law

governing the field. As contended by the counsel for the

respondents, it is trite and settled law as laid down in

Pazhaniammal's case mentioned above that police charge

sheet is prima facie sufficient evidence of negligence on the part

of the driver. The same dictum is followed in Kolavan v. Salim

[2018 (1) KLT 489] and Samadh M.B. & ors. v. Binu & ors.

[2020 KHC 444]. No attempt has been made by the appellant

Insurance Company to adduce independent evidence of the

purported occurrence as envisaged in Krishnakumar v. Madhu

P.S. and ors. [2019 (3) KHC 925].

11. Thus in the facts and circumstances of the case and

as per the law governing the field, the reliance placed by the

Tribunal on Exts.A1 to A5 and A12 judgment is valid, tenable and

justified. The said documents sufficiently prove the collision

between the motorcycle driven by the deceased and the insured

jeep on 01.06.2005. The contentions based on the wound

certificate (Ext.A6) put forth by the Insurance Company cannot

be relied on for the reasons elaborated above. Tribunal's finding

that Sri.John Varkey sustained fatal injuries due to the rash and

negligent act of the 7th respondent, viz., the driver of the

offending jeep owned by the 6th respondent thus making the

appellant insurer liable to indemnify, is legally valid, correct and

hence sustained. Accordingly, M.A.C.A.No.1019 of 2013 filed by

the Insurance Company fails and it is dismissed.

12. M.A.C.A.No.2249 of 2013 is filed by the wife and son

of deceased Sri.John Varkey aggrieved by the quantum of

compensation awarded by the Tribunal in its Award dated

18.03.2013 in O.P.(M.V.) No.476 of 2006 wherein they were

petitioners 1 and 2 respectively. The Insurance Company is the

3rd respondent in this M.A.C.A.

13. Sri.R.Bindu Sasthamangalam, learned counsel

appearing for the appellants, put forth the following contentions:

# The Tribunal erred in awarding only an amount of

Rs.3,33,900/- as against the total claim of Rs.15

lakhs sought by the appellants.

# The Tribunal ought to have found that the death of

Sri.John Varkey resulted from the injuries sustained

by him in the accident.

# Medical records which prove that death of Sri.John

Varkey was a direct result of the injuries sustained in

the accident was ignored by the Tribunal.

# The Tribunal erred in concluding that, except

allegations no evidence is forthcoming to prove the

actual cause of the death of Sri.John Varkey.

# Fixing of the average monthly income of the

deceased notionally at Rs.6,000/- by the Tribunal is

erroneous. The Tribunal ought to have accepted

Rs.10,000/- as monthly income based on A13 to A17

documents.

# The Tribunal failed to appreciate Ext.A14 Saral

Form which evidenced that the total income of the

deceased in the year of the accident was

Rs.1,25,470/- and the said document ought to have

been the basis for computing the monthly income of

the deceased @ Rs.10,000/-.

# Amount of Rs.25,000/- allowed under the head for

loss of amenities is too meager and inadequate.

# The Hon'ble Supreme Court in Kavita Aggarwal v.

Sarbajit Singh (2023 KHC 7232) has held that

normally the ITR filed prior to the death of the

deceased should be reckoned however, income

relevant for the period prior to death of the deceased

is to be taken. Ratio therein has not been followed by

the Tribunal.

# Medical expenses of Rs.1,54,484/- allowed by the

Tribunal is erroneous because legally reliable medical

bills for an amount of Rs.1,70,189/- had been

produced before the Tribunal.

14. Per contra, the learned counsel appearing for the

Insurance Company submits that just and reasonable amounts

have been awarded by the Tribunal in the facts and

circumstances of the case and since the Award does not merit

any interference, the M.A.C.A. is only to be dismissed.

15. Contentions raised are considered in detail as

hereunder:

# Whether death of Sri.John Varkey resulted from the

injuries sustained by him in the accident :

16. The accident occurred on 01.06.2005. Sri.John Varkey

died on 17.05.2006, ie., 350 days after the accident. He was in

hospital for 204 days. Based on the said dates and time period

revealed therefrom, the learned counsel raises a prima facie

forceful contention that there is sufficient proximity between the

accident and death and the only conclusion that can be deduced

from the said fact is that his death was due to the injuries

sustained in the accident.

17. The Tribunal has, however, turned down this

contention stating the following reasons:

# No evidence is forthcoming to prove the cause of

death of Sri.John Varkey.

# Ext.X1 case sheet of Medical College Hospital,

Kottayam, issued on the date of the death states the

cause of death as due to cardio respiratory arrest.

# No post-mortem was conducted and hence no

medical evidence is available to prove the real cause

of death.

# Ext.A7 discharge summary dated as early as

28.07.2005 records that Sri.John Varkey was

conscious, responds to verbal stimuli and that he was

able to sit with support.

# Exts.A8 (dated 25.11.2005), A9 (07.11.2005) and

A10 (31.12.2005) reveal that condition of Sri.John

Varkey was slowly improving during the relevant time.

18. The learned counsel for the appellants submits that

the above reasons stated by the Tribunal are not sustainable

since none of the documents produced before the Tribunal shows

that the deceased was out of danger and had fully recovered

from the effects of the injuries sustained by him in the accident.

Counsel further contends that the nature of injuries sustained by

the deceased, the treatment he had undergone and the

proximity of his death with the accident would conclusively prove

that he died due to the fatal injuries sustained due to the

accident.

19. No details are forthcoming regarding the health

condition of Sri.John Varkey subsequent to Ext.A10 discharge

summary dated 31.12.2005 till his death on 17.05.2006. The

doctor who had last treated him was not examined nor any

documents to reveal his health condition after 31.12.2005 were

produced. The contention that the Tribunal ought to have noted

that none of the documents produced before it states that the

deceased was out of danger and had fully recovered from the

effects of the injuries sustained by him in the accident, is not

sustainable since what is required is a positive proof of the

health status/condition of the person rather than attempts to

draw negative assumptions from medical documents. Proximity

of death with the accident, as contended by the counsel cannot

be sustained in view of the fact that the documents produced

including Ext.A7 discharge summary dated 28.07.2005 and Exts.

A8 to A10 state that the patient was slowly recovering. The

discharge summary stated the following injuries:

"Multiple parenchymal contusion.

Diffuse subarachnoid hemorrhage.

Brain stem contusion.

Fracture of ribs 3,4,5,6,7 with left pneumothorax."

Ext.X1 case sheet of the Medical College Hospital, Kottayam,

where Sri.John Varkey breathed his last states that patient

developed cardio respiratory arrest and inspite of aggressive

remedial measures, he died at 3.55 a.m. on 17.05.2006. In the

light of the said reliable documentary evidence, the finding of

the Tribunal that except the bald allegation, no evidence is

forthcoming to prove the actual cause of death of Sri.John

Varkey is valid and cogent. The burden to prove the health

condition of Sri.John Varkey at the time of his death on

17.05.2006 was upon the appellants. The same was not fully

discharged by them. Similarly the appellants ought to have

produced cogent reliable evidence to prove that death of

Sri.John Varkey was solely attributable to the injuries suffered by

him in the accident that happened 350 days back. The said

burden has also not been discharged by the appellants.

Consequently, the conclusion arrived at by the Tribunal in the

Award that appellants are not entitled to get compensation

treating the death of Sri.John Varkey to have been occasioned

from accident is, valid and hence is accordingly upheld.

20. Quantum of Compensation awarded: It had been

contended by the appellants before the Tribunal that Sri.John

Varkey was a contractor by profession was earning a monthly

income of Rs.10,000/- at the time of the accident. The Tribunal

had however notionally fixed the monthly income at Rs.6,000/-.

Ext.A13 produced by the claimants reveals that the total income

of the deceased for the assessment year 2000-2001 was

Rs.50,220/-. Ext.A14 Saral Form produced by the claimants

reveals that the total income of the deceased for the financial

year 2004-2005 was Rs.1,25,470/- and that he had paid

Rs.25,855/- towards income tax. The accident had occurred on

01.06.2005 ie., subsequent to the filing of Ext.A14 which is

dated 18.05.2005. The counsel for the appellants submit that the

notional average monthly income of Rs.6,000/- arrived at by the

Tribunal is grossly inadequate and that the Tribunal erred in

brushing aside Ext.A14 which had revealed that the total income

of the deceased at the time of the accident as Rs.1,25,470/-.

The learned counsel relies on the dictum laid down by the

Hon'ble Supreme Court in Kavita Aggarwal v. Sarabajit Singh

(2023 KHC 7232), wherein it has been held that in a normal

circumstance, the returns to be reckoned should be the one filed

prior to the date of the death and that even if the return was

filed subsequent to the date of the death of the assessee, in the

facts and circumstances, it could be found that there are no

exaggerated returns filed. Relying on the same, the learned

counsel submits that the Tribunal erred in brushing aside Ext.A14

document dated 18.05.2005 and in choosing to rely solely on

Ext.A13 statement of income tax dated 29.01.2003. Though the

judgment relied on by the learned counsel is not directly

applicable to the facts and circumstances of the case at hand, I

find force in the said submission of the learned counsel that

document evidencing income of the deceased just prior to his

death is relevant and ought not be ignored. The reasoning of the

Tribunal to arrive at the monthly income notionally at Rs.6,000/-

lacks any valid basis in view of Ext.A14 document dated

18.05.2005 which was filed in the very same year on which the

accident had occasioned ie., in 2005. The Tribunal had noted that

no document had been produced to prove that Sri.John Varkey

was a registered PWD contractor. However, the same does not

justify deduction of the notional income from what has been

revealed in Ext.A14 document, reliability of which stands

unassailed. In the facts and circumstances of the case and in the

light of Ext.A14 produced and marked by the appellants, the

notional monthly income arrived at Rs.6,000/- by the Tribunal is

fit to be enhanced and substituted to Rs.10,000/- Consequently,

computing the loss of earnings at the rate of Rs.10,000/- per

month, for a period of 11½ months under the head 'loss of

earnings' an amount of Rs.46,000/- is to be added to

Rs.69,000/- which has been presently awarded by the Tribunal.

The total amount to which the appellants are entitled to under

the head of 'loss of earnings' is thus Rs.1,15,000/-.

21. Regarding Medical Bills: It is contended by the counsel

for the appellants that the medical bills produced as Ext.A11

before the Tribunal adds up to a total of Rs.1,70,189/-. However,

a lesser amount of Rs.1,54,484/- alone has been allowed by the

Tribunal under the said head, submits the counsel. Ext.A11 bills

forms part of the Trial Court Records which had been called for

and received in the registry of this Court. The said bills have

been jointly perused and verified by the counsel for both sides.

No challenge has been raised against the correctness and

reliability of Ext.A11 medical bills. It is submitted that the

Ext.A11 bills adds up to an amount of Rs.1,70,189/-. The

veracity of the same is confirmed by the counsel for the 3 rd

respondent also. Hence the amount of Rs.1,54,484/- granted by

the Tribunal towards medical expenses is substituted with

Rs.1,70,189/- and it is ordered accordingly.

22. Towards loss of amenities: An amount of Rs.25,000/-

has been awarded by the Tribunal under the said head. Counsel

for the appellants submit that the said amount is grossly

inadequate in the facts and circumstances of the case at hand.

The Hon'ble Supreme Court in Benson George v. Reliance

General Insurance Co. Ltd. & another (2022 KHC 6232) has

held that "loss of amenities and happiness suffered by the

claimant and his family members also depend upon various

factors, including the position of the claimant post accident and

whether he is in a position to enjoy life and / or happiness which

he was enjoying prior to the accident. To what extent the

claimant has lost the amenities in life and the happiness will

depend on the facts of each case." Taking note of the facts and

circumstances of the case, the age and nature of injuries

suffered, it is just and reasonable that an amount of Rs.25,000/-

more can be added to the same thus increasing compensation

towards Loss of amenities to Rs.50,000/-.

23. In the light of the above discussion, appellants are

entitled to the following amounts under the respective heads:

       Sl. Head of Claim                            Amount         Amount modified
       No.                                          awarded by the and recalculated
                                                    Tribunal (Rs.) by this Court
                                                                   (Rs.)
       1     Loss of earnings (for 11 1/2 months          69,000/-       1,15,000/-
       2     Pain and sufferings                          50,000/-         50,000/-
       3     Loss of amenities                            25,000/-         50,000/-
       4     Bystander expenses (Not claimed              20,400/-         20,400/-
             separately)
       5     Extra nourishment charge                       5,000/-         5,000/-
       6     Transportation charge                        10,000/-         10,000/-
       7     Medical expenses                            1,54,484/-      1,70,189/-
                                            Total        3,33,884/-      4,20,589/-

24. The Award of the Tribunal is modified to the above

extent entitling the appellant to a total amount to Rs.4,20,589/-

(enhancement made in this M.A.C.A. being Rs.86,705/-) under

the respective heads as tabulated above. Amounts granted under

other heads in the Award remain unaltered. Any amount paid

earlier under the above heads, may be adjusted during payment

to the appellants. Appellants will be entitled to interest @ 7%

per annum on the enhanced amount. However, the appellant will

be disentitled for the interest for the period of 112 days which

was the period of delay in filing the M.A.C.A.No.2249 of 2013

which was condoned by this Court vide Order dated 29.09.2023

in C.M.Appln.No.1 of 2013 in the above M.A.C.A.