Kerala High Court

Abhilash vs New India Assurance Co. Ltd on 11 March, 2025

                                                        2025:KER:22460


             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

         THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

   TUESDAY, THE 11TH DAY OF MARCH 2025/20TH PHALGUNA, 1946

                       MACA NO. 3405 OF 2017

     AGAINST     THE   ORDER/JUDGMENT      DATED   28.04.2016   IN   OPMV

NO.742 OF 2009 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT

- V, THIRUVANANTHAPURAM / II ADDITIONAL MACT.

APPELLANT:

             ABHILASH,
             AGED 29 YEARS,
             S/O SRI. ASHOKAN,ABHILASH BHAVAN,
             EYACOMPANYVILA, BHAGAVATHINADA PO,
             PALICHAL VILLAGE, THIRUVANANTHAPURAM.

             BY ADVS.
             SMT.K.N.RAJANI
             SMT.ANILA PETER
             SRI.S.SUDHEESH
             SRI.SAJEN THAMPAN




RESPONDENTS:

             NEW INDIA ASSURANCE CO. LTD
             REPRESENTED BY ITS DIVISIONAL MANAGER,
             KOTTARATHIL BUILDING, PALAYAM,
             THIRUVANANTHAPURAM - 695 033.


             BY ADVS.
             SMT.M.MEENA JOHN
             SRI.VIJU THOMAS
 M.A.C.A.No.3405 of 2017


                                              2025:KER:22460
                            -2-

      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 11.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 M.A.C.A.No.3405 of 2017


                                                             2025:KER:22460
                                     -3-

                             JUDGMENT

Dated this the 11th day of March, 2025

The petitioner in O.P.(M.V.) No.742/2009 on the file of the

Motor Accident Claims Tribunal, Thiruvananthapuram is the appellant

herein. (For the purpose of convenience, the parties are hereafter

referred to as per their rank before the Tribunal).

2. The petitioner filed the above O.P. under Section 166

of the Motor Vehicles Act, 1988, claiming compensation for the injuries

sustained in a motor vehicle accident that occurred on 22.03.2009.

According to the petitioner, on 22.03.2009 at about 8.30 p.m., while the

petitioner was riding a motorcycle, another motorcycle bearing

Registration No.KRM-6209 ridden by the 3rd respondent in a rash and

negligent manner hit on his motorcycle. As a result of the accident, the

petitioner sustained serious injuries.

3. The 1st respondent is the registered owner, the 3rd

respondent is the driver and 2nd respondent is the insurer of the

offending vehicle. According to the petitioner, the accident occurred

due to the negligence of the driver of the offending vehicle. The

quantum of compensation claimed in the O.P. is Rs.8,50,000/-

4. The insurance company filed a written statement,

admitting the accident as well as policy, but disputing the negligence on

the part of the driver of the offending vehicle.

5. The evidence in the case consists of documentary

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evidence Exts.A1 to A9 and Ext.X1. No evidence was adduced by the

respondents.

6. After evaluating the evidence on record, the Tribunal

found negligence on the part of the driver of the offending vehicle,

awarded a total compensation of Rs.2,65,150/- and directed the insurer

to pay the same.

7. Aggrieved by the quantum of compensation awarded

by the Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is the

following:

Whether the quantum of compensation awarded by

the Tribunal is just and reasonable?

9. Heard Smt.K.N.Rajani, the learned Counsel

appearing for the petitioner/appellant, and Smt.M.Meena John, the

learned Standing Counsel for the 2nd respondent.

10. The Point: In this case the accident as well as valid

insurance policy of the offending vehicle are admitted. One of the

contentions raised by the learned counsel for the petitioner is regarding

the income of the petitioner as fixed by the Tribunal. According to the

petitioner, he was working as AC mechanic, earning Rs.5,000/- per

month and the Tribunal fixed his monthly income at Rs.5,000/-.

11. As per the dictum laid down by the Hon'ble Supreme

Court in the decision in Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the

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notional income of a coolie, in the year 2009 will come to Rs.7,000/-.

Therefore, the learned counsel prayed for fixing the notional income of

the petitioner at a sum above that of a coolie. The learned counsel for

the insurer would argue that the income fixed by the tribunal is

reasonable. Since the notional income of a coolie in the year 2009 will

come to Rs.7,000/- and it is proved that the petitioner was an AC mechanic

by profession, his notional income is fixed at Rs.8000/-, for the purpose of

computing the loss of disability.

12. In the accident the petitioner sustained the following

injuries:

a) Grossly displaced fracture right Zygomatic bone

b) fracture lateral 3rd frontal bone in continuity

c) Frontal haemorrhagic contusion

d) Fracture roof of right orbit

e) Fracture increase in orbital volume right side

f) Cross communution of orbital walls

g) lacerated wound 3 x 4 cm over right frontal region

h) Black eye right fracture lower end of radius

13. As per Exhibit X1 disability certificate the petitioner

suffered 30% permanent physical disability. It was issued by the

medical board. The Tribunal, has accepted the permanent physical

disability of the petitioner as such and hence, I do not find any grounds

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to disbelieve the same. Therefore, the permanent physical disability of

the petitioner is accepted as 30%, as fixed by the Tribunal.

14. On the date of accident, the petitioner was aged 21

years. Therefore, 40% of the monthly income is to be added towards

future prospects, as held in the decision in National Insurance Co.

Ltd v. Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be

applied is 18, as held in Sarla Verma v. Delhi Transport

Corporation, [(2009) 6 SCC 121]. In the above circumstances, the loss

of disability will come to Rs.7,25,760/-.

15. Towards loss of earning, the tribunal has awarded

only Rs.15,000/- being the income for 3 months @Rs.5,000/-.

Considering the nature of the injuries sustained and the percentage of

disability suffered by the petitioner, the petitioner might have lost

income at least for a period of 6 months. Therefore, towards 'loss of

income' the petitioner is entitled to get a sum of Rs.48,000/- (8,000 x 6

months).

16. Towards the head 'pain and sufferings', the Tribunal

has awarded Rs.20,000/-. Towards 'loss of amenities of life' Rs.36,000/-

was awarded, towards 'extra nourishment' Rs.2,000/- was awarded and

towards 'bystander expenses' Rs.1,650/- was awarded. According to the

learned counsel for the petitioner, the compensation awarded on those

heads are on the lower side.

17. The petitioner sustained very serious injuries in the

accident and was treated as inpatient for 11 days. Because of the

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injuries sustained, the percentage of disability suffered and the length

of treatment undergone by the petitioner, I hold that the compensation

awarded by the Tribunal on the heads 'pain and sufferings', 'loss of

amenities of life', 'extra nourishment' and 'bystander expenses' are on

the lower side and hence they are enhanced to Rs.60,000/-, 75,000/-,

5,000/- and 2,200/-respectively.

18. No change is required, in the amounts awarded on

other heads, as the compensation awarded on those heads appears to

be just and reasonable.

19. Therefore, the petitioners/appellants are entitled to

get a total compensation of Rs.9,98,460/-, as modified and recalculated

above and given in the table below, for easy reference:

Sl.

 No       Head of Claim            Amount awarded         Amount
  .                                by Tribunal (in      Awarded in
                                        Rs.)           Appeal (in Rs.)
  1 Loss of earning                    15,000/-            48,000/-
  2 Transport to hospital              2,000/-             2,000/-
  3 Extra nourishment                  2,000/-             5,000/-
  4 Damage to clothing and                 500/-            500/-
    other personal articles
  5 Costs of medicines                 80,000/-            80,000/-
  6 Expenses to bystander              1,650/-             2,200/-
  7 Compensation for pain              20,000/-            60,000/-
    and sufferings
  8 Compensation for                  1,08,000/-          7,25,760/-
    continuing or
    permanent disability if
    any



                                                          2025:KER:22460


  9 Compensation for loss             36,000/-              75,000/-
    of amenities in life
      Total                          2,65,150/-           9,98,460/-
      Enhanced Rs.7,33,310/-