A. Thamban v. Cholamandalam MS General Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 ``` ## `MACA NO. 2243 OF 2019` ``` [AGAINST THE AWARD DATED 05.05.2018 IN OP(MV)NO.553/2014 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY] ``` ## `APPELLANT/PETITIONER:` ``` A.THAMBAN, AGED 45 YEARS, S/O.AMBADI, MATHODAM, KANNADIPARAMBA AMSOM, P.O.KANNADIPARAMBA, KANNUR DISTRICT. ``` ``` BY ADV M.V.AMARESAN ``` ## `RESPONDENT/RESPONDENT NO.3:` ``` CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD., AICEL ESTATE, 2ND FLOOR, IYEETTIL JUNCTION, NEAR SOUTH RAILWAY STATION, CHITTOOR ROAD, COCHIN, ERNAKULAM DISTRICT, PIN-682 018. ``` ``` BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2243 OF 2019 ``` ``` -2- ``` ## `JUDGMENT` ``` This matter is of the year 2019 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore, admit this Appeal and proceed to dispose it of finally, with the consent of both sides. ``` ``` 2.The appellant was injured in a road accident on 23.04.2014, when the bus in which he ``` ``` was travelling turned turtle, on account of the rash and negligent driving of its driver. He sustained serious injuries and thereupon filed OP(MV)No.553/2014 before the Motor Accidents Claims Tribunal, Thalassery (‘Tribunal’, for short), seeking compensation of an amount of Rs.3,00,000/-; but which has been allowed only to a sum of Rs.69,493/-. He assails the ``` ``` MACA NO. 2243 OF 2019 ``` ``` -3- ``` ``` compensation as being inadequate. ``` ``` 3.Sri.P.G.Mohanan – learned counsel for the appellant, argued that the compensation awarded by the Tribunal is low primarily because, it has adopted the notional income of his client to be a mere Rs.6,000/-, when he had claimed Rs.18,000/- per month, asserting that he was working as a daily wage labourer. He argued that, going by the medical evidence on record and the period of treatment suffered by his client, the compensation granted by the Tribunal ``` ``` under the head “Pain and Suffering” is low; while, denial of the same under the head “Loss of Amenities” is illegal. He thus prayed that this Appeal be allowed. ``` ``` 4.Sri.Mathews Jacob – learned Senior ``` ``` Counsel, instructed by Smt.Preethy R.Nair - appearing for the Insurance Company, on the other hand, submitted that the injuries suffered ``` ``` MACA NO. 2243 OF 2019 ``` ``` -4- ``` ``` by the appellant were not very serious, which is manifest from the fact that he required hospitalization only for three days and ``` ``` therefore, that the compensation awarded by the Tribunal under various heads is without error. He thus prayed that this Appeal be dismissed. ``` ``` 5.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 6.On the question of notional income, I find favour with the appellant because, the ``` ``` learned Tribunal has, without any specific reason, adopted his income to be Rs.6,000/- per month. However, inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. ``` ``` [(2011) 13 SCC 236], the Hon’ble Supreme Court ``` ``` MACA NO. 2243 OF 2019 ``` ``` -5- ``` ``` has standardized the income even in the case of a person who is a ‘Coolie’, or a person with an unascertainable income, in the year 2014 – when the accident occurred – to be Rs.9,500/-. I fail to understand why the Tribunal did not accept this figure; even though it is right in saying that the appellant has not been able to establish his claim for Rs.18,000/- per month as his earnings. 7.The medical evidence on record, ``` ``` particularly Ext.A2 – Wound Certificate, would show that the appellant has suffered fracture of left shoulder, with lacerated wound on the elbow. He had to be treated as an inpatient for three days and then to continue the treatment until the fracture had united. Though the Insurance Company may be right in saying that the injuries are not extremely grievous, it cannot be treated as trivial either. Therefore, ``` ``` MACA NO. 2243 OF 2019 ``` ``` -6- ``` ``` taking a balance between the rival positions, I ``` ``` am of the view that the compensation for “Pain and Suffering” requires to be enhanced to at least double of what has been awarded by the ``` ``` Tribunal. As regards “Loss of Amenities”, since there is nothing to show that the appellant had ``` ``` suffered any permanent disability, I am of the ``` ``` view that a nominal figure alone needed to have ``` ``` been awarded, which I propose to be Rs.10,000/-. ``` ``` In the afore circumstances, I allow this ``` ``` Appeal in part in the following manner: ``` ``` (a)The compensation under the head “Loss of ``` ``` Earnings” is enhanced to Rs.28,500/- (Rupees ``` ``` twenty eight thousand five hundred only), from ``` ``` Rs.18,000/-, reckoning the notional income of the appellant to be Rs.9,500/-, for a three months period, as has been correctly taken by the learned Tribunal. ``` ``` (b)The compensation under the head “Pain ``` ``` MACA NO. 2243 OF 2019 ``` ``` -7- ``` ``` and Suffering” is enhanced to Rs.50,000/- ``` ``` (Rupees fifty thousand only), from Rs.25,000/- granted by the Tribunal. ``` ``` (c)An amount of Rs.10,000/- (Rupees ten ``` ``` thousand only) is additionally awarded under the head “Permanent Disability”. ``` - `(d) In all other heads, the compensation` ``` granted by the Tribunal will remain intact. ``` ``` Consequently, the appellant will be at full ``` ``` liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8.5% (modifying the rate of interest of 9% granted by the Tribunal, in view of the escalation granted by this ``` ``` Court), from the date of claim until it is recovered.He will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` Needless to say, while calculating the ``` ``` MACA NO. 2243 OF 2019 ``` **==> picture [22 x 9] intentionally omitted <==** `interest on the amount enhanced by this Court` , `a` ``` period of 218 days - being the delay in filing ``` ``` this Appeal – shall stand excluded. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```