## IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939
MACA.No. 95 of 2010 ( )
------------------------
AGAINST THE AWARD IN OPMV 126/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA DATED 31-10-2008
APPELLANT/PETITIONER:
------------------------------------
ABDULLA CHANGARAPPAN, S/O.MOIDU, AGED 26, CHANGARAPPAN HOUSE, THARUVANA POST, KUNNUMMAL ANGADI, MANANTHAVADY TALUK.
BY ADV. SMT.M.R.JAYALATHA
## RESPONDENT/RESPONDENTS NO.3:
----------------------------------------------------
THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD, M.G.T.BUILDINGS, KALPETTA.
BY ADV. SRI.M.M.IRSHAD MOOPPAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.95 OF 2010**
**-------------------------------------------------DATED THIS THE 13[th] DAY OF JUNE, 2017**
## **JUDGMENT**
## **ANIL K. NARENDRAN, J.**
This appeal arises out of the award passed by the Motor Accident Claims Tribunal, Kalpetta dated 31.10.2008 in O.P.(MV) No.126/2003, which was an application filed by the appellant herein under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by him in a motor accident which occurred on 29.1.2003 while he was travelling as a pillion rider in a motor cycle. When the motor cycle reached the place of occurrence, a lorry bearing registration No. KL-12/B-0727 driven and owned by respondents 1 and 2 and insured with the 3[rd] respondent came in a rash and negligent manner and hit the motor cycle, whereby the appellant sustained serious injuries. Claiming a total compensation of 1,50,000/-₹ under different heads, claim petition was filed before the Tribunal.
2. Before the Tribunal, the appellant was examined as PW1 and Exts.A1 to A17 were marked. On the side of the respondents, Ext.B1 charge sheet was marked. Ext.X1 is the case records from
M.A.C.A.No.95/2010
-2-
the Medical College Hospital, Calicut.
3. After considering the evidence and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the lorry by the
1[st] respondent driver. Since the vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer (the sole respondent in this appeal) was held liable to indemnify the 2[nd] respondent owner.
4. Under different heads, the Tribunal awarded total compensation of ₹71,610/- and directed the 3rd respondent insurer to deposit the said amount together with interest at the rate of 6% per annum from the date of filing of the claim petition. The appellant was also awarded proportionate costs.
5. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant is before this Court in this appeal.
6. We heard arguments of the learned counsel for the appellant/claimant as well as the learned counsel for the respondent/insurer (3[rd] respondent before the Tribunal).
M.A.C.A.No.95/2010
-3-
7. The sole issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under different heads warrants interference.
8. The compensation awarded by the Tribunal under
## different heads reads as follows:
|Sl.<br>No.|Head of claim|Claimed|Awarded|
|---|---|---|---|
|1|Loss of earning|42000|5000|
|2|Transport to hospital|5000|1000|
|3|Damage to clothing and article|500|250|
|4|Medical expenses|50000|13000|
|5|Bystander's expenses|5000|1000|
|6|Extra nourishment|2000|1000|
|7|Pain and suffering|50000|5000|
|8|Disability|50000|45360|
|9|Inconvenience caused and loss of<br>amenities|25000|nil|
|10|Loss of earning power|50000|nil|
||Total (claim limited to 1,50,000/-)<br>₹|279500|71610|
9. As we have already noticed, the accident occurred on
29.1.2003, while the appellant was travelling as a pillion rider in
a motor cycle. The injuries sustained by the appellant in the
accident and the treatment he had undergone are borne out from the documents on record. In Ext.A16 disability certificate, the
M.A.C.A.No.95/2010
-4-
percentage of permanent disability is certified as 26%. However, the appellant has not chosen to prove the disability certificate by examining the Doctor who had issued the same. It was in such circumstances that, the Tribunal reckoned the percentage of disability as 10% taking note of the injuries sustained by the appellant and also the nature of disability noted in Ext.A16 disability certificate. The fixation of disability so made by the Tribunal warrants no interference in this appeal.
10. At the time of accident, the appellant was aged 26 years and he claimed a monthly income of 3,000/- as a coolie.₹ However, the Tribunal in the absence of any evidence notionally reckoned the same as 2,100/-. Considering the fact that the₹ accident occurred in the year 2003 and at the time of accident the appellant was an able bodied person aged 26 years, we do not find any grounds to disbelieve the version of the appellant, who was examined as PW1, that he was earning a monthly income of 3,000/- as on the date of accident. Therefore, for the₹ purpose of assessing disability compensation, the monthly income of the appellant can be reckoned at 3,000/-. ₹
M.A.C.A.No.95/2010
-5-
11. Taking the notional monthly income as 2,100/- and₹ multiplier as '18' and percentage of disability as 10%, the Tribunal awarded 45,360/- as disability compensation. Going by₹ the judgment of the Apex Court in **Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802)** , the proper multiplier applicable to the age group of the appellant is '17'. Therefore, taking the notional monthly income as 3,000/-,₹ multiplier as '17' and percentage of disability as '10, the compensation for disability payable to the appellant comes to ₹61,200/- (i.e., 3000x12x17x10/100). The Tribunal awarded a sum of 45,360/- under this head. In the result, the appellant₹ will be entitled for an additional compensation of **₹15,840/-** under this head.
12. Towards loss of earning, the Tribunal awarded a consolidated amount of 5,000/-. Considering the nature of₹ injuries sustained and the treatment the appellant had undergone, we deem it appropriate to fix loss of earning for a period of three months. Since we have already refixed the notional monthly income of the appellant at ₹3,000/-, the
M.A.C.A.No.95/2010
-6-
compensation payable under this head comes to ₹9,000/(3000x3), resulting an additional compensation of **₹4,000/-** .
13. Towards transportation to hospital, the Tribunal awarded a sum of 1,000/-. Considering the nature of injuries₹ sustained and the treatment the appellant had undergone, we deem it appropriate to refix the compensation under this head as ₹2,000/- resulting an additional compensation of **₹1,000/-** .
14. Towards damage to clothing the Tribunal awarded a sum of 250/-. Considering the fact that accident is of the year₹ 2003, we deem it appropriate to refix the compensation under this head as 500/-, resulting an additional compensation of₹ ₹ **250/-** .
15. Towards bystander expenses, the Tribunal awarded a sum of 1,000/-. Considering the nature of injuries sustained₹ and the treatment the appellant had undergone, we deem it appropriate to refix the compensation under this head as ₹2,000/-, resulting an additional compensation of **₹1,000/-** .
16. Towards pain and suffering, the Tribunal awarded only a sum of 5,000/-. Considering the nature of injuries sustained₹
M.A.C.A.No.95/2010
-7-
and the disability that had arisen therefrom, we deem it appropriate to refix the compensation under this head as ₹15,000/-, resulting an additional compensation of **₹10,000/-** .
17. Towards loss of amenities, no amount was awarded by the Tribunal. Considering the fact that due to the injuries sustained in the accident, the appellant has already suffered permanent disability, which has been reckoned as 10% by the Tribunal, we deem it appropriate to grant a sum of **₹15,000/-** under this head.
18. In the result, the appellant will be entitled for an additional compensation of **₹47,090/- (Rupees Forty Seven Thousand and Ninety only)** in this appeal together with interest at the rate of 8% per annum.
19. This appeal was filed with a delay of 329 days, which was condoned as per order in C.M. Application No.102/2010 dated 28.5.2016 subject to the condition that, in the event of the appellant being awarded enhanced compensation, such enhanced compensation will not carry interest during the said period of 329 days. The above order is made absolute.
M.A.C.A.No.95/2010
-8-
20. In view of the above, the appellant will be entitled to get interest at the rate of 8% per annum for the additional compensation awarded in this appeal from the date of filing of the claim petition till deposit, excluding the aforesaid delay of 329 days in filing this appeal.
21. Since the insurance coverage of the vehicle is not in dispute, the respondent/insurer (3[rd] respondent before the Tribunal) shall deposit the due amount before the Tribunal within a period of one month from the date of receipt of a certified copy of this judgment.
The appeal is disposed as above. No order as to costs.
Sd/- **C.T. RAVIKUMAR, JUDGE**
Sd/- **ANIL K. NARENDRAN, JUDGE**
dsn
True copy
P.S. to Judge
