Abhilash K Babu v. Sunil Kumar and The New India Assurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 ``` ## **`MACA NO. 2156 OF 2014`** ``` AGAINST THE AWARD DATED 30.04.2014 IN OP(MV) NO.1300/2011 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM ``` ## **`APPELLANT:`** ``` ABHILASH K BABU, KAREETHRA HOUSE, THIRUVARPPY P.O., KOTTAYAM ``` ``` BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP ``` ## **`RESPONDENTS:`** ``` 1SUNIL KUMAR, SURESH BHAVAN, THIRUVARPPU P.O., KOTTAYAM-685001. 2THE NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE, COLLECTORATE P.O., KOTTAYAM-685001. ``` ``` SRI.LAL K JOSEPH-SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2156/14 2 ## **`JUDGMENT`** The appellant was involved in a road accident on 18.09.2011 and sustained injuries, when the motor cycle he was riding was hit by the offending vehicle, driven in a rash and negligent manner. He says that he had to endure long period of treatment, constraining him to file OP(MV) No.1300/2011 before the Motor Accidents Claims Tribunal, Kottayam (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of an amount of Rs.3,00,000/-; but which has been awarded only to a sum of Rs.1,47,953/-. He impugns this Award as being inadequate and hence this Appeal. 2. Sri.Abhiram – learned counsel for the appellant, pointed out that the primary reason why the compensation has been fixed low by the learned Tribunal is because it has adopted the notional income of his client to be a mere amount of Rs.40,000/- per annum, while he had claimed Rs.12,000/- per month, which is established through Exts.A6 and A7 documents. He argued that, had this figure been adopted, the compensation under the head MACA 2156/14 3 ‘Disability’ would have been much higher; further adding that the compensation under the heads ‘Loss of Earnings’, ‘Extra Nourishment’, ‘Bystander’s Expenses’, ‘Pain and Suffering’ and ‘Loss of Amenities’ is so exiguous, that it obtains no nexus to the nature of injuries or its aftermath caused in his client’s life. He thus prayed that this Appeal be allowed, enhancing the compensation substantially. 3. – In response, Sri.Lal K.Joseph learned Standing Counsel for the Insurance Company, submitted that the Tribunal has committed no error in computing the compensation; and thus prayed that this Appeal be dismissed. 4. I have considered the afore rival contentions on the touchstone of the evidence on record, which I have analyzed very carefully. 5. I must say that the submissions of Sri.Abhiram – learned counsel for the appellant, on the question of the notional income adopted by the Tribunal in favour of the appellant, is on v. firm footing because, in Ramchandrappa Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], MACA 2156/14 4 the Honourable Supreme Court has declared that, even in the case of a person whose income is otherwise unascertainable, or who is working as a ‘Coolie’, in the year 2011 – when the accident occurred – the minimum figure to be adopted is Rs.8,000/- per month. The appellant claimed only Rs.12,000/-, asserting that he is a marble worker, trying to establish it through Exts.A6 and A7 – issued by a PWD Contractor and his Contract Registration Card respectively. 6. In fact, the author of Ext.A6 was examined as PW1, but the learned Tribunal found that these documents could not be relied upon for the purpose of fixing the income of the appellant. Though the Tribunal has committed no mistake in holding so, the factum of the appellant not being merely a ‘Coolie’, but a worker who is engaged in a technical avocation, cannot be brushed aside. In Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT Online 1012], the Honourable Supreme Court has postulated that a more robust view has to be taken in the case of a person who is not merely a ‘Coolie’, but engaged in technical avocation; and am, therefore, of the opinion that an amount of Rs.9,000/- can be fixed MACA 2156/14 5 as notional income in favour of the appellant, which is only Rs.1,000/- more than what has been authorised by Ramachandrappa (supra) for a ‘Coolie’. 7. That said, the medical evidence on record, particularly Ext.A3-Wound Certificate, establishes that the appellant suffered Type II fracture of his left leg. He was admitted on 18.09.2011 and was discharged only on 28.09.2011 and this is evident from Ext.A4-Discharge Certificate. In Ext.A5-OP Tickets, it is reiterated that he had fracture of both bones of his left leg and that he had to be treated with ‘open tibial interlocking nail fixation’. Unfortunately, there was a problem in the nail fixation and Ext.A5 would further show that he had to be subjected to a major surgery on 19.02.2012, through which, the nail fixation earlier done was removed under local anaesthesia. Obviously, the appellant would have gone through great stress during the period when he was under treatment and the pain and agony endured by him cannot be understated. I am, therefore, of the firm view that the compensation awarded by the Tribunal under the head ‘Pain and Suffering’ and ‘Loss of Amenities’ must be restored at least to the MACA 2156/14 6 figure he had claimed, namely Rs.40,000/- and Rs.21,000/respectively. 8. As far as the compensation under the heads ‘Extra Nourishment’ and ‘Bystander’s Expenses’ is concerned, the learned Tribunal has awarded only Rs.1,000/- and Rs.3,000/- respectively, which is at the rate of Rs.100/- and Rs.300/- per day, for 10 days of hospitalisation. Going by the fixed standards of the year 2012, I do not think that this is too low and, therefore, do not propose to modify it in any manner. 9. Finally, since the medical evidence on record clearly show that the appellant had to undergo prolonged hospitalisation and treatment, I am of the view that, while computing the compensation under the head ‘Loss of Earnings’, a minimum of five months must be reckoned. In the afore circumstances, this Appeal is partly allowed, with the following directions: a) The compensation awarded by the Tribunal under the head ‘Permanent Disability’ is revised to Rs.3,21,117/-, from Rs.79,288/-; reckoning the notional income of the appellant to be MACA 2156/14 7 Rs.9,000/- per month, adopting the multiplier of 17 – since he was 23 years in age at the time of accident and reckoning his permanent disability to be 17.49%, as rightly found by the Tribunal, based on Ext.X1-Medical Board Certificate. b) The compensation under the head ‘Pain and Suffering’ is enhanced to Rs.40,000/-, from Rs.20,000/- as awarded by the Tribunal. c) The compensation under the head ‘Loss of Amenities’ is enhanced to Rs.21,000/-, from Rs.15,000/- as awarded by the Tribunal. d) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, the appellant will be at liberty to recover the full compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% as awarded by the Tribunal, 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. In view of the afore, the amount as fixed above shall be MACA 2156/14 8 deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` RR ```