Abhilash v. New India Assurance Co. Ltd

``` 2025:KER:22460 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` TUESDAY, THE 11[TH] 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 **==> picture [58 x 57] intentionally omitted <==** ``` 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 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22460` ``` -3- ``` ## **J U D G M E N T** ## Dated this the 11[th] 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 3[rd] respondent in a rash and negligent manner hit on his motorcycle. As a result of the accident, the petitioner sustained serious injuries. 3. The 1[st] respondent is the registered owner, the 3[rd] respondent is the driver and 2[nd] 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 M.A.C.A.No.3405 of 2017 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22460` ``` -4- ``` 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 2[nd] 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 M.A.C.A.No.3405 of 2017 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22460` ``` -5- ``` 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 M.A.C.A.No.3405 of 2017 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22460` ``` -6- ``` 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 M.A.C.A.No.3405 of 2017 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22460` ``` -7- ``` 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.**<br>**No**<br>**.**|**Head of Claim**|**Amount awarded**<br>**by Tribunal (in**<br>**Rs.)**|**Amount**<br>**Awarded in**<br>**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<br>other personal articles|500/-|500/-| |5|Costs of medicines|80,000/-|80,000/-| |6|Expenses to bystander|1,650/-|2,200/-| |7|Compensation for pain<br>and suferings|20,000/-|60,000/-| |8|Compensation for<br>continuing or<br>permanent disability if<br>any|1,08,000/-|7,25,760/-| M.A.C.A.No.3405 of 2017 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22460` ``` -8- ``` |9|Compensation for loss<br>of amenities in life|36,000/-|75,000/-| |---|---|---|---| ||**Total**|2,65,150/-|**9,98,460/-**| ||Enhanced Rs.7,33,310/-||| 20. In the result, this Appeal is allowed in part, and Respondent No.2 is directed to deposit a total sum of Rs. **9,98,460/-** (Rupees nine lakhs ninety eight thousand four hundred and sixty only), less the amount already deposited, if any, along with interest @ 9% per annum, from the date of the petition till deposit/realisation, excluding interest for a period of 157 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%) On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- **C. PRATHEEP KUMAR, JUDGE** ADS