A.G. Prakul v. The Oriental Insurance Co. Ltd

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939 MACA.No. 283 of 2013 () -----------------------AGAINST THE AWARD IN OPMV 2255/2003 of MACT,ERNAKULAM DATED 20-07-2011 APPELLANT(S):ORIGINAL PETITIONER ----------------------------------------- A.G.PRAKUL, S/O.GOVINDAN AGED 33 YEARS, FISHERIES QUARTERS RAVIPURAM, NOW RESIDING AT ARKAPARAMBIL HOUSE DEVASWAMPADAM, VARAPUZHA P.O KANAYANNOOR TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.K.K.APPU SRI.ISAC SANJAY SRI.T.M.JOSEPH SHYLAN RESPONDENT(S):3RD RESPONDENT ---------------------------------------- THE ORIENTAL INSURANCE CO. LTD IMA BUILDING, 1ST FLOOR BANK JUNCTION ALUVA-693101 BY ADV. SRI.MATHEWS JACOB (SR.) BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.283/2013 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A:TRUE COPY OF THE MEDICAL BILL SL.NO.128 OF EXHIBIT A11. //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** ## **========================== M.A.C.A. No.283 OF 2013** ## **==========================** Dated this the 14[th] day of December, 2017 ## **JUDGMENT** _Ravikumar, J._ The injured-petitioner filed this appeal seeking enhancement of the quantum of compensation granted by the Motor Accidents Claims Tribunal, Ernakulam as per the award passed in O.P.(MV).No.2255 of 2003. The accident which led to the filing of the said claim petition occurred on 26.1.2003. On that day, he was riding his motor cycle bearing Reg.No.KL-7/AC-13. At the place of accident, the said motor cycle was hit by the tanker lorry bearing Reg.No.KBT 4069 driven by the second respondent. Having sustained serious injuries, the petitioner was immediately taken to the Medical Trust hospital, Ernakulam where he remained as inpatient for a period of 140 days. The injuries sustained by him resulted in permanent disability. It is in the said circumstances that he filed the said claim petition under **M.A.C.A.283/2013** 2 section 166 of the Motor Vehicles Act seeking a total compensation of Rs.15 lakhs. As per the impugned award, the Tribunal had granted an amount of Rs.3,19,268/- with interest at the rate of 7.5% per annum from the date of the petition till realisation. The appellant seeks for its enhancement. 2. We have heard the learned counsel for the appellant and also the learned counsel for the respondent insurance company. No oral evidence was adduced by both sides before the Tribunal. On the side of the appellant, Exts.A1 to A11(a) and A15 to A18 were marked. Respondents have not adduced any evidence, as well. It is evaluating the evidence on record and the arguments advanced that the Tribunal had passed the award as aforesaid. The learned counsel for the appellant contended that the Tribunal has failed to properly take into consideration the fact that the appellant was a law student aged 24 years at the time of the accident, while fixing the monthly income for calculation purpose. The Tribunal had fixed the monthly income as Rs.3,000/- disregarding such aspects, it is contended. The appellant also seeks for upward modification of compensation granted under **M.A.C.A.283/2013** 3 various heads. 3. The learned counsel appearing for the respondent contended that the petitioner, being a student at the time of the accident, could not have been treated as an earning person. In such circumstances, the Tribunal cannot be found fault with in fixing the monthly income notionally and that too at Rs.3,000/-, it is submitted. 4. We will firstly consider the question whether the fixation of the monthly income by the Tribunal as Rs.3,000/- invites interference. There is no dispute regarding the fact that the appellant was a law student at the time of the accident. He was then aged 24 years. Taking into account the fact that the appellant was then pursuing a professional course and that the accident in question had occurred on 26.1.2003, we are of the considered view that the fixation of the monthly income notionally as Rs.3,000/- invites interference. We are inclined to re-fix the monthly income as Rs.6,000/- for calculation purpose taking into account such aspects. The Tribunal took the multiplier as '17'. The age of the appellant was 24 years at the time of the accident. In the light of the decision of the Apex Court in **Sarla** **M.A.C.A.283/2013** 4 ## **Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** we are inclined to take the multiplier as '18'. The extent of disability certified in Ext.A15 disability certificate issued by a duly constituted medical board was accepted in toto by the Tribunal. In such circumstances, the compensation for disability has to be re-assessed by substituting the re-fixed multiplicand and multiplier. On such reassessment, the amount payable to the petitioner for permanent disability will be Rs.2,20,320/- (6000x12x18x17/100). After deducting the amount already granted under the said head viz., Rs.1,04,040/-, the appellant is entitled to get an additional compensation of Rs.1,16,280/- thereunder. It is granted. 5. The learned counsel for the appellant further submitted that sums of compensation granted by the Tribunal under other heads also warrant upward modification. It is submitted that only a meagre amount of Rs.15,000/- was granted towards loss of studies. Evidently, the appellant had been an inpatient for a period of 140 days. In such circumstances, indubitably, it can be said that he must have lost his studies for a considerably long period. Taking into **M.A.C.A.283/2013** 5 account the fact that the appellant was a law college student and he lost studies for about five months and the nature of the injuries sustained in the accident, we are inclined to grant an amount of Rs.13,000/- additionally under the head loss of studies. Towards damage to clothing, only an amount of Rs.400/- was granted. The nature of the injuries would undoubtedly go to show that the dresses worn by him must have been spoiled in the accident. We are inclined to grant Rs.600/- more under the said head. Towards extra nourishment and attendant expenses, the Tribunal has granted Rs.1,000/- and Rs.17,500/- respectively. Taking into account the year of the accident and the economic situation prevalent at that point of time, we are of the view that towards extra nourishment and expenses for bystander's service, amounts ought to have been granted at the rate of Rs.100/- per day and Rs.150/-, per day. In that view of the matter, the appellant is entitled to get an amount of Rs.13,000/- additionally towards extra nourishment and Rs.3,500/- towards bystanders expenses. Towards pain and suffering, the Tribunal had granted an amount of Rs.25,000/-. Ext.A4 is the wound certificate which would **M.A.C.A.283/2013** 6 reveal that he sustained open comminuted fracture tibia and fibula M/3-D/3 junction with skin loss (R) leg and fracture (R) medial malleolus. Paragraph 9 of the impugned award would reveal the nature of the treatment underwent by the appellant. Taking into account such circumstances, it is evident that the appellant must have endured excruciating pain for a considerably long time and hence, we are inclined to grant Rs.10,000/- additionally under the said head. The nature of the injuries and their impact and the period of decumbiture would reveal that the appellant-petitioner was deprived of enjoyment of life for quite a long period. Hence, we are inclined to grant a sum of Rs.12,000/- more towards loss of amenities. Paragraph 10 of the impugned award would reveal that taking into account the disfiguration as revealed from Ext.A18 series of photographs, the Tribunal had awarded Rs.15,000/- as compensation for disfiguration. However, a glance at the schedule of compensation would reveal that this was not taken into account while calculating total compensation payable. It is to be reckoned and granted. Taking into account the extent of disability and the fact that the injuries resulted in **M.A.C.A.283/2013** 7 disfiguration as well, we do not find any reason for disinclination shown by the Tribunal for granting compensation for marriage prospects. The appellant was aged only 24 years. In such circumstances, we are inclined to grant an amount of Rs.20,000/towards compensation for loss of marriage prospects. In such circumstances, this appeal is allowed. The appellant is entitled to get an additional compensation of Rs.2,03,380/- which is rounded off to Rs.2,03,400/-. The said amount will carry interest at the rate of 8% per annum from the date of the petition till realisation. The respondent insurance company shall deposit the said amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. No order as to costs. ## **Sd/-** **(JUDGE)** **Sd/MARY JOSEPH (JUDGE)** ## **spc/** **M.A.C.A.283/2013** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.283/2013** 9 **JUDGMENT September, 2010**