Ajay Kumar V.V v. KURIAKOSE K.J., Hamza K.V., United India Insurance Company Limited

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 ``` ## `MACA NO. 3876 OF 2022` ``` [AGAINST THE AWARD DATED 18.05.2022 IN OP(MV)NO.574/2019 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM] ``` ## `APPELLANT/PETITIONER:` ``` AJAY KUMAR V.V, AGED 25 YEARS, S/O. SETHUMADHAVAN, PADMALAYAM HOUSE, PO KULAPPULLY, SHORANUR, PALAKKAD – 679 122. ``` ``` BY ADV SHEJI P.ABRAHAM ``` ## `RESPONDENTS/RESPONDENTS:` |`1`|`KURIAKOSE K.J., S/O. KURIAN JOSEPH,`| |---|---| ||`KEEZHEDATH HOUSE, KANIPPAYOOR P.O.,`| ||`KUNNAMKULAM, THRISSUR – 680689,`| ||`DRIVER OF KL 46 K 7929 CAR).`| |`2`|`HAMZA K.V., S/O. AYAMU, KUNNATHUVALAPPIL HOUSE,`| ||`KURANJIYUR, THRISSUR – 680 506`| ||`(OWNER OF KL 46 K 7929 CAR).`| |`3`|`UNITED INDIA INSURANCE COMPANY LIMITED,`| ||`ORISON COMPLEX, WADAKKANCHERY, THRISSUR – 680503,`| ||`(INSURER OF KL 46 K 7929 CAR)`| ||`POLICY NO. 1018013118P110751442`| ||`VALID FROM: 23/11/2018 TO 22/11/2019`| ||`REP. BY ITS BRANCH MANAGER.`| ``` BY ADV P.K.MANOJ KUMAR, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3876 OF 2022 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellant was involved in a road accident on 23.02.2019 - when the motor cycle he was riding, was hit by the offending vehicle, driven in a rash and negligent manner. He sustained grievous injuries and was hospitalised ``` ``` as an in-patient for about 10 days; whereupon, ``` ``` he filed OP(MV)No.574/2019 before the Motor AccidentsClaimsTribunal,Ottappalam (hereinafter referred to as ‘the Tribunal’ for ``` ``` short), seeking compensation of an amount of Rs.19,10,000/-, limited to Rs.10,00,000/-; but ``` ``` which has been allowed only to an extent of ``` ``` Rs.7,21,762/-. He assails this amount as being inadequate. ``` ``` 2.Sri.Sheji P. Abraham – learned counsel for the appellant, pointed out that the primary reason why the compensation has been fixed low ``` ``` MACA NO. 3876 OF 2022 ``` ``` -3- ``` ``` by the learned Tribunal is because, it has adopted the notional income of his client to be only Rs.10,000/- per month, even though he had proved, through Ext.A7-Salary Certificate, that he was earning Rs.25,000/, as a System Manager. ``` ``` He added that, in fact, his client was also pursuing Chartered Accountancy Course at that time, which he is still continuing; and therefore, that the income claimed by his client ought to have been reckoned by the Tribunal. He then read through the medical evidence to impress upon me the gravity of injuries sustained by his client and argued that, even though Ext.A1-Disability Certificate has been issued by PW1-Doctor, certifying his disability to be 22.5%, the fact remains that his actual disability is much more. He argued that, therefore, the Tribunal ought not to have reduced that percentile to ‘20’, as has been ``` ``` MACA NO. 3876 OF 2022 ``` ``` -4- ``` ``` done now. He concluded his submissions saying that the compensation awarded by the Tribunal under the heads ‘Extra Nourishment’ ‘Bystander’s Expenses’, ‘Pain and Suffering’ and ‘Loss of Amenities’ require to be enhanced substantially, adverting to the fact that the accident happened in the year 2019 and that his client suffered 10 days of hospitalisation. – 3.In response,Sri.P.K.Manoj Kumar learned Standing Counsel for the respondent – InsuranceCompany,submittedthatthe computations adopted by the Tribunal, in arriving at the compensation in favour of the appellant, is without error; and thus prayed that this Appeal be dismissed, particularly because there is absolutely no evidence to establish the avocation and actual income received by the appellant. ``` ``` MACA NO. 3876 OF 2022 ``` ``` -5- ``` ``` 4.I have considered the afore rival ``` ``` contentions 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. ``` ``` 5.I will first deal with the adequacy of the notional income adopted by the learned Tribunal in favour of the appellant. 6.The appellant tried to prove his income to be Rs.25,000/- on the basis of Ext.A7-Salary Certificate, which has been issued by a Private Company. Though the Tribunal was without error ``` ``` in having rejected it – at least with respect to the quantum of salary shown therein, because it has not been spoken to about any person or proved in a manner acceptable in law – the fact remains that the appellant cannot certainly be seen to be a mere ‘Coolie’, but a person with ``` ``` MACA NO. 3876 OF 2022 ``` **==> picture [22 x 9] intentionally omitted <==** ``` some technical expertise, since it certifies that he was working as a ‘System Manager’. The further assertion that he was pursuing ‘Chartered Accountant Course’ has not been ``` ``` proved, but again, this can be used to arrive at a safe assumption that he is not a person merely engaged as a daily labourer. ``` ``` 7.I say this because, in Ramchandrappa v. ``` ``` Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Honourable ``` ``` Supreme Court has postulated that, even in the case of a person whose income is otherwise unascertainable, or who is working as a ‘Coolie’, in the year 2019 – when the accident ``` ``` occurred – the minimum figure to be reckoned is ``` ``` Rs.10,000/-. Further, inRajani v. Oriental ``` ``` Insurance Company Ltd.[2022 (5) KLT Online ``` ``` 1012], theHonourable Court has held that, in ``` ``` the case of a person who is engaged in technical ``` ``` MACA NO. 3876 OF 2022 ``` **==> picture [22 x 8] intentionally omitted <==** ``` avocation, a more robust view has to be taken. ``` ``` Being guided by these two precedents, I propose that thenotional income of the appellant can ``` ``` safely be taken as Rs.14,000/- per month. ``` ``` 8.Coming to the medical evidence on ``` ``` record, it is without doubt that Ext.A3 – Wound ``` ``` Certificate and Ext.A6 – Discharge Summary ``` ``` establish that the appellant suffered the ``` ``` following injuries: ``` ``` “Closed basicervical fracture neck of femur right & type 2 compound fracture middle third distal third junction right femur closed undisplaced fracture right 5[th]metacarpal base.” (sic) ``` ``` 9.The afore injuries are not trivial at ``` ``` all; and it is also in evidence that he had to ``` ``` be subjected to several surgical procedures to correct them. It is taking note of all these that, PW1 doctor, has certified his "Permanent ``` ``` Disability" in Ext.A1 to be 22.5%; however, since he was an individual doctor and not ``` ``` MACA NO. 3876 OF 2022 ``` ``` -8- ``` ``` supported by a Medical Board, the learned ``` ``` Tribunal has correctly reduced it to be 20%, ``` ``` which I cannot find fault with. ``` ``` 10.However, taking note of the fact that ``` ``` the injuries are sufficiently grave and that it would have certainly take some time for the same ``` ``` to be healed, I propose the period, to compute ``` ``` "Loss of Earnings", to be 3 months; while the ``` ``` compensation for "Pain and Suffering" and "Loss ``` ``` of Amenities" to be enhanced to Rs.50,000/- and ``` ``` Rs.40,000/- respectively. This, I am certain, is ``` ``` the least that can be offered to the appellant because, he would have certainly gone through great amount of trauma and pain, at least during ``` ``` the time when he was undergoing treatment. ``` ``` 11.Finally, as regards thecompensation ``` ``` awarded under the heads “Extra Nourishment” and ``` **==> picture [412 x 13] intentionally omitted <==** ``` appellant was hospitalized for 10 days and that ``` ``` MACA NO. 3876 OF 2022 ``` **==> picture [22 x 9] intentionally omitted <==** ``` the learned Tribunal has reckoned Rs.200/- and ``` ``` Rs.400/- respectively, as his per-day expenses. ``` ``` I am certain that in the year 2019 - when the ``` ``` accident occurred – the actual expenses would ``` ``` have been much higher, and I propose to revise them to be Rs.400/- and Rs.500/- per day ``` ``` respectively. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` - `(a) The compensation under the head “Loss of` ``` Earning” is enhanced to Rs.42,000/-(Rupees forty two thousand only), from Rs.20,000/-, reckoning the notional income of the appellant ``` ``` to be Rs.14,000/- per month and a period of three months is taken for such purpose. ``` ``` (b)The compensation under the head “Extra ``` ``` Nourishment” is enhanced to Rs.4,000/-(Rupees ``` ``` four thousand only), from Rs.2,000/-, reckoning ``` ``` MACA NO. 3876 OF 2022 ``` **==> picture [30 x 9] intentionally omitted <==** ``` Rs.400/- per day as the expenses for 10 days ``` ``` hospitalization. ``` ``` (c)Thecompensationunder the head ``` - `“Bystander Expenses” is enhanced to Rs.5,000/-` ``` (Rupees five thousand only), from Rs.4,000/-, ``` ``` reckoning the per diem expenses for the same to be Rs.500/- for 10 days hospitalization. ``` - `(d) The compensation under the head “Pain` ``` and Suffering” is enhanced to Rs.50,000/- ``` ``` (Rupees fifty thousand only), from Rs.30,000/- ``` ``` granted by the Tribunal. ``` - `(e) The compensation under the head “Loss` ``` of Enjoyment and Amenities of Life” is enhanced ``` ``` to Rs.40,000/-(Rupees forty thousand only), ``` ``` from Rs.25,000/- granted by the Tribunal. ``` **==> picture [377 x 13] intentionally omitted <==** ``` “Continuous or Permanent Disability” is enhanced to Rs.6,04,800/- (Rupees six lakhs four thousand eight hundred only), from Rs.4,32,000/-, ``` ``` MACA NO. 3876 OF 2022 ``` **==> picture [30 x 8] intentionally omitted <==** ``` reckoning the notional income of the appellant to be Rs.14,000/- per month and the percentile of disability retained at ‘20’, as correctly ``` ``` accepted by the learned Tribunal. ``` ``` (g)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 7.5% (modifying the ``` ``` rate of interest of 8% 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. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the Tribunal, within a period of ``` ``` MACA NO. 3876 OF 2022 ``` **==> picture [30 x 9] intentionally omitted <==** ``` two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN JUDGE ``` ``` akv ```