Aji @ Ajeesh v. K.V. Hashim and Sureshan V.P. and United India Insurance Co. Ltd. (MACA No. 2438 of 2014)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 ``` ## **`MACA NO. 2438 OF 2014`** ``` AGAINST THE AWARD DATED 31.12.2012 IN OP(MV) 407/2009 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, VATAKARA`** ## **`APPELLANT/PETITIONER:`** ``` AJI @ AJEESH AGED 30 YEARS S/O.NARAYANAN, “ARUNNIVAS”, KOMATHARA, KOYILANDY. ``` ``` BY ADV SRI.ZUBAIR PULIKKOOL ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.V. HASHIM S/O.ABDURAHIMAN, KARAKKATTUVALAPPIL, KOYILANDY P.O., 673 305. ``` ``` 2SURESHAN V.P. S/O.ARUMA AGED 30 YEARS VADAKKEPARAMBIL (H), KAKKANCHERY P.O., KOYILANDY. ``` ``` 3MS.UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, KALLAI ROAD, CALICUT – PIN 673001 ``` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.COUNSEL) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2438 OF 2014 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.407/2009 of the files of the Motor Accident Claims Tribunal, Vatakara. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained by him in a motor accident that occurred on 28.11.2008. 2. The accident occurred when the motorcycle bearing Registration No.KL-18 C 53 hit the appellant. The 1[st] respondent herein was the owner, the 2[nd] respondent was the driver, and the 3[rd] respondent was the insurer of the said motorcycle. According to him, he was aged 30 years and was a bakery worker with a monthly income of Rs.6,000/-. As compensation, he claimed an amount of Rs.5,00,000/-, as, according to him, he sustained serious injuries, which resulted in partial physical disablement. 3. The 3[rd] respondent Insurance Company alone contested the matter wherein they admitted the coverage of the policy. However, they denied the liability on various ``` MACA NO. 2438 OF 2014 ``` ``` 3 ``` grounds. They disputed the quantum of compensation also. 4. The evidence in this case consists of Ext.A1 to A9 from the side of the appellant, and no evidence was adduced by the respondents. 5. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the rider of the motorcycle and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum compensation was fixed as Rs.2,32,366/- and the 3[rd] respondent was directed to deposit the said amount along with interest @ 7.5% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 6. Heard Sri. Zubair Pulikkool, learned counsel appearing for the appellant and Sri.Mathews Jacob, learned senior counsel appearing for the 3[rd] respondent Insurance Company. 7. The learned counsel for the appellant mainly ``` MACA NO. 2438 OF 2014 ``` ``` 4 ``` contends that, while assessing the quantum of compensation, the Tribunal did not consider the percentage of disability certified in Ext.A9 disability certificate issued by the Taluk Head Quarters Hospital, Vatakara. It was pointed out that the physical disability certified therein was 71%, but the Tribunal had taken only 34%. Besides the same, it was also pointed out that, the monthly income taken by the Tribunal was only Rs.3,500/- which was on lower side. 8. On the other hand, the learned counsel for the 3[rd] respondent would oppose the aforesaid contention by pointing out that, the disability certified in Ext.A9 was not the whole body disability and it was with reference to the particular limb. Therefore, it was contended that the percentage of disability taken by the Tribunal was correct and reasonable. With regard to the compensation granted under other heads also, it was pointed out by the learned senior counsel that the amount awarded was reasonable and no interference is warranted. ``` MACA NO. 2438 OF 2014 ``` ``` 5 ``` 9. After considering the materials placed on record, I find some force in the contention put forward by the learned senior counsel for the 3[rd] respondent as far as the question of percentage of disability is concerned. On perusal of the Ext.A9 disability certificate, it appears that the certification was with reference to the particular limb. Moreover, going by the nature of the injuries sustained by the victim, the disability @ 71% for the whole body appears to be on the higher side, as rightly observed by the Tribunal. Therefore, I am of the view that the percentage of physical disability taken by the Tribunal is reasonable, and no interference is warranted. 10. However, with regard to the monthly income, the contention of the learned counsel for the appellant is to be accepted. The monthly income claimed by the appellant was Rs.6,000/-. When considering the said issue in the light of the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v.** ``` MACA NO. 2438 OF 2014 ``` ``` 6 ``` ## **Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735], under no circumstances, the monthly income of Rs.6,000/- can be treated as an unreasonable figure in respect of an accident occurred in the year 2008. Therefore, I deem it appropriate to fix the monthly income as Rs.6,000/-. While reassessing the compensation for disability with the revised monthly income, the said amount would come to Rs.4,16,160/- (6,000 x 12 x 17 x 34/100). After deducting the amount of Rs.1,71,360/-, which is the amount already awarded by the Tribunal, the additional amount would come to Rs.2,44,800/-. 11. Consequent to the revision of monthly income, the appellant will also be entitled to a further sum of Rs.14,000/[( 6000 x 3) – 10000] 12. When moving on to the other heads, considering the nature of injuries, the period of hospitalisation, which was 18 days and other relevant aspects, I deem it appropriate to grant a further sum of Rs.12,000/- under the head of pain and ``` MACA NO. 2438 OF 2014 ``` ``` 7 ``` suffering as the amount of Rs.13,000/- already awarded by the Tribunal appears to be on the lower side. Similarly, the amount awarded by the Tribunal for loss of amenities and enjoyment in life is only Rs.9,000/-. Considering the nature of the injuries and the consequential disability, I deem it appropriate to grant a further sum of Rs.15,000/- under the said head. Thus, the total additional compensation receivable by the appellant is determined as Rs.2,85,800/- (244800 + 14000 +12000 +15000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 31.12.2012 in O.P. (M.V) No.407/2009 passed by the Motor Accident Claims Tribunal, Vatakara, is hereby modified by granting an additional compensation of Rs.2,85,800/- (Rupees two lakh eighty five thousand and eight hundred only) and the 3[rd] respondent Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three ``` MACA NO. 2438 OF 2014 ``` ``` 8 ``` months from the date of receipt of a copy this judgment. However, it is clarified that, as the appeal was filed along with a petition to condone the delay of 509 days in filing the appeal, the appellant shall not be entitled to get interest for the period of delay for the enhanced amount. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs