**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR**
**&**
**THE HONOURABLE MRS. JUSTICE MARY JOSEPH**
**FRIDAY, THE 15TH DAY OF DECEMBER 2017 / 24TH AGRAHAYANA, 1939**
**M.A.C.A.No. 871 of 2014**
**AGAINST THE AWARD IN O.P.(MV)No.640/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 24-10-2013**
## **APPELLANT/PETITIONER**
**AJITH MANDAL AGED 56 YEARS, S/O.GOPINATH MONDAL, A.K. SOORAJ NIVAS, THOTTATHIPARAMBU ROAD, CHAMBAKKARA, MARADU P.O., ERNAKULAM.**
**BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.ANILA PETER SRI.J.VIVEK GEORGE SMT.C.PRABITHA**
## **RESPONDENTS/RESPONDENTS:**
**1. P.T JOSE PUNNELIPARAMBIL HOUSE, P.O.THAZHEKAD, THRISSUR - 680 697.**
**2. K.A. VARGHESE S/O ANTONY, KOKKADAN HOUSE, NEAR CHURCH, KODUNGA,**
- **VELLIKULANGARA P.O., THRISSUR - 680 693.**
**3. THE NATIONAL INSURANCE COMPANY LIMITED COCHIN DIVISIONAL OFFICE, AJAY VIHAR, M.G. ROAD, COCHIN - 682 016.**
**R3 BY ADV. E.M JOSEPH**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**NAB/09/07/18**
## C.T. RAVIKUMAR & MARY JOSEPH, JJ.
========================= M.A.C.A. No.871 of 2014 ========================= Dated this the 15[th] day of December, 2017
## J U D G M E N T
## Mary Joseph, J.
The victim of a motor accident, who had preferred a claim petition as OP(MV) No.640/2011 before the Motor Accidents Claims Tribunal, Ernakulam (hereinafter referred to as 'the Tribunal' for short), has approached this Court, challenging the quantum of compensation awarded on the ground that it is inadequate and not proportionate to the injuries sustained by him. According to him, the accident was occurred at 9.30 a.m. on 23.01.2011, when the scooter bearing Regn. No.KL-39/A 8926, ridden by him through Vyttila Edappally National Highway was hit by a mini lorry bearing Regn. No.KL-8/U 8496, due to the rash and negligent driving by its driver and thereby, he had sustained serious injuries. He was rushed to Welcare Hospital, Vyttila, and there, he had undergone treatment as inpatient for a period of 7 days. Accordingly, the claim petition was preferred before the Tribunal, seeking a compensation of `1,50,000/-. The
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driver and the owner of the mini lorry were arrayed as the first and the second respondents respectively in the claim petition. They remained ex parte though summons were served upon them. The third respondent, the insurer, had contested the claim petition. The insurance coverage of the mini lorry was admitted by the third respondent.
2. Before the Tribunal, the petitioner had let in documentary evidence as Exts.A1 to A13 and Ext.C1, and based on that the compensation was arrived at as `84,960/-. Aggrieved by the said quantum of compensation awarded by the Tribunal, the petitioner has approached this Court in the captioned appeal.
3. Sri.Anil.S.Raj and Sri.M.A.George, the respective learned counsel representing the rival parties were heard. The documentary evidence on record were perused.
4. The contention firstly advanced by the learned counsel for the petitioner was that the monthly income for the purpose of computation of compensation for loss of earning and disability was fixed by the Tribunal notionally as `4,000/-. According to the counsel, the petitioner had taken the plea that he was
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employed as a gardener and earning `20,000/- monthly and also adduced documentary evidence as Exts.A9 and A10 to substantiate the plea. But the Tribunal, by totally discarding the evidence as aforesaid, fixed the monthly income notionally as `4,000/-. According to the counsel, the Tribunal is highly unjustified in doing so. The further contention advanced by the learned counsel was that the Tribunal failed to grant any compensation under the head 'loss of amenities' though, in view of the medical evidence adduced by the petitioner, his claim for that was well substantiated. According to him, Ext.A11, the copy of the wound certificate, Ext.A12, the copy of the treatment certificate and Ext.A13, the copy of the discharge card issued from the Welcare Hospital, Vyttila produced and marked at the instance of the petitioner before the Tribunal would indicate that he had sustained fracture of tibia and contusion on chest and was treated as inpatient for seven days. But, the Tribunal failed to award any compensation towards loss of amenities. The last and final contention advanced by the learned counsel was that in view of fixing of the notional income of `4000/- as the monthly income, the petitioner was also denied with adequate and reasonable
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compensation under the head ' permanent disability', which was established by him through Ext.C1. According to the learned counsel, in the aforesaid circumstances, a re-visitation and recomputation of compensation is highly warranted in the matter.
5. We have gone through the impugned award to see how the Tribunal has appreciated the evidence on record. It is pertinent to note that the petitioner did not mount the box to give oral evidence. To substantiate his claim regarding job and income, he has produced Exts.A9 and A10, which are nothing but income tax returns. Going by the description about the said documents in the impugned award, it is seen that those do not bear the signature and seal of the authorities, who had received the same. Therefore, we cannot find fault with the Tribunal in not placing reliance on those documents while fixing the monthly income. It is in a circumstance, where no reliable evidence was available that the Tribunal had fixed the monthly income notionally as `4000/-. But, the Tribunal ought to have applied its mind to the year in which the accident was occurred while fixing the monthly income. In the case on hand, the accident was occurred in the year 2011. It is pertinent to note that the Apex
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Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] had taken `4500/- as the monthly income for computation of compensation in the case of a coolie worker, who met with a motor accident in the year 2004. The Tribunal ought to have bear in mind this aspect while fixing the monthly income of the victim in the case on hand. Since the accident was occurred in the year 2011, in view of the case cited supra, we are perfectly justified in refixing the monthly income of the victim as `8000/- in the case on hand and accordingly, we do so.
6. It seems from the impugned award that the Tribunal had considered the age of the victim at the relevant time of accident as 53 years and multiplier was adopted correctly as 11. The Tribunal has also taken three months' period for the purpose of computation of compensation for loss of earnings. In the absence of any challenge by the insurer regarding those aspects, we are declined to interfere with those. When the compensation is recomputed on the basis of the monthly income refixed by us as `8000/- and maintaining the other factors relevant for reckoning the compensation, the compensation payable under
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the head 'loss of earning' would come to `24,000/-. The Tribunal had already awarded `12,000/- in the original award and therefore, a sum of `12,000/- is found payable in addition under that head. When compensation for disability is reassessed with the refixed monthly income of `8000/-, needless to say that there would be sufficient increase in the quantum of compensation payable under that head. `73,920/(`8000x12x11x7/100) is the sum arrived at in the reassessment done as above. The Tribunal has awarded a sum of `36,960/and therefore, a sum equal to that would be payable as additional sum under the head 'disability'. As rightly pointed out by the learned counsel, the Tribunal failed to award any sum as compensation under the head 'loss of amenities'. As the discussion in the impugned award reveals, the petitioner had sustained fracture of tibia. It is true that the discussion of the Tribunal is insufficient to indicate the nature of treatment availed by the petitioner. However, we cannot ignore the fact that the petitioner's fractured leg must have been corrected by applying Plaster of Paris (POP) cast and because of that, he must have been put to loss of amenities and enjoyments in life. The Tribunal, in
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our view, is highly unjustified in not awarding any sum as compensation under the head 'loss of amenities'. In the said circumstances, we are inclined to grant a sum of `10,000/- under that head.
7. The schedule in the impugned award would unveil to us that compensation has not been awarded under the head 'extra nourishment' and only a meagre sum of `500/- was awarded under the head 'damages to clothing'. Indisputably, the petitioner had undergone inpatient treatment at Welcare Hospital, Vyttila for 7 days. Therefore, we are inclined to grant a sum of `700/- by fixing `100/- per day under the head 'extra nourishment' and `500/- more under the head 'damages to clothing'.
8. In our refixation of the compensation as above, a sum of `60,160/- (Rupees Sixty thousand one hundred and sixty only) is found payable to the petitioner as additional compensation. The said amount would carry interest at the rate of 8% p.a. from the date of the claim petition till the date of realisation.
In the result, M.A.C.A is allowed and a sum of `60,160/- (Rupees Sixty thousand one hundred and sixty only) is
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granted as additional compensation to the petitioner with interest at the rate of 8% p.a. from the date of the claim petition till the date of realisation. The third respondent being the insurer is directed to deposit the amount within two months from the date of receipt of a copy of this judgment. No order as to costs.
Sd/-
## C.T. RAVIKUMAR, JUDGE
Sd/MARY JOSEPH, JUDGE
Skk/161217
