Ali K.P. v. The Branch Manager, New India Assurance Company Ltd., Kalpetta

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 ``` ## `MACA NO. 2211 OF 2012` ``` [AGAINST THE AWARD DATED 31.10.2011 IN OP(MV)NO.114/2009 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA] ``` ## `APPELLANT/PETITIONER:` ``` ALI K.P, S/O.MUHAMMED HAJI, AGED 35 YEARS, KARHIRAPPILAL HOUSE, RIPPON POST, RIPPON - PUTHIKKAD, WAYANAD DISTRICT. ``` ``` BY ADV CELINE JOSEPH ``` ## `RESPONDENT/RESPONDENT NO.3:` ``` THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., KALPETTA – 673 121. ``` ``` BY ADVS.LAL K JOSEPH, SC P.MURALEEDHARAN (THURAVOOR)(K/1651/2000) SURESH SUKUMAR(K/634/1997) ANZIL SALIM(K/000447/2018) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2211 OF 2012 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellant, while travelling in a jeep, was injured in a road accident, when it was hit by the offending vehicle driven in a rash and negligent manner. He sustained injuries and thereupon filedOP(MV) No.114/2009 before the Motor Accidents Claims Tribunal, Kalpetta (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of Rs.1,50,000/-, but which has been allowed only to an extent of Rs.1,08,600/-. He, therefore, impugns the Award as being inadequate. ``` ``` 2.Smt.Celine Joseph – learned Counsel for ``` ``` the appellant, argued that the primary reason why the compensation awarded has been fixed so low by the Tribunal is because it has erred in adopting the notional income of her client to be Rs.3,000/-, even though there is enough evidence to show that he was working as a Plantation ``` ``` MACA NO. 2211 OF 2012 ``` ``` -3- ``` ``` Supervisor, with a monthly income of Rs.5,000/-. ``` ``` 3.Smt.Celine Joseph then added that the compensation awarded by the Tribunal under various heads, including “Loss of Earning”, ``` ``` “Extra Nourishment”, “Bystanders Expenses” and ``` ``` “Pain and Suffering”, is so exiguous that it obtains no rational nexus to the injuries sustained by her client. She thus prayed that this Appeal be allowed and the compensation enhanced as prayed for. ``` ``` 4.Sri.Lal K.Joseph – learned Standing ``` ``` Counsel for the Insurance Company, on the other ``` ``` hand, submitted that the computations adopted by the Tribunal are without error, since the accident occurred as early as in the year 2007. He, however, pointed out that the multiplier adopted by the Tribunal, in awarding compensation undertheheadpermanent ``` ``` disability, was wrong because, admittedly, the ``` ``` MACA NO. 2211 OF 2012 ``` **==> picture [22 x 8] intentionally omitted <==** ``` appellant was 32 years old at the time of the accident and hence only ‘16’ could have been ``` ``` adopted. He thus prayed that this Appeal be ``` ``` dismissed. ``` ``` 5.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on ``` ``` record, which I have analyzed very carefully. ``` ``` 6.I notice that this is a matter which has ``` ``` been pending before this Court since 2012, but without being admitted. The learned counsel on ``` ``` both sides were ad idem that this matter be ``` ``` formally admitted and disposed of today itself, taking note of the fact that the accident occurred as early as in the year 2007. I proceed ``` ``` to do so. ``` ``` 7.When I evaluate the evidence on record, ``` ``` it is without doubt that the factum of the ``` ``` accident and the injuries sustained by the appellant are not in dispute. The claimant ``` ``` MACA NO. 2211 OF 2012 ``` ``` -5- ``` ``` claims his occupation, to be a supervisor of a plantation, and asserts Rs.5,000/- to be his income. Of course, the Tribunal is right in saying that no evidence has been led to ``` ``` establish this. ``` ``` 8.However, going byRamachandrappa v. Manager, Royal Sundaram Alliance Insurance ``` ``` Company Ltd. [(2011) 13 SCC 236], even in the case of a person with unascertainable income in the year 2007 – when the accident occurred – the notional income to be adopted is Rs.6,000/-. ``` ``` Since the appellant has claimed only Rs.5,000, same ought to have been reckoned in his favour. ``` ``` Axiomatically, the compensation under the head “Loss of Earning” granted by the Tribunal will also have to be revised, reckoning such notional income. ``` ``` 9.That said, the compensation under the heads“Bystanderexpenses”and“Extra ``` ## `MACA NO. 2211 OF 2012` ``` -6- ``` ``` Nourishment” has been granted by the Tribunal, adverting to the fact that the appellant had to endure treatment as an inpatient for 14 days, but granting Rs.100/- per day alone. Similarly, under the head “Pain and Suffering”, the learned Tribunal has only allowed Rs.8,000/-, presumably because what was claimed was only Rs.10,000/-. ``` ``` 10.Going by the medical evidence on record, particularly Ext.A4, the appellant has suffered the following injuries: ``` ``` “(i)Lacerated wound 2*1*1 cm right lower eye lid lateral aspect. ``` ``` (ii)Lacerated wound 2*1*0.5 cm right ``` ``` lower eye lid medial aspect. ``` ``` (iii)Lacerated wound 4*2*2 cm lateral ``` ``` part of right eyebrow. ``` ``` (iv)Nose bleeding, oral cavity bleeding. (v)Multiple hemorrhage. ``` ``` (vi) Contusion right parietal lobe. ``` ``` (vii)Comminuted depressed fracture right frontal bone pneumocephalus. ``` ``` MACA NO. 2211 OF 2012 ``` **==> picture [22 x 8] intentionally omitted <==** ``` 11.It is thus evident that the appellant suffered fracture with multiple hemorrhages and other injuries like contusion and laceration, and I cannot see this as being trivial, or not so serious. I am, therefore, of the firm view that the compensation under the afore heads also requires to be raised proportionately, so that it will have the semblance of just and fair reparation. ``` ``` In the afore circumstances, this Appeal is allowed in the following manner: ``` ``` (a) The compensation under the head permanent disability is revised to Rs.96,000/- (Rupees ninety six thousand only), reckoning the notional income of the appellant to be Rs.5,000 per month, with the multiplier of ‘16’ instead of ‘17’ as adopted by the Tribunal and retaining the percentile of permanent disability to be 10, as correctly found by it. ``` ``` MACA NO. 2211 OF 2012 ``` **==> picture [22 x 9] intentionally omitted <==** - `(b) The compensation under the head “Loss of` ``` Earning” is consequently enhanced to Rs.25,000/- (Rupees twenty five thousand only), again reckoning the notional income of the appellant to be Rs.5,000/- per month. ``` - `(c) The compensation under the head` ``` “Bystander Expenses” is revised to Rs.3,500/- (Rupees three thousand five hundred only), reckoning the per diem expenses to be Rs.250/- in the year 2007. ``` ``` (d)The compensation under the head “Extra ``` ``` Nourishment is enhanced to Rs.2,800/- (Rupees ``` ``` two thousand eight hundred only), reckoning the per diem expenses to be Rs.200/-. ``` ``` (e) The compensation under the head “Pain and Suffering” is enhanced to Rs.20,000/- ``` ``` (Rupees twenty thousand only), from Rs.8,000/- as granted by the Tribunal. ``` ``` (f)In all other heads, the compensation ``` ``` MACA NO. 2211 OF 2012 ``` **==> picture [22 x 9] intentionally omitted <==** ``` granted by the Tribunal will remain intact. ``` ``` Needless to say, theappellant 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%, as awarded by the Tribunal, 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 two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ## `JUDGE` ``` akv ```