Ambujakshan S/o Late Purushothaman v. K.N. Ramesh @ Rameshan and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938** **MACA.No. 1951 of 2011 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 1406/2005 of MACT ALAPPUZHA DATED 28-04-2010** ## **APPELLANT/PETITIONER:** **---------------------------------** **AMBUJAKSHAN S/O.LATE PURUSHOTHAMAN, NADUVILEKOTTANGANATTU, EZHUPUNNA P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.G.ARUN GOPAN** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. K.N.RAMESH @ RAMESHAN** **S/O. NARAYANAN, KALARICKAL HOUSE, AROOR PANCHAYATH, WARD 11, CHANDIROOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-688 547.** **2. NATIONAL INSURANCE COMPANY LIMITED** **REPRESENTED BY ITS MANAGER, AROOR BRANCH, AROOR-688 534.** **R2 BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1951 OF 2011** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of May, 2016 ## **JUDGMENT** ## Jyothindranath, J. This appeal is preferred aggrieved by the award dated 28.4.2010 made in O.P.(MV)No.1406/2005 by the Motor Accidents Claims Tribunal, Alappuzha. The appellant is challenging the quantum of compensation awarded by the Tribunal. The appellant is the claimant. The facts relevant for consideration of this appeal is as follows : A motor vehicle accident occurred on 15/12/2004 at about 8.45 p.m. involving a motor cycle bearing Reg.No.KL-7/Q-7560. The appellant herein was the pillion rider on the said vehicle. The vehicle capsized and the appellant sustained severe head injuries. A compensation claim was moved before the Tribunal arraying the owner cum rider of the motor cycle as respondent No.1 and the Insurance Company as respondent No.2. After appreciating the materials before the Tribunal, the Tribunal awarded a total compensation of M.A.C.A.No.1951/2011 2 Rs.2,20,000/-. Aggrieved by the said quantum of compensation, this appeal is preferred. 2. When the appeal came up for hearing, the learned counsel for the appellant submitted before us that the appellant was a lorry driver, who was earning more Rs.4,500/- per month. The Tribunal took only a notional income of Rs.3,000/-. It is the further submission that the appellant sustained very severe injuries and there is loss of his right eye sight also. The said fact was not considered by the Tribunal. Even though Ext.A11 was produced to substantiate the same, the Tribunal considered only 15% disability for assessment purpose. It is the submission that the Tribunal should have taken note of the fact that if the eye sight of one eye is lost, 30% disability can be considered without any record. The Tribunal erred in not considering a disability of atleast 30% for calculation purpose. It is also submitted that the petitioner also sustained very severe head injuries. 3. We also heard the learned counsel for the Insurance Company. The learned counsel for the Insurance Company submitted that the petitioner has not proved that he is a driver by profession. M.A.C.A.No.1951/2011 3 Neither the driving licence nor any other material is produced to substantiate his claim that he is a driver by profession. It is the submission that even though Ext.A11 marked, there is nothing to corroborate his claim especially when the document is not proved. It is the submission that the Doctor was not examined. The appellant was not examined by a Medical Board and the medical records from the Lakeshore Hospital was also not seen summoned. It is the submission that, in this case, the appellant was hospitalized only for a period of 18 days. But, the Tribunal considered it as 60 days for calculating the compensation under the head of bystander's expenses. The accident occurred in the year 2004 and under such circumstances, the compensation of Rs.2,20,000/- awarded by the Tribunal is a just compensation and an interference by this Court is not warranted, it is submitted. 4. After hearing the learned counsel on both sides, it can be seen that there is no reliable material to show that the appellant was a driver by profession. In this context, it will be relevant to refer to the decision of the Apex Court in **Ramachandrappa v. Manager, Royal** M.A.C.A.No.1951/2011 4 ## **Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** . That was a case where the accident occurred in the year 2004. Claimant therein was a coolie. The Apex Court fixed his monthly income notionally as Rs.4,500/- for the purpose of computing compensation. In the present case, the accident occurred on 15/12/2004. Under such circumstances, it will be only just and proper to consider Rs.4,500/- as his monthly income for calculation purpose. It can be further seen that even though the Tribunal considered 60 days for assessing bystander's expenses, the injuries sustained by the appellant are very severe in nature. The injuries sustained are as follows : “ Abrasion over both hands and both legs, lacerated wounds on little finger and ring finger of left hand, lacerated wound of left hand in between the little and ring fingers 1 x 0.5 cm., lacerated wound at face lateral to right side of nose, skull fracture – frontal bone region, skull fracture – parietal bone region, head injury with fracture on lobe, subdural haematoma right frontal region, multiple abrasions inside the mouth, lacerated wound at tongue with swelling, lacerated wound at M.A.C.A.No.1951/2011 5 sphenoid bone, lacerated injury of upper eyelid of left eye and congestion of right eye multiple injuries on scalp varying site – lacerated injury anterior aspects tongue,abrasions at both shoulders, contusion and swelling at maxilla and mandible region and nasal bleeding and multiple abrasion of varying range are over the left knee joint and left thigh.” 5. It is pertinent to note that the petitioner produced Ext.A11 which will show that there was S.D.H.(right) of fronto temporal region and he sustained cranial nerve injury. Surely, the said document is not proved. Under such circumstances, when there is no positive proof regarding his loss of eye sight, we are not inclined to interfere with the percentage of disability taken by the Tribunal for assessment purpose. 6. After going through the other heads on which compensation is awarded, we feel that the compensation has to be reassessed or additional compensation has to be awarded on the following heads. 7. Considering Rs.4,500/- as his monthly income, on the head of loss of earnings for six months, he will be entitled to get an M.A.C.A.No.1951/2011 6 additional compensation of Rs.9,000/-. Apart from this amount, he is also entitled for an additional amount of Rs.1,500/- on the head of extra nourishment and an additional sum of Rs.500/- on the head of damage to clothing. The Tribunal awarded only a sum of Rs.20,000/- towards pain and suffering. Considering the nature of the injuries as described above and further considering the pain involved in such an head injury matter, we are inclined to grant an additional sum of Rs.15,000/- on this head. Apart from this, compensation for permanent disability and loss of earning power is also seen assessed by taking a monthly income of Rs.3,000/-. When the monthly income is taken as Rs.4,500/-, the appellant will be entitled to an additional sum of Rs.32,400/- . It is made clear that while calculating the compensation, we have taken only a multiplier of 14 in this case, even though the Tribunal has wrongly taken the multiplier as 15. In this case, the compensation for loss of amenities, only a sum of Rs.3,000/- is seen awarded. It is a case of severe head injury. It is evident from the discussion above that he sustained fracture on the skull, he got a case that there is also cranial nerve injury,. Thus considering all these aspects, a sum of Rs.17,000/- M.A.C.A.No.1951/2011 7 is awarded over and above the amount already awarded on the head of loss of amenities. Thus, the appellant will be entitled to get an additional sum of Rs.75,400/- towards compensation. This amount will bear 8% interest per annum from the date of petition till realization. The Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment. If the amount is not deposited within the stipulated period, the additional compensation awarded herein will bear 9% interest from the date of petition till realization. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv.