Anil Kumar.K v K. Mohammed Koya; Maniparambil Moosa; The New India Assurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 23[RD] DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944 ``` ## **`MACA NO. 255 OF 2013`** ``` AGAINST THE AWARD DATED 05.03.2010 IN O.P(M.V) NO.1302/2004 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/CLAIMANT:`** ``` ANIL KUMAR.K S/O. CHEROOTTY, AGED 37 YEARS, KOTTOL HOUSE, PARAMBIL P.O., MERIKKUNNU, KOZHIKODE. BY ADV. SRI.M.KRISHNAKUMAR ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K. MOHAMMED KOYA S/O. MUHAMMED, KUTTIPURATH HOUSE, KOTTAPARAMBA, KOZHIKODE - 673 020. 2MANIPARAMBIL MOOSA S/O. MAMMED, MAYYANAD AMSOM, P.O. MAYYANAD, KOZHIKODE - 673 008. 3THE NEW INDIA ASSURANCE COMPANY LIMITED SHAFEER COMPLEX, OPP. YMCA, KANNUR ROAD, KOZHIKODE- 673 001. BY ADVS. SMT.M.MEENA JOHN R3 BY SRI.VIJU THOMAS, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.255 of 2013 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 23[rd] day of September, 2022`** This appeal is filed challenging an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 05.03.2010 in O.P(M.V) No.1302/2004. 2. The appellant is the injured in a motor vehicle accident that occurred at about 12.30 pm on 10.08.2003. The appellant while riding a motor cycle bearing Registration No.KL 11 R 7462 from Mukkom to Kozhikode was knocked down by a lorry owned by the 1[st] respondent and driven by the 2[nd] respondent. The appellant was thrown off the road with serious injuries. Alleging that the 2[nd] respondent has driven the lorry in a rash and negligent manner and claiming Rs.2,50,000/- as compensation, the above claim petition was preferred by the appellant before the Tribunal. For the sake of convenience the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3. ``` M.A.C.A.No.255 of 2013 ``` ``` 3 ``` 3. Respondents 1 and 2 though served with notice did not contest the claim petition. The insurance coverage of the vehicle was admitted by the 3[rd] respondent. On the side of the petitioner Exts.A1 to A4 and X1 series and Ext.C1 were marked. Evidence was not adduced by the respondents. On appreciation of the evidence on record, the Tribunal arrived at a finding of negligence on the side of the 2[nd] respondent and entitlement for the petitioner to receive compensation. The compensation payable was arrived at Rs.1,12,475/- and the 3[rd] respondent was directed to deposit it with interest at the rate of 7% per annum from 28.07.2004, the date on which claim petition was filed. Aggrieved by the award the appeal on hand is filed. 4. Sri.M.Krishna Kumar, the learned counsel for the petitioner has contended that the petitioner was alleged as a Mechanic but the Tribunal has taken only Rs.2,000/- as his monthly income. According to him since the accident was occurred in the year 2003, the Tribunal ought to have taken Rs.4,500/- as his monthly income for the purpose of ``` M.A.C.A.No.255 of 2013 ``` ``` 4 ``` assessment of compensation. In Ramachandrappa vs. Royal Sundaram Alliance Insurance Co. Ltd. [(2011) 13 SCC 236] , the Apex Court had taken Rs.4,500/- as the monthly income of a coolie worker. According to him monthly income if modified accordingly, there would be considerable increase in the compensation payable under the heads loss of earning and permanent disability. It was contended that the claimant had sustained serious injuries in the motor accident but, Rs.15,000/- alone was granted by the Tribunal under the head pain and suffering and compensation was not awarded for loss of amenities and enjoyments in life. Under the head loss of earnings only two months period is considered. According to the learned counsel, loss of earning ought to have been considered for more period than two months. Under the head extra nourishment the Tribunal had granted only Rs.300/though a claim was made for Rs.3,000/-. According to the learned counsel interference is needed on that count. Modification of Rs.500/- granted as compensation for transportation is also urged. According to the learned counsel ``` M.A.C.A.No.255 of 2013 ``` ``` 5 ``` the Tribunal ought to have taken 18 as the multiplier since the deceased was aged 27 years at the relevant time of accident. 5. The 3[rd] respondent has admitted insurance coverage of the motor vehicle involved in the motor accident. It is contended by the learned counsel on behalf of the 3[rd] respondent that the multiplier is correctly taken as 17 and there is no scope for interference. According to him the compensation granted by the Tribunal is just and reasonable and when no claim is made by the petitioner for grant of compensation under the head loss of amenities, the Tribunal cannot be found fault with not granting it. 6. It is noticed that the accident was occurred in the year 2003. The dictum in Ramachandrappa supra was laid by the Apex Court in the case of a coolie worker who had met with a motor vehicle accident in the year 2004. In the claim petition, the petitioner claimed to have a monthly income of Rs.4,000/-. It appears to this Court, reasonable and that is considered for the purpose of assessment of compensation for loss of earning and permanent disability. ``` M.A.C.A.No.255 of 2013 ``` ``` 6 ``` 7. It is pertinent to note from the wound certificate, a copy of which is marked in evidence as Ext.A2, that the petitioner had sustained compound fracture of both bones of left leg, compound fracture of both bones of left forearm with soft tissue injury first web left, degloving injury left thumb and dorsum of left hand and abrasion over left cheek. Fractures were confirmed in X-ray. From Ext.X1 series of case records, it is revealed that the injured was admitted at Medical College Hospital on 10.08.2003 and discharged on 04.10.2003 after a surgery. Despite the factum that the petitioner had sustained serious injuries as above, the Tribunal has considered only loss of earnings for two months. The period being inadequate, this Court is inclined to take six months. When loss of earnings is considered with Rs.4,000/- as the modified monthly income and for six months the compensation payable for loss of earning would come to Rs.24,000/-. The Tribunal has awarded Rs.4,000/- and that when credited in the amount now arrived at, Rs.20,000/- is payable in addition under the above head. ``` M.A.C.A.No.255 of 2013 ``` ``` 7 ``` 8. Despite the fact that a claim is not made for compensation towards bystander expenses, the Tribunal granted Rs.5,400/-. The amount covered by the medical bills was taken while assessing compensation for treatment expenses. The Tribunal has awarded only Rs.15,000/- under the head pain and suffering. It appears that the Tribunal while granting the said sum as compensation for pain and suffering failed to apply its mind to the injuries sustained by the petitioner and the treatment procedures undergone by him. This Court is inclined to grant Rs.35,000/- over and above Rs.15,000/- already awarded by the Tribunal. The petitioner failed to raise a claim for compensation towards loss of amenities and enjoyments in life. On due consideration of the injuries this Court finds it reasonable to award Rs.20,000/- under that head. Towards extra nourishment, against the claim raised for Rs.3,000/-, Rs.300/- alone was granted by the Tribunal, which undoubtedly is a sum disproportionate to the injuries suffered. Therefore this Court is inclined to take Rs.3,000/- itself in accordance with the claim of the petitioner. In the modification ``` M.A.C.A.No.255 of 2013 ``` ``` 8 ``` as above, Rs.2,700/- is payable additionally under that head. Petitioner was treated at Medical College Hospital, Kozhikode as in-patient for a considerable period of time. Therefore, undoubtedly some amount must have been incurred towards transportation expenses. Rs.500/- granted by the Tribunal appears to this Court too low and therefore is inclined to enhance it to Rs.3,000/-, so that Rs.2,500/- would be payable additionally under that head. The Tribunal has arrived at the compensation payable towards permanent disability by adopting 17 as the multiplier and 19% as the disability certified by the Medical Board. When calculated on the basis of Rs.4,000/- adopted by this Court as monthly income, Rs.1,55,040/- would be payable as compensation under the head permanent disability. Rs.77,520/- already granted by the Tribunal when deducted therefrom, the compensation payable additionally would be Rs.77,520/-. 9. Therefore in the modification and reassessment of compensation as above, the petitioner would be entitled to get Rs.1,57,720/- (Rupees One Lakh Fifty seven Thousand Seven ``` M.A.C.A.No.255 of 2013 ``` ``` 9 ``` Hundred and Twenty only) additionally. The 3[rd] respondent shall deposit the compensation already awarded by the Tribunal by the impugned award (if not paid) and the additional compensation now arrived at by this Court in the appeal on hand, with interest at the rate of 7.5% per annum, from the date of the petition till realisation within a period of two months from the date on which a copy of this judgment is served on them. The petitioner shall furnish the particulars of the account maintained by him with his banker, to the 3[rd] respondent so that the amount can be deposited in his account without delay. M.A.C.A stands allowed accordingly. **MARY JOSEPH** **JUDGE** NAB