Arun C. Satheesh v. Abhilash, Antony V J, National Insurance Co Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 ``` ``` MACA NO. 1641 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENTOPMV 739/2005 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM ``` ## **`APPELLANT/PETITIONER:`** ``` ARUN C.SATHEESH, AGED 34 YEARS, S/O.C R SATEESH, KAKKAMCHIRA HOUSE, KANJIRAM P O, KOTTAYAM DIST. ``` ``` BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1ABHILASH, KAREETHARAYIL HOUSE, THANNEERMUKKOM P O, CHERTHALA, ALAPPUZHA DIST, PIN-688 527 2ANTONY V J, S/O.JOB, VADAPURATHUCHIRA, KUDAVECHOOR, VAIKOM, KOTTAYAM DIST, PIN-686 144 3NATIONAL INSURANCE CO LTD., REP BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KOTTAYAM, PIN-686 001 ``` ``` BY ADV SMT.DEEPA GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.1641/2013 2 ## **`JUDGMENT`** ``` (Dated: 17[th] October, 2022) ``` Aggrieved by the award of compensation in O.P.(MV) No.739 of 2005 on the file of the Addl. Motor Accidents Claims Tribunal, Kottayam, the petitioner has filed this appeal, claiming enhancement of compensation. 2. Brief facts of the case are as follows: The petitioner was employed as supervisor of toddy tapping in a toddy shop. On 10.11.2004 at 10.30 p.m., while the petitioner was travelling as a pillion rider in a motorcycle ridden by the 1[st] respondent from Gopalapuram to Erattappalam, due to negligent driving of the motorcycle it fell on a gutter and a piece of granite splashed from the gutter, hit on the left eye of the appellant/petitioner and he sustained serious injuries. He was taken to Aluva Hospital and then to Medical College Hospital, Kottayam, where he was treated as an inpatient. He continued his treatment at Sreedhareeyam Ayurveda Hospital. The accident MACA No.1641/2013 3 happened due to rash and negligent riding of the motorcycle by the 1[st] respondent. 2[nd] and 3[rd] respondents are owners and insurers at the time of the accident. 3[rd] respondent alone had filed a written statement contending that there is no valid insurance policy for the vehicle and that the rider of the motorcycle did not have a valid driving licence. The compensation claimed is exorbitant and hence prayed for the dismissal of the original petition. 3. The Tribunal awarded total compensation of Rs.2,37,550/- with interest at the rate of 7.5% per annum from the date of petition till realisation, relying on Exts.A1 to A9 and X1 disability certificate. The counsel for the appellant submits that the petitioner was aged 27 years at the time of the accident and was earning a monthly income of Rs.5,000/- as a supervisor in a toddy shop. The Tribunal did not take the monthly income as Rs.5,000/-, instead took it only Rs.3,000/-. Moreover, he MACA No.1641/2013 4 was an inpatient for two spells, one from 12.11.2004 to 22.11.2004 and 28.11.2004 to 19.12.2004 as an inpatient at Medical College Hospital and Sreedhareeyam Ayurveda Hospital. So the compensation awarded for pain and suffering is on the lower side. It is also submitted that no amount was given on the head of loss of amenities in life. 4. The learned counsel for the respondents submits that just and reasonable compensation has been awarded by the Tribunal. The Tribunal has taken the monthly income as Rs.3,000/- in the absence of any documentary evidence to show that he was earning Rs.5,000/- per month. 5. It is an admitted fact that though the appellant claimed Rs.5,000/- per month, he has not adduced any evidence to prove that he was earning the said income. In the absence of any evidence and considering the dictum laid down by the Apex Court in _**Ramachandrappa v. Manager, Royal**_ MACA No.1641/2013 5 _**Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236**_ , wherein a coolie worker who had met with an accident in the year 2004, the monthly income be taken is Rs.4,500/- per month. Ext.X1 is the disability certificate issued by the Medical Board, which shows that there is a permanent disability of 30%. The Tribunal had taken the multiplier as 18. Going by the tabular column, the multiplier to be adopted for a person between the age group of 26 to 30 is 17, hence taking the multiplier as 17, the disability compensation can be calculated as 4500x12x17x30/100 = 2,75,400/-. 6. As far as loss of amenities in life is concerned, though he had sustained serious injuries to his eyes and there is a permanent disability of 30%, an amount of Rs.10,000/- would be just and equitable under the said head. For pain and suffering, though he claimed Rs.25,000/-, Rs.17,000/- was awarded considering the injury sustained. At the time of the MACA No.1641/2013 6 accident, the appellant was aged 27 years and sustained injuries to his eyes with a permanent disability of 30%. Taking note of the above facts, an amount of Rs.5,000/- more is awarded under the head pain and suffering. Towards loss of earnings, the Tribunal has awarded Rs.9,000/-; taking Rs.3,000/- as his monthly income for a period of three months. When the monthly income has taken as Rs.4,500/- for three months, the same will come to Rs.13,500/-. ## Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded by<br>Tribunal (Rs.)|Amt.<br>Enhanced<br>in<br>appeal (Rs.)| |---|---|---|---| |1.|Compensation<br>for<br>permanent<br>disability|1,94,400/-|2,75,400/-| |2.|Pain and suffering|17,000/-|22,000/-| |3.|Loss of earning|9,000/-|13,500/-| ||Total|2,20,400/-|3,10,900/-| ||Amount enhanced : 3,10,900 – 2,20,400 = 90,500**/-.**||| MACA No.1641/2013 7 In the result, the appeal is allowed and the appellant is entitled for enhanced compensation of Rs.90,500/- (Rupees Ninety thousand five hundred only). The insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 7.5% from the date of the petition till realisation. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate MACA No.1641/2013 8 ordered by the Tribunal from the date of petition. The appeal was filed with a delay of 423 days. While condoning the delay, this court has made clear that if the appeal is allowed and enhanced compensation is awarded, the appellant would not be entitled for the interest to the extent of delay occurred. Hence the appellant will not be entitled for the interest on the enhanced amount for 423 days in filing the appeal. The appeal is allowed as above. _Sd/-_ **BASANT BALAJI, JUDGE** ss