Arun Cherian v. The New India Assurance Co. Ltd.

**MACA NO. 1386 OF 2020** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945 MACA NO. 1386 OF 2020** **AGAINST THE AWARD DATED 19.10.2019 IN OPMV 517/2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TALIPARAMBA APPELLANT/PETITIONER:** **ARUN CHERIAN AGED 28 YEARS S/O CHERIAN,THAKADIYEL HOUSE,THERTHALLY.P.O, ALAKODE VIA,KANNUR DISTRICT, PIN-670571. BY ADV M.R.JAYALATHA** ## **RESPONDENT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD REP BY TS BRANCH MANAGER,CITY CENTRE, BLOCK -1,2ND FLOOR,NEAR TOWN BUS STAND, KOTTACHERRY,KANHANGAD,KASARAGOD DISTRICT671315.(POLICY NO.76180131170300005280).** **BY ADV SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A No. 1386 of 2020** **2** ## **JUDGMENT** The appellant was injured in a road accident on 16.03.2018, when the motor cycle he was riding, along with his cousin as a pillion, was hit by the offending car driven in a rash and negligent manner. He was taken to a hospital at Kanhangad and then shifted to the “Yenepoya Medical College Hospital”, Mangalore, where he underwent treatment until 10.10.2018. He thereupon filed O.P.(MV)No.517 of 2018 before the Motor Accidents Claims Tribunal, Taliparamba (‘Tribunal’ for short), seeking compensation of an amount of Rs.12 lakhs, asserting that he is an electrician earning Rs.30,000/- per month; but which has been allowed only to a sum of Rs.5,42,585/-. He thus assails the compensation as being inadequate. 2. Smt.M.R.Jayalatha – learned counsel for the appellant, argued that Ext.A5, read along with Ext.A6 – Salary Certificate and the deposition PW1 - who issued the same, would establish beyond doubt that her client is an electrician, drawing salary of Rs.30,000/- per month and hence that the notional income adopted by the Tribunal in his favour as being Rs.9,000/- is woefully insufficient. She then argued that, going by the injuries sustained by her client, the **M.A.C.A No. 1386 of 2020** **3** period reckoned by the Tribunal for the purpose of computing compensation for ‘Loss of Earnings’ is inadequate; while the sums awarded under the various other heads, including ‘Pain and Sufferings’ and ‘Loss of Amenities’, is exiguous. She thus prayed that this appeal be allowed. 3. In response, Sri.Lal K.Joseph – learned Standing Counsel for the Insurance Company, argued that Exts.A5 and A6 Certificates are to the effect that the entity which issued it had several people on their roll and that a total salary mentioned therein was paid to them. He argued that, even PW1 - who is stated to have issued Ext.P6 - did not explain the actual income paid to the appellant and that this is more so because, he did not produce any document on record to show actual receipt. He argued that, therefore, the compensation awarded by the Tribunal is without error; and thus prayed that this appeal be dismissed. 4. I have considered the afore rival submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. **M.A.C.A No. 1386 of 2020** **4** 5. On the question of adequacy of the notional income adopted by the Tribunal, I find favour with the appellant only in part because, even though he claimed that he was earning Rs.30,000/- per month, neither Exts.A5 or A6 establish the said figure in any manner whatsoever. The testimony of PW1 also would not be any avail to him in this regard because, there again, apart from saying that he is paying salary to all his employees to a consolidated sum, no specific inputs regarding the salary of the appellant is discernible. However, these evidence would be sufficient to establish that the appellant was working as an Electrician, as claimed by him. 6. As per **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** the notional income to be taken, even in the case of a coolie, or a person with an unascertainable income, in the year 2018 – when the accident occurred – is Rs.11,500/-. But, in **Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT onlin** _**e, 1012],**_ the Hon’ble Supreme Court has further said that, in the case of a person engaged in a technical avocation, a more robust view has to be taken. I am, therefore, of the firm view that this Court will be justified in adopting the notional income of the appellant to be **M.A.C.A No. 1386 of 2020** **5** Rs.12,500/- per month, which is a mere Rs.1,000/- more than what has been authorized by **Ramachandrappa (Supra)** in the case of a 'Coolie'. 7. That said, the medical evidence on record particularly Ext.A2 – Wound Certificate and Ext.A4 – Discharge Summary, establish that the appellant suffered the following injuries: - _“1. Laceration 4x1 cm over right knee_ _2. Laceration 3x2 cm over right thigh_ _3. Abrasion over right toe_ _4. Lacerated wound 3x1 cm over lateral aspect of left knee_ _5. Abrasion over left wrist_ _6. Tenderness (T) over right thigh_ _7. Compound fracture lateral shaft of right femur and comminuted fracture of both bones of shaft of right leg.”_ 8. The treatment records certainly indicate that the appellant had to go through long periods of treatment, particularly for the union of the fractures of his right femur and both bones of shaft of his right leg. However, it appears that the treatment has been effective and that the petitioner did not suffer major disabilities, since Ext.X1 Certificate issued by the Standing Disability Assessment Board certifies it to be only 1%. 9. Viewed from the afore perspective and taking note of the rather grievous injuries suffered by the appellant, I am **M.A.C.A No. 1386 of 2020** **6** of the view that the period to be reckoned for the purpose of computing ‘Loss of Earnings’ must be a minimum of seven months, adverting to the serious fractures sustained by him and the normal period that would have been necessary for its proper union. 10. As far as ‘Pain and Sufferings’ is concerned, the learned Tribunal has granted Rs.40,000/-, with an additional Rs.20,000/- towards ‘Loss of Amenities’. I deem it necessary to raise both of them marginally, which I propose to be Rs.50,000/- and Rs.30,000/- respectively. Coming to the compensation awarded under the heads ‘Bystander Expenses' and ‘Extra Nourishment’, it is without doubt - as is admitted - that the appellant endured 46 days of treatment as inpatient. The Tribunal has awarded Rs.600/per day towards ‘Bystander Expenses’ and I do not intend to disturb it; though, under the head ‘Extra Nourishment’, only a consolidated amount of Rs.3,000/- has been granted. This is certainly exiguous for 46 days of hospitalization since the per day expenses reckoned is as low as Rs.65/-. I am certain that this must be raised to Rs.200/- per day at the minimum. In the afore circumstances this appeal is allowed in the following manner: **M.A.C.A No. 1386 of 2020** **7** (a) The compensation under the head ‘Permanent Disability’ is revised to Rs.25,500/-, reckoning the notional income of the appellant to be Rs.12,500/- and his percentile of disability to be 1 as certified in Ext.X1. (b) The compensation under the head ‘Loss of Earnings’ is enhanced to Rs.87,500/-, reckoning the notional income of the appellant to be Rs.12,500/- per month and seven months being the period taken for such purpose. (c) The compensation under the head ‘extra Nourishment is enhanced to Rs.9,200/- from Rs.3,000/-, reckoning Rs.200/- being the expenses per day, for 46 days of hospitalization. (d) The compensation under the head ‘Pain and Sufferings’ is enhanced to Rs.50,000/-, from Rs.40,000/- as awarded by the Tribunal. (e) The compensation under the head ‘Loss of Amenities’ is enhanced to Rs.30,000/- from Rs.20,000/-, as awarded by the Tribunal. In all other heads, the compensation awarded by the Tribunal will remain unaltered. **M.A.C.A No. 1386 of 2020** **8** Consequently, the appellant 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 8% (reducing the rate of interest of 9% granted by the Tribunal, in view of the escalation granted by this Court), 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 learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **==> picture [411 x 32] intentionally omitted <==** ## **Sd/-DEVAN RAMACHANDRAN JUDGE** lsn