Arunadaran s/o Pushkaran v. Dr. Vijayakumar and United India Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938 MACA.No. 1492 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 3370/2005 MACT,THRISSUR DATED 30-10-2011 APPELLANT(S)/PETITIONER: ------------------------------ ARUNADHARAN S/O. PUSHKARAN, RESIDING AT KOTTIYATTIL HOUSE, P.O.KANIMANGALAM, THRISSUR DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD SRI.K.A.ANAS RESPONDENT(S):RESPONDENTS ------------------------------------ ## 1. DR. VIJAYAKUMAR - S/O. KARUNAKARAN UNNITHAN, RESIDING AT 'LAKSHMI SADANAM', RAMAVARMAPURAM.P.O., THRISSUR-680631. 2. UNITED INDIA INSURANCE COMPANY LTD. SIMIS COMPLEX, KURUPPAM ROAD, P.O. THRISSUR., PIN-680001. R2 BY ADV. SRI.K.KESAVANKUTTY R2 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1492 OF 2012 ==========================** Dated this the 5[th] day of December, 2016 ## **JUDGMENT** _Ravikumar, J._ The victim of a motor vehicle accident who feels aggrieved by the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV).No.3370 of 2005 preferred this appeal. The claim petition was filed under section 166 of the Motor Vehicles Act seeking a total compensation of `2,05,500/- for the injuries sustained by him in a motor vehicle accident occurred on 16.10.2005. He was a pedestrian and was knocked down by a car bearing Reg.No.KL 9/AC-8769. He was taken to Elite Mission Hospital, Koorkkenchery and he remained there as an inpatient for a period of 16 days. It is in the said circumstances that the claim **M.A.C.A.1492/2012** 2 petition was filed. The Tribunal, as per the impugned award, granted a total compensation of `65,500/- with interest @ 8% from the date of the petition till realisation. The appellant-petitioner seeks for enhancement of the said quantum of compensation. 2.We have heard the learned counsel for the appellant and Sri.Kesavankutty, the learned counsel appearing for the second respondent-insurance company. In view of the absence of any dispute regarding the cause of the accident as negligence from the part of the first respondent, the rider-cum-owner of the car involved in the accident and the liability to indemnify the insured-owner of the offending vehicle, we are of the view that the matter can be disposed of at the admission stage itself. In such circumstances, there is no necessity to issue notice to the first respondent and hence, it is dispensed with. 3.The main grievance of the appellant is that ignoring the fact **M.A.C.A.1492/2012** 3 that the accident occurred in the year 2005 and that the appellant was then aged 48 years, the Tribunal fixed the monthly income notionally at `3,000/-, which according to him is too meagre. That apart, it is contended that the the Tribunal granted only meagre amounts under the heads bystander's expenses, pain and suffering, damage to clothes etc. 4.Per contra, the learned counsel for the second respondentinsurance company contended that taking note of the injuries sustained in the accident as is evident from Exts.A4 and A5, the compensation granted by the Tribunal is a just compensation and therefore, no appellate interference is called for. 5.Having heard the learned counsel on both sides and perusing the impugned award, we are of the view that the appellant is justified in seeking for enhancement of compensation under certain heads. As noticed hereinbefore, the accident occurred on 16.10.2005 and the **M.A.C.A.1492/2012** 4 appellant was then aged only 48 years. The appellant claimed that he was a mechanic to sewing machine and was earning `5,000/- per month. However, the appellant failed to adduce any evidence to establish such averments regarding his occupation and income. In such circumstances, we do not find any reason to hold that the Tribunal went wrong in fixing the monthly income notionally for calculation purpose. But at the same time, the question is whether the fixation of `3,000/- as monthly income for calculation purpose invites interference. Taking note of the fact that the appellant had failed to adduce evidence to establish his occupation and income and that the accident occurred in the year 2005, we are of the view that it is only proper to look into the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** as guidance in the matter of fixation of monthly income. Taking note of the fact that the accident occurred in the year 2005 and the appellant was then aged only 48 years, we are inclined to believe the assertion of the appellant **M.A.C.A.1492/2012** 5 regarding his income viz., `5,000/-. Accordingly, the monthly income of the appellant is fixed as `5,000/-. The Tribunal took the period of loss of earnings as three months and granted a sum of `9,000/- under the head loss of earnings. In view of the fixation of monthly income as ` 5,000/-, for the same period, the appellant would be entitled to get an additional compensation of `6,000/-. It is granted. Towards loss of amenities, the Tribunal granted `10,000/- as against a claim of `20,000/-. Exts.A4 and A5 would reveal that the appellant sustained the following injuries:- Left medial temporal/Thalamic/posterior capsular bleed, right 3[rd] nerve injury, laceration on eyebrow, costo chondral contusion and extensive abraded contusion on body. 6.As noticed hereinbefore, the appellant-petitioner remained as inpatient for a period of 16 days. Taking note of the aforesaid aspects, we are of the view that the appellant is entitled to get compensation for loss of amenities as claimed i.e., `20,000/-. In that view of the matter, the appellant is granted `10,000/- additionally under the said **M.A.C.A.1492/2012** 6 head. Towards bystanders expenses, the Tribunal granted `2,000/-. Taking note of the fact that the accident occurred in the year 2005, we are of the view that the Tribunal ought to have granted `200/- per day towards bystanders expenses. In such circumstances, `1,000/- more is granted under the said head. The Tribunal granted only `500/towards damage to clothes. Evidently, the dresses worn by the appellant at the time of the accident must have been damaged. In such circumstances, we are inclined to grant `500/- more under the said head. Towards pain and suffering, taking note of the injuries, it is evident that the appellant must have experienced excruciating pain. In such circumstances, we are inclined to grant `5,000/- more under the said head. In the light of the discussions as above, the appellant will be entitled for an additional compensation of `22,500/-. It is awarded. The additional compensation will carry interest 8% from the date of the petition till realisation. The second respondent shall deposit the **M.A.C.A.1492/2012** 7 said amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. The parties shall bear their respective costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** //true copy// P.A.to Judge **M.A.C.A.1492/2012** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.1492/2012** 9 **JUDGMENT September, 2010**