Asokan V.S. v. United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** **MACA NO. 1858 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1136/2002 OF ADDITIONAL MOTOR** ## **ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER:** ASOKAN V.S., AGED 47 YEARS, S/O.SAHADEVAN, POONJIKKATTU CHIRAYIL HOUSE, WARD NO.1, MANNANCHERRY PANCHAYATH,, EAST OF VALAVANAD, PONNODU P.O., ALAPPUZHA. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ## **RESPONDENTS/RESPONDENTS:** 1 MOHAMMEDKUTTY, AGE NOT KNOWN MALIYEKALAKATH HOUSE, TANUR P.O. (DELETED) 2 JAYARAJ.T., AGE NOT KNOWN, S/O.THANKAPPAN, KIZHAKKE THAYYIL HOUSE,, NORTH OF CHRISTRAJ CHURCH, KATTOOR,, ALAPPUZHA.(DELETED) * R1 AND R2 ARE DELETED FROM THE PARTY ARRAY, AT THE RISK OF THE APPELLANT AS PER ORDER DATED 23.3.2015 IN I.A.NO.1026/2015 3 UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, ALAPPUZHA. BY ADV P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1858 OF 2009 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1136 of 2002 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents before the Tribunal. 2. Pursuant to the direction of this Court on 23.3.2015 in I.A.No.1026 of 2015 the respondents 1 and 2 were deleted from the party array. 3. The facts in brief, relevant for the determination of the appeal, are: on 2.2.2002 while the appellant was riding a motor cycle bearing Reg. No.KL4-G 227 through Alappuzha – Ernakulam National Highway, when he reached the place named Kommadi bye-pass, a Tempo Trax jeep bearing Reg.No.KL-8/C3780, (offending vehicle) driven by the 2[nd] respondent at high speed hit the motor cycle of the appellant. The ## **MACA NO. 1858 OF 2009 3** appellant fell down and sustained serious injuries including a head injury and fracture on his skull. The accident occurred solely due to the negligence on the part of the 2[nd] respondent. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a lottery ticket seller and earning a monthly income of Rs.6,500/-. The appellant, claimed a total compensation of Rs.3,37,000/- from the respondents. 4. The respondents 1 and 2 did not contest the proceedings. 5. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance coverage. However, it was contended that the accident occurred on account of the negligence of the appellant. **MACA NO. 1858 OF 2009 4** 6. The appellant produced and marked Exts.A1 to A21 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after evaluating the pleadings and materials on record, by the impugned award allowed the claim petition in part, by permitting the appellant to realize an amount of Rs.37,500/- from the respondents with interest @ 6% per annum from the date of petition till the date of realization. The 3[rd] respondent was directed to pay the compensation amount. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard, the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3rd respondent/ Insurance Company. 10. The sole question that emerges for **MACA NO. 1858 OF 2009 5** consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? 11. Ext.A5 charge sheet filed by the Police proves that the accident occurred solely on account of the negligence of the 2[nd] respondent who drew the offending vehicle in a negligent manner. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the offending vehicle. Therefore, the 3[rd] respondent has to indemnify the liability of the 1[st] respondent on account of the accident that occurred by the use of the offending vehicle. 12. The appellant had claimed that he was a lottery ticket seller and earning a monthly income of Rs.6,500/-. Nevertheless, the Tribunal fixed the notional income of the appellant at Rs.1,500/-. ## **MACA NO. 1858 OF 2009 6** 13. In _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236), the Hon’ble Supreme Court**_ has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/- per month. ## **Notional Income** 14. Following the ratio in the aforecited decision and considering the fact that the accident occurred in the year 2002, I refix the notional income of the appellant at Rs.3,500/- per month. ## **Loss of Earnings** 15. As per Ext.A6 Wound Certificate and Ext.A7 discharge card it is proved that the appellant suffered depressed fracture of the right frontal bone which was managed conservatively. There was also a fracture on his nasal bone. The CT Scan revealed that there was a **MACA NO. 1858 OF 2009 7** fracture to the right frontal bone and fracture of the maxillary and ethimoida sinus and right temporal bone. The Tribunal based on the above said injuries held that the appellant was indisposed for a period of two months, which finding I confirm. Taking into account the severe injuries that the appellant had sustained, particularly the permanent disability of 12% he suffered as per Ext.A13 certificate and that he lost four teeth, I hold that the appellant was indisposed for a period of five months as found by the Tribunal. ## **Loss of earnings** 16. In light of the above finding that the appellant was incapacitated for five months and his notional being refixed at Rs.3,500/-, I hold that the appellant is entitled for loss of earnings at Rs.17,500/-, i.e., an enhancement of Rs.14,500/-. **MACA NO. 1858 OF 2009 8** ## **Bystander Expenses** 17. It is on record that the appellant was treated as an inpatient for a period of 16 days. The Tribunal only awarded an amount of Rs.500/-, towards bystander expenses. Taking into consideration that the accident occurred in the year 2002 and that the appellant was treated as an inpatient for a period of 16 days, I hold that Rs.200/- per day has to be awarded as bystander expenses for a period of 16 days. Accordingly, I enhance the compensation towards bystander expenses at Rs.3,200/-, i.e., an enhancement of Rs.2,700/-. ## **Future Treatment** 18. The appellant had claimed an amount of Rs.20,000/- towards future treatment based on Ext.A9 prescription, wherein the Dentist has certified that the appellant needed an amount Rs.20,000/- in order to **MACA NO. 1858 OF 2009 9** carryout the Orthodontic procedure that arose due to the accident. However, the tribunal only awarded an amount of Rs.2,000/-, which according to me is on the lower side. Taking note of Ext.A9 certificate, I enhance the compensation for future treatment at Rs.20,000/- as certified in Ext.A9, i.e., an enhancement by a further amount of Rs.18,000/-. ## **Compensation for pain and sufferings** 19. The appellant had claimed an amount of Rs.35,000/- towards pain and sufferings. The Tribunal only awarded an amount of Rs.14,000/-, which according to me is on the lower side. Taking note of the severe injuries that the appellant had suffered and that he was treated as an inpatient for a period of 16 days and has also suffered a permanent disability at 12% , I hold that the appellant is entitled for a further amount of ## **MACA NO. 1858 OF 2009 10** Rs.6,000/-under the aforesaid head. 20. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 21. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforecited decisions, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above, i.e an enhancement by a further amount of Rs.40,900/-, namely, Rs.14,200/- towards loss of earnings, Rs.2,700/towards bystander expenses, Rs.18,000/- towards future treatment and Rs.6,000/- towards compensation for pain and sufferings. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **MACA NO. 1858 OF 2009 11** Rs.40,900/- with interest at the rate of Rs.6% per annum from the date of petition till the date of deposit, after deducting the period of 270 days, i.e., the period of delay in filing the appeal and ordered by this Court on 30.3.2021 in C.M.Appln. No.2138 of 2009, and proportionate costs. The 3[rd] respondent Insurance Company shall deposit the enhanced compensation with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. sd/- **C.S.DIAS, JUDGE** pm