BAVIN O.P S/O BALAN v. ASWIN S/O RAMACHANDRAN; CHARLES CARLTON S/O TONY CARLTON; NEW INDIA ASSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 3[RD] DAY OF JANUARY 2022 / 13TH POUSHA, 1943** ## **MACA NO. 216 OF 2012** **AGAINST THE AWARD DATED 23.09.2011 IN OPMV 1570/2007 OF IST** ## **ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE APPELLANT/PETITIONER:** BAVIN O.P S/O.BALAN, RESIDING AT OTTATHENGIL PURAYIL HOUSE, P.O.ELATHOOR, CHETTIKULAM, KOZHIKODE. BY ADVS. SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA ## **RESPONDENTS/RESPONDENTS:** 1 ASWIN S/O.RAMACHANDRAN, RESIDING AT 20/1532, SHYAMLAL HOUSE, P.O.KALLAI, KOZHIKODE. 2 CHARLES CARLTON S/O.TONY CARLTON RESIDING AT CRESENT MARVIEW APARTMENTS, ROOM NO.33, NAGARAM AMSOM, DESOM, KOZHIKODE. 3 NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G.ROAD, KOZHIKODE. BY ADVS. A.C.DEVY K.A.MOHAMED HARIS REKHA ARAVIND SANTHARAM.P THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.216-2012 ## **Dated this the 3[rd] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(M.V.) No.1570/2007 on the file of the Additional Motor Accidents Claims Tribunal-I, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 19.11.2006. It was his case that, on the aforesaid date, while he was riding his motorcycle KL 11/V 3386 from Kozhikode to Elathoor, another motorcycle bearing registration No.KL 11 Y/2653 (offending motorcycle), driven by the second respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained 3 MACA No.216-2012 serious injuries, including a depressed fracture right frontal bone and fracture of both bones of right leg – middle 1/3 with compartment syndrome. He had to undergo an emergency frontal craniotomy and also fasciotomy right leg interlocking nailing of the right tibia. He was treated as an inpatient for a period of 17 days. The offending motorcycle was owned by the first respondent and insured with the third respondent. The appellant was a student cum contractor and earning a monthly income of Rs.5000/-. Hence the appellant claimed a total compensation of Rs.4,18,000/- from the respondents, which claim was limited to Rs.4,00,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set exparte. 4. The third respondent had filed a written statement admitting that the offending motorcycle had a valid insurance policy. Nevertheless, it was contended that the second respondent - the rider of the offending motorcycle did not hold a valid driving license. Hence, 4 MACA No.216-2012 there was violation of policy conditions and the third respondent may be exonerated of its liability. 5. The appellant produced and marked Exhibits A1 to A8 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,44,910/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri. AVM Salahuddeen, the learned counsel appearing for the appellant/petitioner and Sri. A.C. Devy, the learned counsel appearing for the third respondent/insurer. 9. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal just and reasonable. 5 MACA No.216-2012 ## **Negligence and liability** 10. Exhibit A1 FIR registered by the City Traffic Police, Kozhikode in Crime No.1870/2006, proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the offending motorcycle. The respondents have not let in any evidence to disprove the assertions in the claim petition or Exhibit A1 FIR. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was aged 19 years and was a student cum contractor by profession, and that he was earning a monthly income of Rs.5000/-. Nevertheless, the Tribunal, for the want of material, 6 ## MACA No.216-2012 fixed the notional monthly income of the appellant at Rs.1250/-. ## 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the appellant at Rs.5000/- as claimed in the claim petition. ## **Loss of earnings** 14. The appellant had claimed that he was indisposed for a period of eight months. However, the tribunal did not award the appellant any amount towards loss of income. Taking into account Exhibit C1 disability certificate, Exhibit A2 wound certificate and 7 MACA No.216-2012 Exhibit A4 discharge summary, it is proved that the appellant had sustained serious injuries and was treated as an inpatient for a period of 17 days. In view of the serious injuries, as reflected in Exhibit C1, I hold that the appellant was indisposed for a period of six months. Therefore, I award the appellant an amount of Rs.30,000/- towards ‘loss of income’. ## **Loss due to disability** 15. The appellant was examined by a duly constituted Medical Board, who by Exhibit C1 has certified that the appellant has a permanent disability of 29%. On going through the said certificate, I am satisfied and convinced that the appellant has a permanent disability of 29%, which I confirm. Nonetheless, in the light of the re-fixation of the notional monthly income of the appellant at Rs.5000/and the fact that he was 19 years at the time of the accident and the relevant multiplier being ‘18’, I modify and enhance the compensation for ‘loss due to 8 MACA No.216-2012 disability’ to Rs.3,13,200(Rs.5000x18x29x12/100), instead of Rs.69,600/- awarded by the Tribunal. ## **- By stander expenses** 16. The appellant was treated as an inpatient for a period of 17 days. The Tribunal has only awarded an amount of Rs.2550/- under the above head. Considering the fact that the accident occurred in the year 2006, I award the appellant an amount of Rs.300/- per day for a period of 17 days, which works out to Rs.5100/-. ## **Pain and sufferings and loss of amenities** 17. In view of the fact that the appellant was treated as an inpatient for a period of 17 days; that he was indisposed for a period of six months and that he has suffered a permanent disability of 29%, I award him a further amount of Rs.10,000/- under the head ‘pain and sufferings ‘and a further amount of Rs.25,000/under the head ‘loss of amenities’. 18. With respect to the compensation awarded 9 MACA No.216-2012 under the heads ‘Transportation expenses’, ‘Extra Nourishment’, ‘Damage to clothing’ and ‘Medical expenses’, I find that the Tribunal has awarded reasonable and just compensation. 19. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation expenses|2000|2000| |2|Extra nourishment|3000|3000| |3|Damage to clothing|500|500| |4|Medial expenses|42260|42260| |5|By stander expenses|2550|5100| |6|Pain and sufering|20000|30000| |7|Loss of amenities|5000|30000| |8|Loss due to disability|69600|313200| ||Total|144910|426060| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.2,81,150/- 10 MACA No.216-2012 with interest at the rate of 7.5% per annum from the date of petition till the date of deposit with a cost of Rs.15,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the amount to the appellant/petitioner in accordance with law. SD/- **C.S.DIAS, JUDGE** rmm/03.01.2022