## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 MACA NO. 2084 OF 2014**
**AGAINST THE ORDER/JUDGMENTOPMV 442/2008 OF ADDITIONAL DISTRICT COURT & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,ALAPPUZHA.**
## **APPELLANT:**
**BHASURAN.P.A AGED 64 YEARS S/O.AYYANKUNJU, PULLAPARAMBIL HOUSE, NORTH ARYAD P.O, MANNANCHERRY PANCHAYATH WARD-14, ALAPPUZHA DISTRICT**
**BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA**
## **RESPONDENTS:**
**1 JOY.M.N S/O.NICHOLAS, MURINGATHERY HOUSE, VARADIYAM AVANOOR PANCHAYATH WARD XI, AVANOOR P.O, TRISSUR DISTRICT PIN-680541 2 BAJAJ ALLIANZ INSURANCE CO.LTD. 3RD FLOOR, KOCHIN-682 017 REPRESENTED BY ITS BRANCH MANAGER. BY ADV SRI.THOMAS M.JACOB**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated this the 23[rd] day of February, 2023**
The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Alappuzha (for short ‘the Tribunal’) on 12.11.2013 in O.P.V.No.442/08. The appellant is the petitioner in the above Original Petition.
2. The parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 and 2 in accordance with their status in the Original Petition.
3. His grievance in the appeal was that just and reasonable compensation was not awarded by the Tribunal in his favour. On 04.01.2007 at about 6 p.m while he was pedalling his bicycle from west to east through Kalavoor-Mannancherry road, a Mini Lorry bearing Reg.No.KL-08/AE-9329 proceeding from the opposite direction, hit on his bicycle and thereby his right leg got crushed between the lorry and the hand rail of the concrete fence of the bridge. Following the crush injuries sustained, his right leg was amputated above the level of knee. Claiming a sum of
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Rs.12,00,000/- (Rupees Twelve Lakh only) as compensation, the Original Petition was moved.
4. The driver cum owner and the insurer of the Mini Lorry were arrayed as respondent Nos.1 and 2 in the Original Petition. Though notice was served on the 1[st] respondent, he did not turn up to contest the Original Petition and thus declared _ex parte_ by the Tribunal.
5. The 2[nd] respondent filed written statement admitting insurance coverage for the Mini Lorry bearing Registration No.KL08/AE-9329 as on date of accident under the policy issued by them. It was contended that, the motor accident was occurred due to negligence of the petitioner himself and not due to negligence of the 1[st] respondent. Compensation claimed was also disputed for want of any basis. The age, occupation and monthly income of the injured were also disputed.
6. Exts. A1 to A17 were marked in evidence on the side of the petitioner and Ext.C1 as court exhibit. The 2[nd] respondent did not adduce any evidence but obtained permission from the Tribunal to contest the Original Petition by availing all statutory defences.
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6. On the basis of the evidence adduced, the Tribunal arrived at a sum of Rs.5,72,205/- as the compensation payable to the petitioner. Interest @ 7.5% per annum for the said amount from the date of the Original Petition till the date of realization with proportionate cost was also awarded.
7. It is contended by Smt.V.Shylaja, the learned counsel for the petitioner that, Ext.A13 was marked in evidence by the petitioner to establish his claims of occupation and monthly income. But, the Tribunal discarded it and fixed Rs.4,000/- as the monthly income notionally. It is contended by the learned counsel that a refixation of the monthly income with reference to the year in which the motor accident was occurred is warranted. The learned counsel further contended that, though the petitioner was residing at Mannancherry in Alappuzha District and had undergone treatment at Specialist Hospital, Ernakulam, the Tribunal has awarded only Rs.2,000/- as compensation towards transportation expenses. According to her, Rs.3,300/- stands awarded by the Tribunal as compensation towards bystander expenses, Rs.250/- towards damages to clothing, Rs.2,000/- towards extra nourishment, Rs.25,000/- towards pain and suffering and Rs.20,000/- towards
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loss of amenities and inconveniences were also inadequate and interference is required to make it just and reasonable.
8. According to the 2[nd] respondent, Ext.C1 was issued in favour of the petitioner by the Medical Board assessing his disability as 51% and the Tribunal has considered it as such for calculation of compensation. According to him, compensation stands awarded under other heads being reasonable interference is uncalled for.
9. Though Ext.A13 was marked in evidence by the petitioner, it was not proved by examining it’s signatory. Rs.5,450/- is the sum certified in Ext.A13 as the monthly income of the petitioner. That appears to this Court a reasonable sum to be fixed as the monthly income even on a notional basis, the year of consideration being 2007. The percentage of disability certified in Ext.C1 and the multiplier as directed in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** were taken by the Tribunal. The petitioner’s right leg was amputated following the crush injury sustained by him. The amputation was above knee level. It will take a long time for the petitioner to accept the reality and to get accustomed with the circumstances. He may not be in a position to do any work at least for one year. Therefore, this Court is
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inclined to calculate compensation for loss of earning by considering one year with the monthly income stands re-fixed as Rs.5,450/-. Thus, Rs.65,400/- (Rs.5,450/- x 12) is arrived at. Rs.24,000/stands awarded by the Tribunal when adjusted against, the petitioner will get Rs.41,400/- as additional compensation.
10. As compensation towards transportation expenses, in consideration of the treatment of the petitioner at Specialists Hospital, Ernakulam, this Court modifies the compensation to Rs.8,000/-. Rs.2,000/- stands awarded by the Tribunal when adjusted against, the petitioner will get Rs.6,000/- as additional compensation. As compensation towards bystander Expenses, Rs.3,300/- stands awarded by the Tribunal being low, this Court enhances it to Rs.10,000/-, and therefore, the petitioner will get Rs.6,700/- as additional compensation. As compensation towards damages to clothing, Rs.750/- more is awarded to make it to Rs.1,000/-.
11. The compensation towards extra nourishment is enhanced to Rs.8,000/- and therefore the petitioner will get Rs.6,000/- as additional compensation. This Court enhances the compensation towards pain and suffering to Rs.70,000/-, and therefore the
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petitioner will get Rs.45,000/- as additional compensation. This Court also enhances the compensation towards loss of amenities and inconveniences to Rs.50,000/- and therefore the petitioner will get Rs.30,000/- as additional compensation.
12. The future prospects of the petitioner would undoubtedly be lost on account of the amputation of his leg. Therefore, this Court finds it reasonable to add 20% to the monthly income re-fixed now and thus, Rs.6,540/- (Rs.5,450/- + 20% Rs.5,450/-) is arrived at. Compensation for disability when re-assessed with the above modified factors, Rs.3,60,223/- (Rs.6,540/- x 12 x 9 x 51/100) is arrived at. Rs.2,20,320/-, the sum stands awarded by the Tribunal when adjusted against, the petitioner will get Rs.1,39,903/- as additional compensation.
13. In the above manner of reassessment of compensation, the petitioner will get Rs.2,75,753/- (Rupees two lakhs seventy five thousand seven hundred and fifty three only) as additional compensation and it will carry interest at the rate of 7.5% per annum from the date of filing of Original Petition till the date of realization excluding 102 days of delay occurred in filing the appeal
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on hand. The 2[nd] respondent will pay the additional compensation fixed as above with interest fixed as above within a period of two months from the date of receipt of a certified copy of this judgment, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019.
M.A.C.A. stands allowed accordingly.
**Sd/-**
**MARY JOSEPH**
**JUDGE**
saap
