# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944
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MACA NO. 1807 OF 2012
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AGAINST THE AWARD DATED 08.03.2012 IN O.P(M.V) NO.450/2009 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA
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## **`APPELLANT/PETITIONER:`**
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BINU P.J. @ VINU, AGED 36 YEARS,
S/O.P.X.JOSEPH, PUTHENVEEDU HOUSE,
BEHIND ASHOKS HARDWARE, S.CHITTOOR, NOW RESIDING AT
KALLUVETTAMPARAMBIL, T.H.NAGAR, KALPETTA NORTH P.O.,
VYTHIRI TALUK.
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BY ADV SRI.ABRAHAM MATHEW (VETTOOR)
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## **`RESPONDENTS/RESPONDENTS:`**
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1RAZACK.C.H, AGED 45 YEARS,
S/O.AHAMED.B, C.H.HOUSE, THAYATHERU, KANNUR DISTRICT.
(DRIVER OF THE AUTORICKSHAW NO.KL-13/E 8635),
D.L.NO.NOT KNOWN, PIN 670001.
2NISHAD D.P., AGE AND FATHER’S NAME NOT KNOWN,
PAYYANADAN HOUSE, CHOVVA P.O., KANNUR DISTRICT,
(OWNER OF THE AUTORICKSHAW NO.KL-13/E 8635),
PIN 670006.
3UNITED INDIA INSURANCE COMPANY LTD
KALPETTA, LOCAL BRANCH OF THE INSURER KANNUR BRANCH,
POLICY NO.100805/31/08/02/00011827, PIN 673121.
BY ADV
R3 BY SMT.P.A.REZIYA
SRI.MANOJ KUMAR
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 22.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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M.A.C.A.No.1807 of 2012
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## **`JUDGMENT`**
## **`Dated this the 22[nd ] day of September, 2022`**
This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Kalpetta (for short ‘the Tribunal’) on 08.03.2012 in O.P(M.V)No.450/2009. For the sake of convenience the parties to this appeal will hereinafter be referred to as the petitioner and respondent Nos.1, 2 and 3 in accordance with their status in the Original Petition.
2. The appellant is the victim of a motor accident. His allegation was that he met with a motor accident on 14.08.2009 at 2.20 pm, when an autorickshaw bearing Registration No.KL 13E/8635 in which he was travelling through public road from AKG Memorial Hospital to Kannur Railway Station, went off the road and capsized. He sustained injuries and was treated for that. The accident was allegedly occurred due to the rash and negligent driving of the autorickshaw by it’s driver. Seeking for a sum of Rs.5,00,000/- as compensation, from respondents 1 to 3 jointly and severally, the above
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Original Petition was preferred before the Tribunal. The driver and the owner of the autorickshaw did not turn up to contest the Original Petition evenafter service of notice on each of them and therefore were declared ex parte.
3. The 3[rd] respondent insurer had filed a written statement denying negligence on the part of the driver of the autorickshaw. The vehicle admittedly was insured with them and the date of accident is well covered by the policy issued. The sums claimed as compensation are disputed in view of its exorbitant nature. Petitioner marked Exts.A1 to A6, A7 series, A8, A9 and C1 in evidence. Ext.A8 was marked subject to proof. No evidence was adduced by the insurer.
4. The Tribunal has appreciated the documentary evidence adduced by the claimant and found negligence on the part of the driver of the autorickshaw arrayed in the Original Petition as the 1[st] respondent and also arrived at Rs.1,51,100/as the compensation payable. The Tribunal directed the 3[rd] respondent to deposit the said amount with interest at the rate of 7.5% per annum from the date of filing of the Original
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Petition till the date of realisation of the amount. The insurer was directed to deposit the amount within 30 days from the date of the award. The quantum of compensation stands awarded is challenged in the appeal on hand for it’s inadequacy and unreasonableness.
5. Sri.Abraham Mathew, the learned counsel for the appellant has contended that though the Tribunal had awarded compensation under various heads, the amounts stand granted is too low. According to him the claimant was allegedly working as a Territory Manager in Glenmark Pharmaceuticals Ltd., Half Kerala Ernakulam to Kasargod and was getting a salary of Rs.4,20,048/- per annum. He has also produced a certificate reporting details of salary, issued from the above company and got marked it in evidence as Ext.A8. But, discarding that, the Tribunal had fixed his monthly income notionally as Rs.4,000/-. According to the learned counsel the fixation of monthly income as Rs.4,000/- is too low and highly unjust. According to him, the calculation of compensation for loss of earning and disability turns on the wrong side due to
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fixation of monthly income at such a lower level. The learned counsel points out that the petitioner had sustained comminuted fracture on left humerus and had undergone interlocking nailing. According to him, the Tribunal utterly failed to assess reasonable compensation each under the heads bystander expenses, extra nourishment, pain and sufferings and loss of amenities and enjoyments in life. According to him the Medical Board had assessed 15% as the permanent disability for the petitioner and issued Ext.C1. The accident was occurred at Kannur and after availing initial management at some local hospital he was shifted to Ernakulam Medical Centre for treatment. Under the head transportation expenses and damages to clothing, Rs.3,000/- and Rs.500/- stands awarded. The Tribunal is found to have not applied its mind while assessing the compensation.
6. It is noticed that the monthly income for the purpose of assessment of compensation was fixed by the Tribunal as Rs.4,000/-. True that the claimant had pleaded in the Original Petition that he was working as Territory Manager in a company
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namely Glenmark Pharmaceuticals Ltd and a document reporting the particulars of his salary is marked in evidence as Ext.A8 and on account of the objection raised, it was marked subject to proof. The petitioner did not adduce any further evidence in that regard. For the reason, the Tribunal was constrained to discard Ext.A8. However, Rs.4,000/- fixed notionally as the monthly income in the view of this Court is undoubtedly low.
7. Relying on the fixation of the monthly income of a coolie worker in the year, 2004, in _**Ramachandrappa v. Manger, Royal Sundaram Alliance Insurance Company**_
_**Limited**_ [(2011) 13 SCC 236], this Court fixes the monthly income in the case on hand as Rs.7,000/-. The Tribunal had taken only three months’ period for calculation of compensation for loss of earnings. It is noticed from the wound certificate and the discharge summary marked in evidence respectively as Ext.A5 and Ext.A6 that the petitioner had sustained comminuted fracture of left humerus and was treated with interlocking nailing. In the backdrop of the above discussion,
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this Court finds it reasonable to take six months’ period for assessment of compensation for loss of earnings. This Court is inclined to award Rs.42,000/- (7000 x 6) as compensation for loss of earning. Rs.12,000/- being the amount stands awarded by the Tribunal under the head, the petitioner will get Rs.30,000/- as additional compensation.
8. The compensation stands awarded for bystander expenses and extra nourishment also require re-consideration for it’s inadequacy. This Court finds it reasonable to award Rs.4,000/- each under those heads. Rs.1,000/- being the sum stands awarded by the Tribunal under each heads, the petitioner will get Rs.3,000/- under each of the above heads as additional compensation.
9. Under the head transportation expenses, the amount stands awarded by the Tribunal being Rs.3,000/-, this Court is inclined to enhance it to Rs.5,000/-, the sum claimed itself so that the petitioner will get Rs.2,000/- as compensation additionally. Under the head damages to clothing the awarded sum being Rs.500/-, this Court is inclined to grant Rs.500/-
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more. Towards pain and suffering, the amount stands awarded being Rs.15,000/-, this Court is inclined to award Rs.10,000/more. Towards loss of amenities and enjoyments in life, the sum stands awarded by the Tribunal being Rs.2,000/-, this Court is inclined to award Rs.10,000/- and therefore the petitioner will get Rs.8,000/- additionally.
10. The Tribunal had taken 15% disability assessed by the Medical Board and 16 as the multiplier. When compensation is reassessed based on the monthly income modified as Rs.7,000/- and the other factors maintained, the petitioner will get Rs.2,01,600/-. Rs.1,15,200/- being the sum stands awarded as compensation by the Tribunal, the petitioner will get Rs.86,400/-, additionally.
11. In the above reassessment, Rs.1,42,900/- (Rupees One Lakh Forty two thousand and Nine Hundred only) will be the additional compensation payable to the petitioner. The said amount would carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent shall deposit the amount stands
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originally awarded, (if not paid) and the amount now arrived at as additional compensation within a period of one month from the date of receipt of a certified copy of this judgment.
## M.A.C.A stands allowed accordingly.
Sd/- **MARY JOSEPH JUDGE**
NAB
