C.K. NAZEER v. VIJAYAN, VIMAL VIJAYAN and UNITED INDIA INSURANCE CO. LTD.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939** **MACA.No. 1481 of 2014** ## **AGAINST THE AWARD DATED 13-12-2013 IN OP(MV) NO.387/2010 of MACT VATAKARA** ## **APPELLANT/PETITIONER:** **---------------------** **C.K.NAZEER, AGED 40 YEARS, S/O.AMMED, CHOTHAKOLLIYIL HOUSE, CHATANKOTTU NADA P.O., KAVILUMPARA, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENTS/RESPONDENTS:** **------------------------** ## **1. VIJAYAN,** **S/O.THANKAPPAN, AGE NOT KNOWN, CHOLATHOTTATHIL HOUSE, POOTHADY, SULTHAN BATHERY, WAYANAD DISTRICT PIN - 670 645.** ## **2. VIMAL VIJAYAN,** **S/O.VIJAYAN, AGED 27 YEARS, VATTAKALATHIL HOUSE, CHAPPANTHOTTAM, KOZHIKODE DISTRICT, PIN-673 001.** **3. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, RAVTHER BUILDING, NEAR PINANGODE ROAD, JUNCTION, MAIN ROAD, KALPETTA. PIN - 673 121.** **R3 BY ADV. SMT.P.K.SANTHAMMA BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = M.A.C.A.No.1481 of 2014(F)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 14[th] day of February, 2018_ ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV) No.387 of 2010 on the files of the Motor Accidents Claims Tribunal, _(hereinafter referred to as 'the Tribunal')_ Vatakara and the above petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the bodily injuries suffered by him in a motor vehicle accident. 2. According to him, the accident arose out of the use of the vehicle owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent and the accident was caused by the rash and negligent driving of the offending jeep by the 2[nd] respondent. He claimed an amount of `3,00,000/-, as compensation for the bodily injuries suffered by him. ## **M.A.C.A.No. 14181 of 2014(F)** ## **-: 2 :-** 3. The 3[rd] respondent opposed the said application disputing the quantum of compensation claimed under various heads of claim and the cause of accident. After considering the evidence adduced by both parties, the Tribunal passed the impugned award granting `1,21,865/-, as compensation to the appellant. The adequacy and correctness of the quantum of compensation determined under various heads of claim are challenged in this appeal. 4. Heard the learned counsel for the appellant and the learned counsel for the respondents. 5. It is contended that the quantum of compensation granted under the heads 'loss of earnings', 'pain and sufferings' and 'loss of amenities' is inadequate and disproportionate with the grievous nature of the injuries and expenses incurred for the treatment. So also, the monthly **M.A.C.A.No. 14181 of 2014(F)** ## **-: 3 :-** income determined by the Tribunal is very low. 6. Per contra, the learned standing counsel for the respondent Insurance Company advanced arguments to justify the quantum of compensation determined under the aforesaid heads of claim. It is contended that the quantum of compensation determined under the aforesaid heads is just and fair. In view of the arguments advanced at the Bar, the point to be considered is, is there any inadequacy in the determination of quantum of compensation under the heads of claim referred above? 7. According to the appellant/petitioner, he was a fish vendor at the time of accident and he was getting `12,000/- per month from his occupation. But, no evidence was adduced to prove the said claim. More over, he has not chosen to adduce at **M.A.C.A.No. 14181 of 2014(F)** ## **-: 4 :-** least oral evidence for the same. In the absence of any evidence, either documentary or oral, to prove the monthly income claimed by the appellant/ petitioner, the Tribunal is justified in taking notional income. But, this Court is of the view that the notional income determined at `4,000/- per month is inadequate, in view of the decision of the Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236]. In the above decision, the Supreme Court has held that in the case of an accident occurred in the year 2004, `3,500/- to `4,500/- can be taken as notional income. In the instant case, the accident has occurred in the year 2009. Having regard to the proportionate increase in the income for six years, the monthly income of the appellant will stand enhanced and modified to `5,500/- per month. That ## **M.A.C.A.No. 14181 of 2014(F)** ## **-: 5 :-** apart, this Court finds that the Tribunal has granted compensation for 'loss of earnings' for three months only. In view of Ext.A2 accident cum wound certificate and Ext.A6 series of medical bills, this Court finds that three months period is not sufficient and he is entitled to get compensation for at least five months. Consequently, he is entitled to get `27,500/- (5,500 x 5) for 'loss of earnings'. 8. Coming to 'pain and sufferings', `10,000/is seen given to the appellant. Ext.A2 wound certificate and Ext.A4 reference card would show that he was undergoing treatment for 23 days as an inpatient in the medical college hospital. Having regard to the prolonged treatment as an inpatient, the compensation for 'pain and sufferings' would stand enhanced and modified to `15,000/- from **M.A.C.A.No. 14181 of 2014(F)** ## **-: 6 :-** `10,000/-. 9. It is contended that the compensation granted for 'loss of amenities' is too low. Going by the impugned award, it is seen that the Tribunal has granted `5,000/- for loss of predominantly happy life and another `5,000/- for loss of amenities of enjoyment of life. This Court is of the view that the amount granted under the above said heads of claim would come under 'loss of amenities'. Therefore, a consolidated amount of `15,000/- is given to the appellant for 'loss of amenities'. Thus, the appellant is entitled to get an additional compensation of `25,500/-. Thus, the total compensation payable to the appellant is `1,47,365 (1,21,865 + 25,500). It is needless to say the said amount would carry interest as stipulated by the Tribunal. All other findings of the Tribunal will **M.A.C.A.No. 14181 of 2014(F)** **-: 7 :-** stand undisturbed and operative. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL** //True copy// P.A. To Judge **JUDGE** DST