D. N. Vinod v. NIZAR and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944 ``` ``` MACA NO. 3314 OF 2014 ``` ``` AGAINST THE AWARD DATED 25.04.2014 IN O.P(M.V) NO.1899/2010 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` D.N.VINOD AGED 34 YEARS S/O.NARAYANAN, DURGAPARAMBIL HOUSE, NEAR HIGH SCHOOL, CHANDIROOR P.O., CHERTHALA, ERNAKULAM. BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1NIZAR, S/O.UMMER, DOOR NO.12/412, PANAYAPPILLY, COCHIN-2. 2P.K.RAJENDRAN S/O.KARUNAKARAN, DOOR NO.12/683, JAMMAPARAMBIL, PARAVANAMUKKU, COCHIN-2. 3THE NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, EDATHIL BUILDING, 1ST FLOOR, THOPPUMPADY, COCHIN-5. 4SHAJISHAJI, MANAKKACHIRA HOUSE, DOOR NO.9/160, MARADU P.O., TRIPUNITHURA, ERNAKULAM, PIN 682 301. 5NATIONAL INSURANCE COMPANY LIMITED BRANCH OFFICE, MYTHILMANDIRAM, PALARIVATTOM, COCHIN-25. BY ADVS.R5 BY SRI.A.A.MOHAMMED NAZIR R3 BY SRI.RAJAN P.KALIYATH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A No.3314 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 25[th] day of October, 2022** This appeal is directed against an award passed on 25.04.2014 by Additional Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) in O.P.(M.V.) No.1899 of 2010. The appellant is the petitioner before the Tribunal. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 5 in accordance with their status in the above Original Petition. 2. As the case of the petitioner stands, he met with a motor accident at about 07.30 pm on 12.09.2010, while travelling as pillion rider in a Motorcycle bearing Registration No.KL-32/B 223 from South to North through EdacochinThoppumpady Road. An autorickshaw bearing Registration No.KL-7 AH 5406 hit the Motorcycle due to the rash and negligent driving by its driver and he fell down and sustained injuries. He was rushed to General Hospital, Ernakulam and ``` M.A.C.A No.3314 of 2014 ``` ``` 3 ``` after availing primary medical aid, he was shifted to Medical College Hospital, Kottayam for better medical management. The owner, driver and the insurer of the autorickshaw were arrayed as respondents 1 to 3 in the Original Petition. The petitioner claimed to be a Mason earning Rs.12,500/monthly. Alleging that respondents 1 to 3 are jointly and severally liable to compensate him for a sum of Rs.5,00,000/- , the Original Petition was filed. 3. Respondents 1 and 2 though served with notice, did not turn up to contest the Original Petition and accordingly were declared ex parte. The 3[rd] respondent has filed written statement admitting insurance coverage of the autorickshaw at the relevant time of accident and disputing the other claims raised by the petitioner. 4. The accident was allegedly occurred due to the rash and negligent riding of the Motorcyle by the petitioner himself and not due to the negligence of the 2[nd] respondent who was driving the autorickshaw at the relevant time. The sum claimed as compensation is also disputed for being exorbitant. ``` M.A.C.A No.3314 of 2014 ``` ``` 4 ``` 5. Petitioner was examined before the Tribunal as PW1 and Exts.A1 to A5, A6 to A8 series, A9 to A13 and Ext.X1 were marked on his side. The respondents did not adduce any evidence. On the basis of the evidence on record the Tribunal found that the driver of the autorickshaw was responsible for the accident by his rash and negligent driving. The Tribunal also found that the petitioner in view of the injuries sustained in the motor accident involving the autorickshaw is entitled to get compensation. The sum payable as compensation was arrived at as Rs.2,41,787/- and the 3[rd] respondent was directed to deposit the same alongwith interest fixed on it at the rate of 8% per annum from 14.12.2010, the date of filing of the Original Petition till the date of realization. 6. According to Smt.Neethu Prem, the learned counsel for the appellant, the monthly income was fixed by the Tribunal notionally as Rs.4,000/- and that is too low. According to her, when the Apex Court had taken the monthly income of a Carpenter in **Chameli Devi and Others v. Jivrail Mian and Others** [2019 KHC 5352 (SC)] as ``` M.A.C.A No.3314 of 2014 ``` ``` 5 ``` Rs.5,000/-, this Court would be perfectly justified in taking Rs.5,000/- as the monthly income of the petitioner herein. 7. It is noticed that the petitioner himself was examined before the Tribunal as PW1. He had taken a version that he was working as a Mason under one Mr.Rajan and the latter had given Rs.12,500/- monthly as salary. The employer of the petitioner was not examined. In **Chameli Devi** supra, the victim was alleged as a Carpenter and had not raised a claim of working under anyoneelse. The Apex Court had fixed his monthly income as Rs.5,000/-. The monthly income cannot be taken in accordance with the fixation of the monthly income adopted in the case in **Chameli Devi** supra for the reason that the petitioner was working under some other person and that person, not examined. 8. The monthly income fixed by the Apex Court in ## **Ramachandrappa vs. Manager, Royal Sundaram Alliance** **Insurance Company Limited** [(2011) 13 SCC 236], can be taken as the basis for fixing the monthly income in the case on hand. Accordingly, this Court fixes Rs.7,500/- as the monthly income of the petitioner in the case on hand. It is ``` M.A.C.A No.3314 of 2014 ``` ``` 6 ``` noticed from the medical documents marked in evidence as Exts.A1 to A3, A4 series and Ext.A5 that the petitioner had sustained Type II open SCIC fracture of right femur and stable wedge compression fracture of D12. The injuries being serious ones, this Court finds it reasonable to assess loss of earning for eight months. When compensation is re-assessed on the basis of the monthly income modified as Rs.7,500/and the period for which he was prevented from doing work as 8 months, Rs.60,000/- is arrived at as the compensation payable. Rs.24,000/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.36,000/- as compensation additionally under the above head. Under the head, bystanders expenses this Court is inclined to enhance the sum stands awarded by the Tribunal to Rs.9,000/- and therefore, the petitioner will get Rs.1,500/- as compensation additionally. Under the head pain and suffering, against a claim of Rs.50,000/- raised, the Tribunal had awarded Rs.30,000/-. The nature of injuries and the treatment undergone by the petitioner constrains this Court to enhance the compensation to Rs.40,000/- and therefore, Rs.10,000/- ``` M.A.C.A No.3314 of 2014 ``` ``` 7 ``` is found payable as additional compensation. Under the head loss of amenities and enjoyments in life, the Tribunal awarded only Rs.20,000/- and this Court is inclined to modify it to Rs.25,000/- and therefore, Rs.5,000/- is payable as compensation additionally. Ext.A13 series are photographs of the petitioner which show that his leg was disfigured on account of the injuries sustained in the motor accident as well as the treatment to which he was subjected to. The Tribunal on it’s basis awarded Rs.5,000/- as compensation and the learned counsel canvassed for awarding a higher sum. This Court finds it reasonable to enhance the sum to Rs.15,000/and thereby the petitioner will get Rs.10,000/- as compensation additionally. 9. To assess compensation for permanent disability the Tribunal has taken 16% based on Ext.X1 certificate issued by the Medical Board. The multiplier is taken by the Tribunal as 17 and it is the proper one also. When reassessed on the basis of the monthly income modified as Rs.7,500/and the other factors adopted by the Tribunal maintained, the sum payable as compensation would come to Rs.2,44,800/-. ``` M.A.C.A No.3314 of 2014 ``` ``` 8 ``` Rs.1,30,560/- being the sum already stands awarded by the Tribunal, the petitioner will get Rs.1,14,240/- additionally. Therefore the petitioner will get Rs.1,76,740/- (Rupees One Lakh Seventy six Thousand Seven hundred and Forty only) as compensation over and above the sum stands awarded by the Tribunal. The said sum 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 excluding the period of delay which stands exempted by order passed by this Court on 16.02.2022 in C.M.A. No.1/2014. The 3[rd] respondent being the insurer shall deposit the said sum with interest fixed as above within a period of two months from the date of receipt of a certified copy of this judgment. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB