Damodaran P. @ Damu v. Oriental Insurance Company Limited

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ## `MACA NO. 732 OF 2022` ``` AGAINST THE AWARD IN OPMV 330/2019 OF MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL , TALIPARAMBA ``` ## `APPELLANT/PETITIONER:` ``` DAMODARAN.P @ DAMU AGED 57 YEARS S/O. NARAYANAN.A.V, AGED 57 YEARS, PALANGATTU HOUSE, PANNIYOOR, PALLIVAYAL. P.O, THALIPARAMBA TALUK, KANNUR DISTRICT, PIN – 670142 BY ADV M.R.JAYALATHA ``` ## `RESPONDENT/3RD RESPONDENT:` ``` THE MANAGER , ORIENTAL INSURANCE COMPANY LIMITED, MARINA SHOPPING CENTRE, NATIONAL HIGHWAY , THALIPARAMBA, PIN – 670141 ``` ``` BY ADVS. K.S.SANTHI, SC, ORIENTAL INSURANCE COMPANY LTD. C.S.MANILAL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 732 OF 2022 ``` ``` 2 ``` ## `JUDGMENT` ``` The appellant was injured in a road accident on 03.02.2018, while the offending vehicle driven in a rash and negligent manner hit him, when he was standing on a road. He says that he suffered injuries and had to be hospitalized and treated; and therefore, filed OP(MV)No.330/2019 before the Motor Accidents Claims Tribunal, Thaliparamba (“Tribunal” for short), seeking compensation of Rs.3,00,000/- but which has been allowed only to sum of Rs.1,59,115/-. He assails this Award as being inadequate. ``` ``` 2.Smt.M.R.Jayalatha – learned counsel for the appellant, argued that the compensation ``` ``` granted under the head “Loss of Earnings” is inadequate because, while doing so, the learned Tribunal has fixed the notional income of her ``` ``` MACA NO. 732 OF 2022 ``` ``` 3 ``` ``` client to be only Rs.10,500/-; and that too, for only five months, though he was completely incapacitated for six months. She then argued that the compensation for “Pain and Suffering” ought to have been granted higher; while that for “Loss of Amenities”, though not asked, should have been granted, taking note of the injuries sustained by him. ``` ``` 3.In response, the learned Standing ``` ``` CounselfortheInsuranceCompany, ``` ``` Smt.K.S.Santhi, submitted that the computations adopted by the Tribunal are without error and thus prayed that this appeal be dismissed. ``` ``` 4.I have examined the afore rival ``` ``` contentions of the parties and have tested them on the worth of the evidence on record – copies of which have been made available to this Court ``` ``` MACA NO. 732 OF 2022 ``` ``` 4 ``` ``` by the learned counsel for the parties across the Bar, with the express consent that they can be acted upon, without dispute. ``` ``` 5.This is not a case where the appellant has sustained any permanent disability and therefore, reckoning of his notional income is only for the purpose of computing “Loss of Earnings”. The learned Tribunal has found that the treatment record establishes that he could not work for five months and has awarded ``` ``` Rs.52,500/-, reckoning his notional income to be Rs.10,500/-. In this regardRamachandrappa v. ``` ``` Manager, Royal Sundaram Alliance Insurance ``` ``` Company Limited. [(2011) 13 SCC 236], should have ``` ``` guided the Tribunal and the standardization postulated therein ought to have been adopted. Going by the said judgment, even in the case of a ``` ``` MACA NO. 732 OF 2022 ``` ``` 5 ``` ``` person with an unascertainable income in the year of 2018 – when the accident occurred – the minimum figure to be adopted as notional income is Rs.11,500/-. I propose to take this figure and to enhance the number of months to six, adverting ``` ``` to of the fact that the medical evidence shows that the appellant had to be under treatment or rest for such period. ``` ``` 6.However, I cannot find the compensation awarded by the Tribunal under the heads “Pain and Suffering” to be inadequate; and coming to the compensation for “Loss of Amenities”, the appellant did not seek any amounts under it and the Tribunal has not granted it. However, the learned Tribunal itself has recorded, while considering Issue No.II in the impugned Award, that the appellant also suffered from ``` ``` MACA NO. 732 OF 2022 ``` ## `6` ``` “Intertrochanteric fracture of his right hip” ``` ``` (sic). If this be so, certainly, he would have been subjected to great amount of trauma and ``` ``` agony and would have surely suffered “Loss of Amenities” for some time, at least until the treatment lasted. I, therefore, propose, that an ``` ``` amount of Rs.15,000/- be granted to the appellant ``` ``` under the head “Loss of Amenities”. ``` ``` 7.As far as bystander's expenses are ``` ``` concerned, I notice that the learned Tribunal has ``` ``` awarded the same for nine days at the rate of Rs.600/- per day. Since the accident was of the ``` ``` year 2018, I am of the view that the per diem ``` ``` expenses should be reckoned as being Rs.700/-. ``` ``` Resultantly, this appeal is allowed in the following manner” ``` ``` a)The compensation for “Loss of Earnings” ``` ``` MACA NO. 732 OF 2022 ``` ``` 7 ``` ``` is enhanced to Rs.69,000/-, from Rs.52,500/-, reckoning the notional income of the appellant to be Rs.11,500/-, for a period of six months. ``` ``` b)The compensation under the head ``` ``` “Bystander’s Expenses” is enhanced to Rs.6,300/-, ``` ``` from Rs.5,400/- granted by the Tribunal. ``` ``` In all other heads, the compensation awarded ``` ``` by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled ``` ``` to recover the compensation, as enhanced by this ``` ``` Court, from the respondent – Insurance Company, along with interest at the rate of 8%, from the date of filing of the claim until it is realised. ``` ``` The appellant will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` MACA NO. 732 OF 2022 ``` ``` 8 ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` SAS ```