EBRAHIMKUTTY v. BIJU V. MATHEW, JOHNEY JOHN and THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD. (M.A.C.A. No. 299 of 2011)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 13TH DAY OF NOVEMBER 2017 / 22ND KARTHIKA, 1939** **AGAINST THE AWARD IN OPMV 454/2007 of M.A.C.T.,KOLLAM DATED 24-09-2010** **APPELLANT(S)/PETITIONER** **EBRAHIMKUTTY, AGED 42 YEARS, S/O. SHAHUL HAMEED, PLAVILA PUTHEN VEEDU,, EDAVATTOM.B, VELLIMON.P.O,, PERINADU VILLAGE.** **BY ADVS.SRI.VIJU THOMAS SMT.M.MEENA JOHN** ## **RESPONDENT(S)/RESPONDENTS:** **1. BIJU V. MATHEW, VILAYIL PUTHEN VEEDU, ADICHANALLOOR, KOLLAM - 691 573.** **2. JOHNEY JOHN, S/O. JOHN, VARUVILA KIZHAKKATHIL VEEDU,, CHENGAMANDA, MELILA VILLAGE,, CHEGAMANAD.P.O - 691 557.** **3. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD.,, L.I.C BUILDING, CHINNAKADA,, KOLLAM - 691 001.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T. RAVIKUMAR, & B. SUDHEENDRA KUMAR, JJ.** ------------------------------------------------- **M.A.C.A. No. 299 of 2011** ------------------------------------------------- Dated this the 13[th] November, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal seeking enhancement of quantum of compensation is filed by the injured/petitioner in O.P. (MV) No. 454 of 2007 on the files of the Motor Accidents Claims Tribunal, Kollam. He was a victim of a motor vehicle accident involving collision of a motor cycle and a car bearing Registration No. KL 2M 171, driven by the 2[nd] respondent. He was a motorcylist. As per the impugned judgment and award dated 24-09-2010, the Tribunal held that the cause of the accident is rash and negligent M.A.C.A. No. 299 of 2011 -2- driving of the car bearing Reg. No. KL 2M 171 by the 2[nd] respondent. Consequently, its insured owner was held vicariously liable and the 3[rd] respondent/Insurance Company was called upon to indemnify him. Despite such findings, none of the respondents preferred any appeal. So also, they did not take up any cross-objection in this appeal. Hence, the only question to be decided in this appeal is whether or not the appellant is entitled to get enhanced compensation. 2. Heard the learned counsel for the appellant and also the learned counsel appearing for the 3[rd] respondent Insurance Company. M.A.C.A. No. 299 of 2011 -3- 3. The learned counsel appearing for the appellant contended that the Tribunal had erred in fixing the monthly income. In the Claim Petition it was averred that the appellant was working as a business man and was earning Rs. 7000/- per month. To establish his occupation and income, he had produced Ext. A10 licence for beds. The licence was issued on manufacturing 5-3-1994 by Perinadu Panchayat. There is nothing on record to show that as on 15-12-2006, the date of the accident, it was valid and he was conducting any business on the strength of Ext. A10 after getting it renewed. It is also relevant to note that he had not given oral evidence. In such circumstances, the fixation of the monthly income by the Tribunal notionally cannot be said to be an error M.A.C.A. No. 299 of 2011 -4- warranting interference. But at the same time, the question is whether the fixation of the monthly income as Rs. 2500/- warrants an interference, taking into account the other relevant factors. 4. At the time of the accident, the appellant was aged 42 years. True that there is absence of evidence on record revealing the occupation and income of the appellant. Even in such circumstances, the decision of the Hon'ble Apex Court in **Ramachadrappa v. Royal Sundaram (AIR 2011 SC 2951)** can act as guidance in the matter of monthly income. In that case, in respect of a coolie who met with an accident in the year 2004, the Apex Court took the monthly income, notionally, as Rs. 4,500/-. M.A.C.A. No. 299 of 2011 -5- Hence, taking into account the aforesaid factors, we are of the view that it is only reasonable to fix the monthly income of the appellant as Rs. 5,000/-. Eventhough the appellant had not adduced any evidence to prove that he had incurred disability due to the injury sustained in the accident as also the extent of the disability, the Tribunal had taken it as 8%. In such circumstances, the appellant cannot have any grievance with respect to the assessment of the permanent disability by the Tribunal. None of the respondents raised any grievance against the same legally, presumably, taking into account the nature of the injuries sustained by the appellant. The evidence on record discussed in the impugned judgment itself, would reveal that the appellant had sustained the following injuries:- M.A.C.A. No. 299 of 2011 -6- Punctured wound 6cms. long over proximal leg with tibia exposed through-oozing+ Lacerated wound lateral aspect of (R ) little toe 2 cm x 1cm x 1cm. X-ray revealed comminuted segmental fracture ® tibial shaft, fracture upper third of fibula (R ). Ext. A7 discharge card would reveal that he was admitted in Medical College Hospital, Thiruvananthapuram on 15-12-2006 and was discharged on 2-1-2007. Tyupe III compound fracture both bone (R ) leg (segmental tibia) was diagnosed from there. He was treated by wound debridement Ex-fia as emergency procedure. Taking into account such aspects, we do not think it proper to interfere with the assessment of permanent disability, by the Tribunal. The multiplier was correctly adopted by the Tribunal. In such circumstances, a re-assessment of the compensation for permanent disability is required only by substituting the re-fixed monthly income. On such re-assessment, the appellant is entitled to get an amount of Rs. 67,200/(5000x12x14x8/100). After deducting the amount already granted under the said head viz., Rs. 33,600/-, the M.A.C.A. No. 299 of 2011 -7- appellant is entitled to get an amount of Rs 33,600/additionally under that head. For the purpose of calculating compensation for loss of earning, the Tribunal had taken the period as six months. Retaining the said period, but taking the re-fixed monthly income, the appellant is entitled to get an amount of Rs. 15,000/- more thereunder. It is granted. The appellant had been an inpatient for a period of 18 days. The Tribunal had granted an amount of Rs. 1000/- towards extra nourishment and an amount of Rs. 1900/- as bystander expenses. According to us, the rate of bystander expenses ought to have been Rs. 150/- per day and towards extra nourishment it ought to have been Rs. 100/- per day. In that view of the matter the appellant is entitled to get an M.A.C.A. No. 299 of 2011 -8- amount of Rs. 800/- each additionally towards expense extra nourishment and bystander's service. Towards damage to clothing we are inclined to grant Rs. 500/more. Towards compensation for amenities, the appellant is entitled to get an amount of Rs. 15,000/-, the Tribunal has granted an amount of Rs. 11,200/-. In other words, the appellant is entitled to get an amount of Rs. 3,800/- more. We are inclined to award an amount of Rs. 5000/- more towards pain and suffering taking into account the nature of the injuries sustained by the appellant. In the light of the re-assessment made by us, the appellant is entitled to get an additional compensation of Rs. 59,500/- (Rupees fifty nine thousand five hundred only) and it is awarded. The said additional compensation will carry interest at the M.A.C.A. No. 299 of 2011 -9- rate of 8% per annum from the date of the petition till realisation. The 3[rd] respondent/Insurance Company shall deposit the additional compensation along with interest thereon, within a period of two months from the date of receipt of a copy of this judgment. In the result, this appeal stands disposed of as above. **Sd/-C.T. RAVIKUMAR, JUDGE.** **Sd/- B. SUDHEENDRA KUMAR, JUDGE** . ## /true copy/ ani/14/11/ P.s. To Judge