IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938
MACA.No. 2369 of 2016 ()
------------------------AGAINST THE AWARD IN OPMV 1194/2012 of M.A.C.T., MANJERI DATED 08-06-2016
## APPELLANT(S)/PETITIONER.:
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FAISAL @ FAISAL BABU AGED 30 YEARS, S/O. AYSHA, KODIYATHU VEEDU, THELPARA, KAVALMUKKATTA P.O., AMARAMBALAM AMSOM AND DESOM, NILAMBUR TALUK, MALAPPPURAM DISTRICT, PIN- 679 332.
BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI
## RESPONDENT(S)/RESPONDENT.:
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1. MUHAMMED SALAM T S/O. ABDURAHIMAN T., THOTTINGAL HOUSE, KARAKKAPRAMBU, (PO) VANIYAMBALAM, WANDOOR, AMARAMBALAM AMSOM AND DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN- 679 339.
2. ICICI LOMBARD GENERAL INSURANCE CO. LTD., MANJERI P.O., MALAPPURAM DISTRICT, PIN- 676 121.
R2 BY ADV. SRI.LATHEESH SEBASTIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.**
**========================== M.A.C.A. No.2369 OF 2016 ==========================** Dated this the 27[th] day of September, 2016
## **JUDGMENT**
_Ravikumar, J._
This appeal by the injured-petitioner seeking enhancement of the quantum of compensation is filed against the judgment and award dated 8.6.2016 in O.P.(MV).No.1194 of 2012 passed by the Motor Accidents Claims Tribunal, Manjeri. The accident that led to the filing of the said claim petition under section 166 of the Motor Vehicles Act occurred on 21.6.2012. The appellant was walking through the extreme side of a road when he was knocked down by an autorickshaw bearing Reg.No.KL-10-AJ-327, driven by the first respondent, going by the averments. Consequently, he sustained injuries and he was initially taken to NIMS Hospital, Wandoor and
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thereafter, referred to MES Medical College Hospital, Perinthalmanna. He remained there as an inpatient for a period of 18 days. It is in the said circumstances that seeking a total compensation of `2,00,000/- the claim petition has been filed. As per the impugned award, the Tribunal granted a total compensation of `94,000/- @ 9% interest per annum from the date of the petition till realisation. The appellant seeks for enhancement of the quantum of compensation.
2.We have heard Sri.K.M.Sathyanatha Menon, the learned counsel for the appellant and Sri.Latheesh Sebastian, the learned counsel appearing for the insurance company. Obviously, there is no dispute regarding the liability to indemnify the first respondent who is the owner-cum-driver of the offending vehicle. In such circumstances, we are of the view that notice need not be issued to the first respondent and and hence, issuance of notice to the first respondent is dispensed with. After hearing the learned counsel on both sides, we are of the view that the appeal can be disposed of, at
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this admission stage itself.
3.Earlier, taking note of the submission of the learned counsel for the appellant that despite the filing of I.A.No.3676 of 2013 seeking for a reference to a medical board for assessment of permanent disability the Tribunal declined to pass any order thereon, we called for the records. The records would reveal that the said I.A was allowed. The order sheet would reveal that a letter was subsequently received from the medical board to the effect that the appellant had not appeared before the medical board for undergoing examination for assessment of permanent disability. In such circumstances, there is absolutely no justification for the appellant to raise such a grievance. The Tribunal cannot be found fault with, in not granting any amount towards permanent disability, in such circumstances. Therefore, we will proceed to consider the question whether the appellant is entitled to get enhancement under any other heads.
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4.The learned counsel for the appellant contended that though the accident occurred in the year 2012, precisely, on 21.6.2012, the Tribunal fixed the monthly income so meagrely only at `7,000/-. The learned counsel submitted that at the time of the accident, the appellant was aged only 26 years. It is the further submission that the the Tribunal had ignored Ext.A5 dated 3.1.2013 which is the certificate issued by TTM Trourism Service, Nilambur to the effect that he was an employee with it. True that, in the claim petition, the appellant claimed that he was a cleaner in a bus belonging to TTM Tourism service and was earning `9,000/- per month. Evidently, it is to establish the said contention that he produced Ext.A5, before the Tribunal. But at the same time, it is evident that TTM Tourism service is a private concern and the appellant had not examined anyone competent to prove the same and thereby, he had virtually deprived the respondents to cross-examine the person competent to prove the same. In such circumstances, the Tribunal cannot be found fault with,
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in not acting upon Ext.A5 and fixing the monthly income notionally after declining to accept his averments regarding occupation and income. Therefore, the question to be decided is whether fixation of monthly income at `7,000/- requires interference. In that context, the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** has to be taken for guidance. In that case, the Hon'ble Apex Court fixed the monthly as `4500/- in respect of a coolie who met with an accident in the year 2004, for calculation purpose. The accident involved in this case occurred 8 years therefrom. In such circumstances, we are of the view that it is only proper to fix the monthly income of the appellant for calculation as `8,000/-. Accordingly, it is fixed. The Tribunal, for the purpose of granting compensation under the head loss of earning, took the period as six months. On retaining the said period and calculating the amount of compensation taking into account the monthly income fixed by us, the appellant would be entitled to get an amount of `6,000/- additionally. It is granted. The medical records
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consisting of Exts.A2 and A3 which are respectively the wound certificate and the reference card would reveal that the appellant had
sustained the following injuries:-
1. Lacerated wound left forehead 2 x 1 cm.
2. Fracture both bone right leg.
3. Lacerated wound 3 x 1cm posterior aspect of elbow.
4. Lacerated wound 2 x 1cm 1x 1cm scalp
5. Multiple small abrasion left hand and other abrasions and contusions all over the body.
5.The nature of the injuries sustained by the appellant in the accident as obvious from Exts.A2 and A3 would reveal that he must have endured enormous pain. The Tribunal granted only an amount of
`25,000/- under the head pain and suffering. In such circumstances, we are of the view that an amount of `10,000/- can be granted additionally under the said head. It is granted. No amount was granted by the Tribunal towards loss of amenities. The nature of the injuries and the period of hospitalisation as referred hereinbefore constrain us to hold that the appellant is entitled to get compensation
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for loss of amenities. We fix the said amount as `10,000/-. The medical records would reveal that internal fixation was done; but there is nothing to show that it was removed prior to the passing of the award. In such circumstances, we are of the view that it is only proper to grant `10,000/- towards future treatment expenses. It is granted. In the light of the discussions as above, the appellant is entitled to get an additional compensation of `36,000/-. The said amount is awarded and it will carry 8% interest from the date of the petition till realisation. The second respondent is directed to deposit the amount along with interest within two months from the date of receipt of a copy of this judgment. There will be no order as to costs.
**Sd/C.T. RAVIKUMAR (JUDGE)**
**Sd/K.P.JYOTHINDRANATH (JUDGE)**
**spc/**
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## **C.T. RAVIKUMAR, J.**
**JUDGMENT September, 2010**
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