Ganeshan v. The New India Assurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 5[ TH ] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946`** ## **`MACA NO. 2221 OF 2014`** ``` AGAINST THE AWARD DATED IN OP(MV) NO.1290 OF 2011 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` GANESHAN, AGED 48 YEARS, S/O.GOPALAN, RESIDING AT 163-B, VELIYANCHERY, ARJUN NIVAS, MUTTAM, KUNI PARAMBA, P O KOMERI, KOZHIKODE. ``` ``` BY ADVS. SRI.AVM.SALAHUDIN SMT.EMIL STANLEY ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE NEW INDIA ASSURANCE CO.LTD., SILVER PLAZA BUILDING, MAVOOR ROAD, KOZHIKODE-673001. ``` MACA 2221 of 2014 2 ## **`BY ADV SRI.P.V.KURIACHAN`** ## **`SRI.N.S.NAJEEB (SC, NEW INDIA ASSURANCE)`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2221 of 2014 3 ## **J U D G M E N T** This appeal is at the instance of the claimant in OP(MV)No.1290 of 2011 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode, impugning the award on the ground of inadequacy of compensation. 2. On 07.04.2011, at 5.15 p.m., the appellant met with a road traffic accident, while he was riding a motorcycle through Pottammal - Calicut road. He was knocked down by KL-11/AB-9360 motorcycle ridden by the 2nd respondent in a rash and negligent manner. He sustained serious injuries including fracture to neck of left fibula, left tibial plateau and other injuries all over the body. He was admitted and treated in Baby Memorial Hospital, Kozhikode, for 21 days. He underwent three surgeries, and he suffered permanent disability of 30%, due to the injuries suffered in the accident. He was an auto driver aged 45 at the time of accident. He approached the Tribunal claiming compensation of Rs.10,00,000/-, but learned Tribunal awarded only Rs.4,61,197/-, Hence this appeal. MACA 2221 of 2014 4 3. The 1st respondent was the owner of the offending motorcycle, 2nd respondent was its rider and the 3rd respondent was its Insurer. The 3rd respondent-Insurer admitted the Policy, but disputed the liability to compensate the claimant/appellant. Learned Tribunal, after analysing the facts and evidence, found that the accident occurred due to the rash and negligent riding of the offending motorcycle by the 2nd respondent, of which the 1st respondent was the owner. Since that vehicle was validly insured with the 3rd respondent, learned Tribunal found that the 3rd respondent was liable to indemnify the owner, and thereby to compensate the claimant. 4. In the appeal, the sole respondent-Insurer appeared through counsel and submitted that the compensation awarded by the Tribunal is just and reasonable and hence it needs no modification. 5. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. MACA 2221 of 2014 5 6. Heard learned counsel Sri.A.V.M.Salahuddeen appearing for the appellant and Sri.N.S.Najeeb, learned counsel appearing for the respondent-Insurer. 7. Learned counsel for the appellant would submit that the appellant was a 45 year old autorickshaw driver, earning monthly income of Rs.10,500/-. But learned Tribunal assessed compensation fixing his notional income @ Rs.4,000/- only, which according to him is on the lower side. Learned Tribunal found that, no documents were produced by the claimant to prove his monthly income and so, his notional income was taken as Rs.4,000/-. Learned counsel for the appellant relied on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR** **2011 SC 2951]** , to say that even a coolie worker was eligible to get his notional income fixed @ Rs.8,000/- in the year 2011. So, he is eligible to get his notional income fixed, at least in par with that. Relying on that decision, this Court is inclined to fix his notional income @ Rs.8,000/- per month. MACA 2221 of 2014 6 8. Learned Tribunal assessed loss of earning for four months only. The appellant had suffered fracture of neck of left fibula and tibial plateau and he was hospitalised for 21 days. Ext.C1 Disability Certificate shows that he had suffered 30% disability due to the injuries suffered in the accident. So this Court is inclined to take his loss of earning for a period of six months @ Rs.8,000/-, which will come to Rs.48,000/- in total (8,000x6). After deducting Rs.16,000/- already awarded, he is entitled to get the balance amount of Rs.32,000/- as enhanced compensation under the head ‘loss of earning’. 9. Towards transportation expenses, learned Tribunal awarded only Rs.1,000/- against his claim of Rs.5,000/-. It has come out in evidence that he was hospitalised on two different spells, and so this Court is inclined to award Rs.1,000/- more under the head ‘transportation expenses’. 10. Towards extra nourishment, learned Tribunal awarded only Rs.1,500/-. He was hospitalised for 21 days and even after discharge, he was taking rest at home. So this Court is MACA 2221 of 2014 7 inclined to award Rs.1,000/- more under the head ‘extra nourishment’. 11. Towards bystander expenses, learned Tribunal awarded Rs.250/- per day for 21 days of hospitalisation. Since the accident and the hospitalization was in the year 2011, this Court is inclined to award Rs.300/- per day for 21 days. So he is entitled to get an enhancement of Rs.1,050/- towards bystander expenses. 12. Towards pain and suffering, learned Tribunal awarded only Rs.25,000/- against his claim of Rs.1,50,000/-. He had suffered fracture to left fibula and tibial plateau, and he was hospitalized for 21 days. He underwent three surgeries and the medical bills itself amounts to Rs.2,14,747/-. Considering these aspects, this Court is inclined to award Rs.10,000/- more under the head ‘pain and suffering’. 13. Learned Tribunal assessed disability compensation taking monthly income of the appellant @ Rs.4,000/- and adopting the multiplier of 13. We have fixed his notional MACA 2221 of 2014 8 income @ Rs.8,000/-. Since he was aged 45, the proper multiplier was 14. So he was eligible to get Rs.4,03,200/towards disability compensation for 30% disability (8,000x12x14x30/100). After deducting Rs.1,87,200/- already awarded by the Tribunal, he is entitled to get the balance amount of Rs.2,16,000/- as enhanced compensation for disability. 14. Towards loss of amenities, learned Tribunal awarded Rs.10,000/- though he had not made any claim for that. Since the appellant suffered 30% disability as seen from Ext.C1 Disability Certificate, involving partial stiffness of left knee and hip, with moderate restriction in daily activities, this Court is inclined to award Rs.5,000/- more under the head ‘loss of amenities’. 15. The compensation awarded by the Tribunal under all other heads seems to be reasonable and hence it needs no modification. MACA 2221 of 2014 9 |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.16,000/-|Rs.48,000/-|Rs.32,000/-| |Transportation<br>expenses|Rs.1,000/-|Rs.2,000/-|Rs.1,000/-| |Extra nourishment|Rs.1,500/-|Rs.2,500/-|Rs.1,000/-| |Bystander<br>expenses|Rs.5,250/-|Rs.6,300/-|Rs.1,050/-| |Pain and suffering|Rs.25,000/-|Rs.35,000/-|Rs.10,000/-| |Compensation for<br>permanent<br>disability|Rs.1,87,200/-|Rs,4,03,200/-|Rs.2,16,000/-| |Loss of amenities|Rs.10,000/-|Rs.15,000/-|Rs.5,000/-| |Total|||**Rs.2,66,050**/-| ## 16. In the result, the appellant is entitled to get Rs.2,66,050/- as enhanced compensation. 17. The respondent-Insurer is directed to deposit the enhanced compensation of Rs.2,66,050/- (Rupees Two Lakh Sixty Six Thousand Fifty only) with 8% interest per annum from the date of petition till the date of deposit, before the MACA 2221 of 2014 10 Principal Motor Accidents Claims Tribunal, Kozhikode, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant, after deducting his liabilities if any, towards tax, balance court fee, legal benefit fund etc. The appeal is allowed to the extent as above with proportionate costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-