Geo Joy @ Joy v. Raghavendra S/o Thimmappa, Surendrababu An De, The Oriental Insurance Company Limited

M.A.C.A.1116/2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944** **MACA NO. 1116 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1811/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/S:** GEO JOY @ JOY S/O E.M. JOY, ELAVATHUNKAL HOUSE, KUMARANALLOOR P.O., KOTTAYAM. BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE ## **RESPONDENT/S:** 1 RAGHAVENDRA S/O THIMMAPPA, 15 IMURI, SREENIVAS NAGAR, BANGALORE560 050. 2 SURENDRABABU ANDE 892/1ST FLOOR, 6TH CROSS, CHOWDESHWARI LAYOUT, BEHIND THULASI THEATRE, BANGALORE 560 034. 3 THE ORIENTAL INSURANCE COMPANY LIMITED KOTTAYAM-686 001. BY ADV SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.1116/2012 2 ## **C.JAYACHANDRAN, J. ----------------------------------------------** **M.A.C.A.No.1116 of 2012 --------------------------------------------Dated this the 17[th] day of June, 2022** ## **J U D G M E N T** **1.** The claimant/injured in O.P.(M.V.)No.1811 of 2006 of the Motor Accidents Claims Tribunal, Kottayam is the appellant herein. He assails the award dated 11.05.2011 in the said original petition. **2.** Heard the learned counsel for the appellant and learned counsel for the third respondent/insurance company. **3.** Learned counsel for the appellant submitted that the accident took place in 10.06.2005, when the appellant was an Engineering student, aged 26 years. He assails the award seeking enhancement on the following grounds. **4.** The first ground is the notional income. The Tribunal reckoned notional income @Rs.3,000/-. Relying M.A.C.A.1116/2012 3 upon the judgment of the Division Bench of this Court in **National Insurance Company Pvt. Ltd.** v **. Fathimath** **Zuhara @Zuhra Razak and Another** [2016 KHC 691] **,** learned counsel for the appellant would contend that the monthly income ought to have been reckoned was Rs.12,000/-, as has been taken in the case of an Engineering student who met with a accident in the year 2005 and who was aged 19 years at that time. As against the said submission, learned counsel for the third respondent/insurance company submitted that the judgment relied upon by the appellant is not applicable to the present case, for the reason that the present one is a case of injury without disability, whereas, judgment relied upon by the learned counsel is where four Engineering students passed away in the accident. Learned counsel also pointed out the distinction that, in the instant case, appellant/petitioner was not an earning member even at the age of 26 years and he was still an Engineering student, as claimed. Therefore, according to the learned counsel for the insurance M.A.C.A.1116/2012 4 company, the notional income reckoned by the Tribunal is just and proper. **5.** Having heard the learned counsel appearing on both sides, this Court is not in a position either to accept the contention of the appellant, or the contention of the learned counsel in toto. As rightly pointed out by the learned counsel for the third respondent/insurance company, the judgment in **Fathimath** **Zuhara's case (supra)** is not on all fours to the present facts. That was a case of death and the student was aged only 19 years, whereas, in the instant case, it is a case of injury, with no disability and the petitioner is still a student even in the age of 26 years. However, this Court is of the opinion that the monthly income reckoned at Rs.3,000/- is on the lower side. If this Court takes resort to the index available in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [2011 KHC 4675] **,** the notional income pertaining to the year 2005 is Rs.5,000/-. Considering the fact that the M.A.C.A.1116/2012 5 appellant/petitioner is an Engineering student and also considering the fact that he has lost six months out of the accident, as taken note of by the Tribunal in paragraph 13 of the judgment, this Court is of the opinion that a sum of Rs.6,000/- will be reasonable towards monthly income. **6.** The next head under which the appellant claims enhancement is bystander expenses, which was reckoned @100/- day for a period of 45 days. There is no quarrel that the appellant was treated as an inpatient for 45 days. Taking into account the fact that the accident occurred in the year 2005, it would be reasonable to fix the bystander expenses @ Rs.300/- per day. **7.** The third head is one under pain and suffering where the Tribunal has reckoned Rs.18,000/- towards compensation. While the appellant would assail the same as grossly insufficient, third respondent would maintain that the same is adequate. Taking into account the fact that the petitioner had suffered a fracture on M.A.C.A.1116/2012 6 his hip and that, he was an inpatient for a period of 45 days, this Court is of the opinion that a sum of Rs.25,000/- would be reasonable under the head pain and suffering. **8.** In the result, the appeal is allowed. The appellant is entitled to an enhanced compensation of Rs.34,000/- as demonstrated in the table shown here. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|Transport to hospital|1,500|1,500| |2|Extra nourishment|1,500|1,500| |3|Damage to clothing|1,000|1,000| |4|Bystander's expenses|4500|13,500 [300x45]| |5|Medical expenses|2000|2,000| |6|Loss of income|18000|36,000 [6000x6]| |7|Pain and suffering|18000|25,000| |8|Loss of Amenities and<br>Disability|25000|25,000| |9|Permanent Disability|Nil|-| M.A.C.A.1116/2012 7 ||||| |---|---|---|---| |10|Loss of earning power|-|-| |11|Loss of bright prospects<br>and career|-|-| |12|Travelling expenses|-|-| |13|Damage to the Motor<br>cycle|-|-| ||||| ||Total|71500|1,05,500| |Amount enhanced = Rs.1,05,500 – Rs.71500|||=**Rs.34,000**| **9.** The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amount, at the rate of 6% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 225 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 26.06.2012 in C.M.A.No.1367/2012 in this appeal. The M.A.C.A.1116/2012 8 claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. ## **Sd/-** **C.JAYACHANDRAN** **JUDGE** ``` Sbna/ ```