George K. Joseph v. The New India Assurance Co. Ltd.

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 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938 MACA.No. 166 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 2065/2006 of M.A.C.T.,PERUMBAVOOR DATED 16-08-2011 APPELLANT(S)/PETITIONER IN OPMV 2065/06: ------------------------------------------------- GEORGE K.JOSEPH AGED 26 YEARS, S/O. JOSEPH, KOTTANCHIRAYIL HOUSE, MEENKUNNAM P.O., ARAKUZHA VILLAGE, MUVATTUPUZHA TALUK BY ADVS.SRI.REJI GEORGE SRI.GOPAKUMAR G. SMT.ANUPAMA JOHNY SMT.JAISY MATHEW RESPONDENT(S)/RESPONDENT IN OPMV: --------------------------------- THE NEW INDIA ASSURANCE CO.LTD. S.M. SHOPPING COMPLEX, ALUVA ROAD, ANGAMALY- 683572 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) BY ADV. SRI.P.JAYASANKAR BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.166 OF 2012 ==========================** Dated this the 9[th] day of August, 2016 ## **JUDGMENT** ## _Jyothindranath, J._ This appeal is preferred against the award in O.P.(MV).No.2065 of 2006 on the files of the Motor Accidents Claims Tribunal, Perumbavoor. The challenge is against the quantum of compensation awarded by the Tribunal. 2.The case of the appellant is that, while he was riding a scooter bearing Reg.No.KEE-5059 through Athani-Airport Road at Nedumbassery, a van bearing Reg.No.KL-17/A 6806 came and hit against the same and that, in the accident, he sustained very severe injuries. He moved a claim petition before the Tribunal alleging **M.A.C.A.166/2012** 2 negligence of the driver of the van as cause of the accident and claimed a total compensation of `7,00,000/-. After appreciating the evidence, the Tribunal awarded a sum of `2,67,823/-. The said quantum of compensation is under challenge in this appeal. 3.When the appeal came up for hearing, the learned counsel for the appellant submitted before us that the appellant-petitioner was working as Traffic Assistant in CIAL, Nedumbasserry and was earning `6,000/- per month. It is also submitted that, to substantiate the claim, Ext.A9 is produced. It is also the submission that the petitioner sustained very severe injuries like fracture of femur as well as both bone fracture and was treated as inpatient for 35 days. It is the submission that the compensation awarded on various heads is on a lower side and an interference by this Court is warranted. 4.The insurance company opposed the upward enhancement. After hearing the learned counsel and perusing the award, we feel that a re-assessment is necessary in certain heads. It can be seen that this **M.A.C.A.166/2012** 3 is a case where a young man aged 26 years sustained fracture of femur as well as fracture of both bones, in the accident. It can be further seen that he was in the hospital for 35 days. There was surgery procedures wherein ORIF was done and thereafter, it was removed by another procedure by treating him as inpatient from 13.12.2007 to 17.12.2007. The accident occurred while appellant-petitioner was riding a scooter. Keeping all these aspects in mind, we feel that a reassessment is necessary. 5.The accident occurred in the year 2006. Surely, the case of the appellant is that he was working as Traffic Assistant at CIAL, Nedumbasserry. We perused Ext.A9 certificate. It can be seen that even though his claim is that he was working in CIAL, it is issued by 'de'cor drapes aviation services'. The said document is not seen proved. But at the very same time, it is to be remembered that in an accident occurred in 2004, that also in the case of a coolie, the Apex Court considered a monthly income of `4,500/- **[Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** ( **(2011)** **M.A.C.A.166/2012** 4 **13 SCC 236)].** Thus, considering the fact that we are dealing with a 2006 accident case, it will only be just and proper to consider an income of `5,000/- per month, for calculation purpose. Considering six months' treatment period, the appellant will be entitled for an additional sum of `12,000/- (5000x6-18000) towards loss of earning. It can be seen that the case of the appellant is that he sustained 12% disability. The appellant herein examined the doctor who issued the disability certificate which is marked as Ext.A8. The Tribunal considered only 8% disability for assessment purpose. We perused the disability certificate. It can be seen that as per the disability certificate, the appellant sustained fracture of femur as well as fracture of tibia and both fractures united. The reason shown for such an assessment is that there was restriction of movements. We feel that no illegality is committed by the Tribunal in taking 8% disability especially when the Tribunal got an opportunity to see the appellantpetitioner. In such circumstances, we are also inclined to adopt only 8% disability, for assessment purpose. Thus, the loss of income due to disability will be `32,640/- (5000x12x17x8/100-48960). The **M.A.C.A.166/2012** 5 Tribunal awarded only a sum of `1,500/- towards transportation expenses. Apparently, in this case, the appellant was treated in two hospitals. Moreover, he was again admitted for removal of implants. Under such circumstances, a sum of `1,000/- is awarded additionally on the head of transportation expenses. Towards extra nourishment, only a sum of `3,000/- is seen awarded. The appellant was in the hospital for 35 days. Thus, an additional sum of `500/- is awarded on this head. Towards bystanders expenses, the Tribunal awarded only a sum of `3,400/-. The accident occurred in the year 2006. Thus, taking `200/- as expenses per day and also considering 35 days as the period of hospitalisation, the appellant will be entitled for an additional sum of `3,600/- on this head. The said amount is awarded. Towards pain and suffering, the Tribunal awarded only a sum of `30,000/-. Here is a case where there are three major fractures. There is injury on the head as also on the ear lobe. Considering all these aspects, an additional sum of `5,000/- is awarded on this head. The Tribunal awarded only a sum of `250/- towards damage to clothing. The accident occurred in the year 2006. Hence, an additional sum of **M.A.C.A.166/2012** 6 `750/- is awarded on this head. Towards loss of amenities, a sum of `15,000/- is seen awarded. Considering the nature of the injuries, place of injuries, age of the victim etc., we feel that it will only be just and proper to award `10,000/- additionally on this head. The said amount is awarded. Thus, the appellant is entitled for an additional compensation of `65,490/- which is rounded off to `65,500/-. The additional compensation will bear 8% interest from the date of the petition till realisation. The insurance company shall pay the amount within two months from the date of receipt of a copy of this judgment. Failure will entail 9% interest from the date of the petition for the remaining amount to be paid. There will be no order as to costs in the appeal. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.166/2012** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.166/2012** 8 **JUDGMENT September, 2010**