Georgekutty Thomas v. George Thomas and United India Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 15TH DAY OF JUNE 2016/25TH JYAISHTA, 1938 MACA.No. 1065 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 832/2006 of MACT ALAPPUZHA DATED 31-01-2012 APPELLANT(S)/PETITIONER: ------------------------------ GEORGEKUTTY THOMAS AGED 42, PEEDIYAL PARAMBIL, KOYILMUKKU SOUTH, PANDANKARY P.O., EDATHUA. ## BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENT(S):RESPONDENTS ------------------------------------- 1. GEORGE THOMAS S/O.THOMAS VARGHESE, KALLUPURACKAL PACHA, CHEKKIDIKADU P.O., EDATHUA-689573 2. UNITED INDIA INSURANCE COMPANY LIMITED REPRESENTED BY ITS MANAGER, ALAPPUZHA-688001 R2 BY ADV. SRI.T.V.AJAYAKUMAR R2 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **&** ## **K. P. JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1065 OF 2012 ==========================** Dated this the 15[th] day of June, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured -claimant preferred this appeal against the judgment and award in O.P.(MV).No.832 of 2006 seeking enhancement of the compensation awarded thereunder by the Motor Accidents Claims Tribunal, Alappuzha. The accident that constrained the appellant to file the aforementioned claim petition occurred on 20.4.2006 at about 4 p.m. The appellant was riding his motor cycle bearing Reg.No.KL04/R-1351 from East to West through Thiruvalla-Thakazhy public road. When he reached near Edathuva junction, the offending vehicle which is an autorickshaw bearing Reg.No.KL-04/N-292 driven by the first respondent hit against his motor cycle. The appellant sustained injuries and thereupon, he was taken to Pushpagiri Medical College **M.A.C.A.1065/2012** 2 Hospital. It is in the said circumstances that seeking compensation for the injuries sustained, the appellant preferred the aforementioned claim petition. 2.No oral evidence was adduced by both sides. On the side of the appellant, Exts.A1 to A10 were got marked and no documentary evidence was adduced by the respondents. The Tribunal, on evaluation of the evidence on record and appreciating the rival contentions, passed the impugned award for a total compensation of `48,067/- as against a claim of `3,50,000/-. The captioned appeal has been preferred seeking enhancement of the quantum of compensation awarded thereunder. 3.We have heard the learned counsel for the appellant and also the learned counsel for the second respondent. 4.From the rival contentions advanced before us, it is evident **M.A.C.A.1065/2012** 3 that there is no dispute regarding the accident, insurance coverage of the offending vehicle at the time of the accident as also the cause of the accident as the negligence from the part of the first respondent who drove the offending vehicle at the relevant point of time. The learned counsel for the appellant contended that a bare perusal of the schedule attached to the impugned award would reveal that the Tribunal granted only meagre amounts as compensation under all heads. It is submitted by the learned counsel that out of the total amount of compensation of `48,067, an amount of `36,317/- is covered by the medical bills. The learned counsel for the appellant also contended that the appellant was aged 36 years at the time of the accident and he is an Engineer by profession and was earning an amount of `20,000/- per month. Though the appellant-claimant produced Exts.A8 and A10 in support of his claim for occupation and income, it is to be noted that they are dated respectively 7.12.2009 and 21.9.2011. In other words, they are pertaining to the period much after the date of the accident. In such circumstances, for the purpose **M.A.C.A.1065/2012** 4 of arriving at the income of the appellant at the time of the accident, such documents are of no use and they are irrelevant and inconsequential. The learned counsel for the appellant further contended that the Tribunal has erred in fixing the monthly income of the appellant notionally at `3500/- disregarding the age of the appellant and year of the accident. 5.Per contra, the learned counsel appearing for the second respondent contended that a bare perusal of the impugned award would reveal that taking note of the injuries sustained by the appellant in the accident, the Tribunal granted adequate compensation under all heads. In short, it is submitted that no appellate interference is called for, in this case. 6.We will firstly consider whether the fixation of monthly income as `3500/- calls for any interference. Taking note of the fact that in respect of an accident that occurred in 2004 to a coolie, the **M.A.C.A.1065/2012** 5 Hon'ble Apex Court has taken the monthly income of `4500/- for calculation purpose, going by the decision in **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** certainly the appellant is justified in contending that the amount fixed by the Tribunal is too low and seeking for its modification. Taking note of the age of the appellant and the year of the accident as mentioned hereinbefore, we are inclined to take monthly income of the appellant notionally at `5,000/-. The Tribunal took two months as the period of loss of earning. On retaining the same period, but reckoning the monthly income as `5,000/-, the appellant would be entitled to get `3,000/- more under that head. Hence, it is awarded. Towards transportation to hospital, the Tribunal granted only an amount of `800/- as against a claim of `1,500/-. True that the appellant had not produced any document to show the actual expenses incurred towards transportation. But at the same time, there cannot be any doubt with respect to the fact that immediately after the accident, he was taken to the hospital and even thereafter, in the light **M.A.C.A.1065/2012** 6 of the evidence on record it has to be held that he must have at least a further visit to the hospital. In such circumstances, we do not find any reason as to why the entire amount claimed by the appellant should not be granted. In other words, we are inclined to grant the entire amount claimed by the appellant viz., `1,500/- under that head. The appellant was already granted `800/- by the Tribunal. Hence, he is entitled to get `700/- more under that head. While considering the amount payable towards claim for extra nourishment and bystanders expenses, the indisputable fact that the appellant had been an inpatient for 7 days has to be taken into account. The Tribunal granted only an amount of `500/- towards extra nourishment and `600/- towards bystanders expenses. We are of the view that the appellant is entitled to get `200/- and `800/- additionally under the aforesaid heads and accordingly, the said amounts are granted. Towards damage to clothing, the appellant claimed an amount of `800/-. But the Tribunal granted only `350/-. The nature of the injuries sustained by the appellant would clearly suggest that the **M.A.C.A.1065/2012** 7 dresses worn by him at the time of the accident must have been damaged. In such circumstances, we grant `450/- more under that head. Towards loss of pleasure and happiness, as against the claim of `1,00,000/-, the Tribunal granted an amount of `2500/-. It is also to be noted that no separate amount was granted by the Tribunal towards loss of pain and suffering. Injuries revealed from Ext.A3 wound certificate would undoubtedly reveal that the appellant must have had severe pain consequent to the sustainment of the injuries in the accident. Going by Ext.P7 he sustained the following injuries:- 1. Lacerated wound above right eyebrow 2 x 1 cms. 2. Swelling, lacerated wound and tissue loss on the right lower eyelid. 3. Swelling and abrasion on the right wrist. 4. Abrasion on left wrist, Subluxation of carpel bones. As already noticed hereinbefore, he had been an inpatient for a period of 7 days. Taking into account all such aspects, we are of the view that towards loss of pleasure and happiness and also taking into account the pain and suffering endured by the appellant, an amount of `10,000/- can be granted under the combined head. The Tribunal **M.A.C.A.1065/2012** 8 granted an amount of `2,500/- towards loss of pleasure and happiness. In such circumstances, under the said combined head, he is entitled to get `7,500/- additionally. In the light of the discussions as above, the appellant is entitled to get an enhanced amount of `12,650/-. It is awarded. The enhanced amount will carry interest @ 8% per annum from the date of the petition till realisation. The second respondent is directed to deposit the said amount within a period of one month 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/** # **M.A.C.A.1065/2012** 9 **M.A.C.A.1065/2012** 10 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.1065/2012** 11