Gireesh v. Divisional Manager, National Insurance Co. Ltd., Kollam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938** ## **MACA.No. 3548 of 2015 ()** **-------------------------** ## **AGAINST THE AWARD IN OPMV 783/2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOLLAM DATED 07-03-2015** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **GIREESH, S/O.KESAVAN, AGED 43 YEARS, NAMBALATHERIL VEEDU, ADINAD SOUTH MURI, ADINAD VILLAGE, KOLLAM DISTRICT.** **BY ADVS.SRI.K.SIJU SMT.RENY ANTO** ## **RESPONDENT(S)/3RD RESPONDENT:** **----------------------------THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD. KOLLAM.** **BY ADV. SRI.P.JACOB MATHEW R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.3548 of 2015** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of September, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The injured claimant comes up in appeal on being dissatisfied with the quantum of compensation granted by Motor Accidents Claims Tribunal, Kollam as per the award in O.P.(M.V.)No.783/2012. The claim petition was filed under Section 166 of the M.V. Act for the injuries sustained by him in a motor vehicle accident occurred on 8.12.2011. On that day the appellant was riding his motorcycle bearing registration No.KL-23/B 664. When he reached near Pallimukku in Karunagappally the offending vehicle which is a WagnoR car bearing registration No.KL-7/AY 3926 dashed against his motorcycle. Consequently he sustained injures. He had been an inpatient for a period of 7 days at Sree Narayana Medical Mission Hospital, Kollam. Ext.A8 discharge summary would reveal that he sustained the M.A.C.A.No.3548 of 2015 2 ## following injures in the accident: ## Brain concussion Undisplaced fracture on the base of 4[th] meta tarsal right foot. It is in the said circumstances that taking the averments that he was working as a Clerk in Boys High School, Karunagappally and was earning Rs.8,000/- per month and further taking up necessary averments against respondents 1 to 3 the aforementioned claim petition was filed seeking a total compensation of Rs.3 lakhs. As per the impugned award the Tribunal granted an amount of Rs.25,172/- with interest at the rate of 9% from the date of petition till realisation. It is soliciting enhancement of the compensation that the captioned appeal has been preferred. 2. After hearing the learned counsel on both sides, we are of the view that this appeal can be disposed of at the admission stage as the sole question to be considered in this appeal is whether or not the appellant is entitled to get enhancement of compensation under any of the heads. Obviously, no other questions are raised for resolution. M.A.C.A.No.3548 of 2015 3 3. The learned counsel for the appellant contended that the Tribunal granted only a meagre sum under the head compensation for pain and suffering and no amount was granted under the head loss of amenities. It is also submitted that the Tribunal went wrong in not granting any compensation for loss of earning. 4. The learned counsel Sri. P. Jacob Mathew appearing for the respondent the Insurance Company submitted that what is granted under the impugned award is just compensation and the appellant has failed to bring out any ground inviting an appellate interference. It is contended that though the appellant claimed that he was working in Boys High School, Karunagappally and was earning Rs.8,000/- the appellant had not adduced any evidence in support of his contentions regarding occupation and income. It is further submitted that in such circumstances the Tribunal has rightly declined to grant any amount under the head loss of earning. 5. Having heard the learned counsel on both sides, M.A.C.A.No.3548 of 2015 4 we are of the view that the impugned award invites interference to certain extent. 6. True that the appellant had not adduced any evidence to establish his contention taken up in the claim petition regarding the occupation and income. In the claim petition he claimed that he was a clerk in Boys High School, Karunagappally and was earning an amount of Rs.8,000/per month. In view of his failure to adduce evidence in support of the said contentions, we are of the view that the Tribunal cannot be held as committed an error or illegality in declining to accept his contentions regarding occupation and income. But at the same time it is evident from the evidence on record that the appellant had sustained injuries in a motor vehicle accident and he had been an inpatient for a period of 7 days at Sree Narayana Medical Mission Hospital, Kollam. Ext.A8 would reveal that besides brain concussion he had sustained undisplaced fracture on the base of 4[th] meta tarsal of right foot. In such circumstances, we are of view that it is only proper to take one month as M.A.C.A.No.3548 of 2015 5 the period of loss of earning. True that the appellant had not succeeded in proving the occupation and income. He was aged 39 years on the day of the accident. The accident occurred on 8.12.2011. Reckoning those factors and taking the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** for guidance in the matter of fixation of monthly income, we are inclined to fix the monthly income of the appellant as Rs.5,000/- for the purpose of granting compensation towards loss of earnings. Since we have already fixed the period of loss of earning as one month the appellant would be entitled to get an amount of Rs.5,000/- under the said head. Towards damage to clothing the Tribunal granted only an amount of Rs.500/-. The nature of the injuries would indicate that the dresses worn by him must have been damaged in the accident. In such circumstances, we are inclined to grant Rs.500/- more under that head. Towards pain and suffering the Tribunal granted an amount of M.A.C.A.No.3548 of 2015 6 Rs.10,000/-. Taking note of the nature of the injuries, their impact and the period of convalescence, we are of the view that it is only just and proper to grant an amount of Rs.5,000/- more under that head. It is awarded. No amount was granted by the Tribunal towards loss of amenities. In view of the nature of the injuries revealed from Ext.A8, we are of the view that it is only proper to grant an amount of Rs.10,000/- towards loss of amenities. It is granted. 7. In the light of the aforesaid discussion, the appellant is entitled to get an additional enhanced compensation of Rs.20,500/- (Rupees twenty thousand five hundred only). The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The respondent insurer is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a copy of this judgment. 8. The appeal is filed with a petition to condone delay of 179 days. While condoning the delay by order dated 29.8.2016 in C.M.Appl.No.4277/2015 this court made M.A.C.A.No.3548 of 2015 7 it clear that in case additional compensation is granted ultimately the appellant would not be entitled to claim interest for the above said period. We confirm the same and therefore, for the above said period of 179 days no interest is liable to be paid to the appellant. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/