Gireesh v. Padmini and Junaid and Reliance General Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939** **MACA.No. 74 of 2012 () ----------------------OPMV. NO.942/2010 OF PRL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE.** **......** **APPELLANT/PETITIONER:** **--------------------------------------** **GIREESH, S/O KESAVAN, AGED 29, THAZHATHAYIL HOUSE, P.O. MELOOR, KOYILANDY, KOZHIKODE.** **BY ADV. SMT.K.V.RESHMI.** ## **RESPONDENTS/RESPONDENTS:** **------------------------------------------------** **1. PADMINI, W/O U.C. RAMAN, PADANILAM HOUSE, PANTHEERPADAM, KUNNAMANGALAM, KOZHIKODE-673 571.** **2. JUNAID, S/O MUHAMMED T.P., PULIKKAL HOUSE, PANTHEERPADAM, P.O. KUNNAMANGALAM, KOZHIKODE-71.** **3. RELIANCE GENERAL INSURANCE-COMPANY LTD. 2ND FLOOR, CITADEL ARCADE, OPP. TAGORE CENTENARY HALL, RC ROAD, KOZHIKODE - 673 011.** **R2 BY ADV. SRI.LAL GEORGE R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA).** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.74 of 2012 **-----------------------------------------------** Dated this the 4[th] day of July, 2017 ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** ## . This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Kozhikode, dated 31.8.2011 in O.P. (MV)No.942/2010, an application filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of injuries sustained by the appellant/claimant in a motor accident which occurred on 8.12.2009. While the appellant/claimant was standing on the side of a public road, he was hit by a motor car bearing registration No.KL-57/6565, owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. As a result of the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of `3,50,000/-. 2. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant. The report of a Medical Board M.A.C.A.No.74 of 2012 :-2-: was marked as Ext.C1. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the motor cycle by the 2[nd] respondent driver. Since the vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent owner. Under different heads, the Tribunal awarded a total compensation of `2,41,075/- and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal with interest at the rate of 7% per annum from the date of petition, i.e., from 5.6.2010 till the date of deposit with a cost of `1,000/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard the arguments of the learned counsel for the appellant/claimant and the learned counsel for the 3[rd] respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of compensation awarded by the Tribunal under M.A.C.A.No.74 of 2012 :-3-: different heads. 7. The accident is of the year 2009 and at the time of the accident, the appellant was aged 28 years. He claimed a monthly income of `9,000/- as a tyre puncture worker. However, no reliable materials were produced before the Tribunal in order to prove his monthly income. He has not chosen to enter the box. In such circumstances, the Tribunal fixed his monthly income notionally at `3,500/-. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13** **SCC 236]** , the Apex Court notionally fixed the monthly income of a coolie, who met with an accident in the year 2004, at `4,500/-. Considering the fact that, in the instant case the accident is of the year 2009 and at the time of accident, the appellant was an able bodied person aged 28 years, we deem it appropriate to re-fix his monthly income notionally at `6,000/- for the purpose of assessing compensation under different heads. 8. The injuries sustained by the appellant, as borne out from Ext.A2 wound certificate are as follows ; “Diffuse cerebral edema, haemorrhagic contusion in bilateral frontal regions and in the left temporal region medial to the temporal bone, fracture L5 vertebra.” Ext.A3 discharge card and Ext.A4 treatment certificate would M.A.C.A.No.74 of 2012 :-4-: show that the appellant had undergone inpatient treatment for a period of 37 days and in Ext.C1 disability certificate, issued by the Medical Board of the Medical College Hospital, Kozhikode, a permanent disability of 25% has been assessed on account of the injuries sustained in the accident. 9. The compensation awarded by the Tribunal under different heads reads thus ; |**Heads of claims**|**Amount**|**Amount**| |---|---|---| ||**claimed**|**allowed **| |1.Transport to hospital|3,000|1,000| |2.Extra nourishment|21,000|1,000| |3.Damage to clothing|2,000|500| |4.Loss of earning|50,000|10,500| |5.Treatment expenses|60,000|13,525| |6.Bystanders expenses|Nil|5,550| |7.Pain and sufferings|30,000|15,000| |8.Continuing Permanent||| |disability/Loss of future||| |earning capacity.|2,00,000|1,89,000| |9.Loss of amenities of life|10,000|5,000| ||---------------------------------|| |Total||2,41,075/-| ||===========|| 10. At the time of accident, the appellant was aged 28 years. Going by the judgment of the Honourable Apex Court in M.A.C.A.No.74 of 2012 :-5-: ## **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT** **802]** proper multiplier applicable to the age group of the appellant is '17' and not '18' as adopted by the Tribunal. Taking the notional monthly income as `3,500/-, applying the multiplier of 18 and the percentage of disability as 25%, the Tribunal awarded a sum of `1,89,000/- under the head 'disability compensation'. Since we have already re-fixed the monthly income of the appellant notionally at `6,000/-, applying the proper multiplier of '17' and taking the percentage of disability as 25%, the compensation payable under this head is re-worked as `3,06,000/- (6,000x12x17x25/100), resulting an additional compensation of ` **1,17,000** /-. 11. Towards 'loss of earning', the Tribunal awarded a sum of `10,500/- (at the rate of `3,500/- for a period of 3 months). Considering the nature of injuries sustained and the treatment the appellant had undergone, we deem it appropriate to grant compensation towards 'loss of earning' for a period of 5 months. Since we have already re-fixed the notional monthly income of the appellant as `6,000/-, the compensation payable under this head would come to `30,000/- (6,000x5), resulting an additional compensation of ` **19,500** /-. M.A.C.A.No.74 of 2012 :-6-: 12. Towards 'extra nourishment' and 'bystander expenses', the Tribunal awarded a sum of `1,000/- and `5,550/- respectively. Since the accident is of the year 2009, the appellant is entitled for compensation under the head 'extra nourishment' at the rate of `100/- and that under the head 'bystander expenses', at the rate of `200/- for 37 days of hospitalisation. As such, the compensation under the head 'extra nourishment' is re-fixed as `3,700/- (100x37), resulting additional compensation of ` **2,700** /-. Similarly, the compensation under the head 'bystander expenses' is re-fixed as `7,400/- (200x37), resulting an additional compensation of ` **1,850** /-. 13. Towards 'damage to clothing', the Tribunal awarded a sum of `500/-. Considering the fact that the accident is of the year 2009, we deem it appropriate to re-fix the compensation under this head as `1,000/-, resulting an additional compensation of ` **500** /-. 14. Towards 'pain and suffering', the Tribunal awarded a sum of `15,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, we deem it appropriate to re-fix the compensation under this head as `25,000/-, resulting an additional compensation of ` **10,000** /-. M.A.C.A.No.74 of 2012 :-7-: 15. Towards 'loss of amenities', the Tribunal had awarded only a meagre sum of `5,000/-. Considering the fact that the injury sustained by the appellant had resulted in a permanent disability of 25%, as certified in Ext.C1, we deem it appropriate to re-fix the compensation under this head at `25,000/-, resulting an additional compensation of ` **20,000** /-. In the result, the appellant will be entitled for a total compensation of ` **1,71,550** /- (1,17,000+19,500+2,700+1,850+ 500+10,000+20,000), which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal, within a period of 2 months from the date of receipt of a certified copy of this judgment. There will be no order as to costs. ## Sd/- ## **C.T.RAVIKUMAR JUDGE** ## Sd/- ## **ANIL K.NARENDRAN JUDGE** ami/6.7.17 //True copy// P.A.to Judge