Harish E.P. v. Sureg S. Menon & Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 19TH DAY OF DECEMBER 2017 / 28TH AGRAHAYANA, 1939 MACA.No. 2919 of 2015 AGAINST THE AWARD IN OPMV 1553/2012 of M.A.C.T.,ERNAKULAM DATED 25-02-2015 ................... ## APPELLANT/CLAIMANT : HARISH E.P., S/O. PAPPY, AGED 24, ERAYIL HOUSE, NOW RESIDING AT VELIKUNNEL HOUSE, NADAKKAVU P.O., MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.MATHEWS K.PHILIP SMT.MINISHA K DAS RESPONDENTS/RESPONDENTS : 1. SUREG S. MENON, S/O.SURENDRAN, SAKETHAM HOUSE, NEAR SREE NARAYANA HIGH SCHOOL. TRIPUNITHURA P.O., NADAMA VILLAGE, ERNAKULAM 2. REVATHY, ERAYIL HOUSE, THRIPUNITHURA P.O., NADAMA VILLAGE, ERNAKULAM. 3. THE MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, ALAPPUZHA DISTRICT. R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ttb ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ** ## **========================= M.A.C.A. No.2919 of 2015 ========================= Dated this the 19[th] day of December, 2017** ## **J U D G M E N T** **-------------------** ## **Mary Joseph, J** The challenge in this appeal is on the quantum of compensation awarded by the Motor Accident Claims Tribunal, Ernakulam (for short 'the Tribunal') in O.P.(MV) No. 1553 of 2012. The appellant got injured in a motor accident occurred on 25.05.2012 at 3.00 p.m. He was travelling as a pillion rider in a motorcycle bearing Reg.No.KL-39/D.1945 through Poothotta – Thripunithura road and when reached at the eastern side of Puthiyakavu temple the motorcycle was hit by a car bearing Reg. No.KRG-515. The rider of the motorcycle was alleged as caused the accident by driving the same in a rash and negligent manner. The petitioner had sustained injuries and was treated at Medical Trust Hospital, Ernakulam, for a period of 8 days. He had incurred `1,89,546/- as expenses towards treatment. Accordingly, he had filed the claim petition as OP(MV) No.1553/2012 before the Tribunal, seeking a compensation of `5,10,000/-. The rider of the motorcycle, its registered owner and 2 M.A.C.A. No.2919 of 2015 insurer were respectively arrayed as respondent 1 to 3 in the claim petition. The parties to this appeal are referred to hereinafter as the petitioner and the respondent. 2. The petitioner had let in documentary evidence as Exts.A1 to A12. Exts.C1 was also marked as court exhibit. No evidence was let in by the third respondent, who was the only contesting respondent before the Tribunal. 3. After appreciating the documentary evidence let in by the petitioner, the Tribunal had arrived at a compensation of `3,11,980/and awarded the same with interest at the rate of 8% per annum from the date of the claim petition till realisation with proportionate costs. The third respondent was directed to deposit the same within one month from the date on which a copy of the award was received. Contending that the quantum of compensation awarded by the Tribunal is inadequate and unreasonable, the petitioner has approached this Court in the captioned appeal, seeking for enhancement. 4. Smt.Nimisha K. Das and Sri.Mathews Jacob, the respective 3 M.A.C.A. No.2919 of 2015 learned counsel representing the petitioner and the third respondent were heard. 5. According to Smt.Nimisha, the learned counsel, the Tribunal failed to appreciate the evidence adduced by the petitioner in its proper perspective and thereby the compensation awarded turned inadequate and unreasonable. According to her, the petitioner was aged 21 years at the relevant time of accident and was engaged in wood polishing work. It is her further contention that though disability was resulted to the petitioner following the injuries sustained in the accident, the compensation awarded by the Tribunal is on the lower side. The learned counsel has also drawn the attention of this court to the compensation awarded by the Tribunal under the heads, bystander expenses, extra nourishment, damages to clothing and loss of amenities to contend that the compensation awarded under those heads are also disproportionate to the injuries sustained and the treatment undergone by the petitioner. The learned counsel pleaded for an appraisal of the evidence and enhancement of compensation for the reasons. 4 M.A.C.A. No.2919 of 2015 6. Per contra, Sri.Mathews Jacob, on behalf of the third respondent has contended that the Tribunal has correctly appreciated the documentary evidence on record and arrived at reasonable compensation under various heads of compensation. According to him, interference with the impugned award is totally unwarranted. 7. Going by the impugned award, it is seen that the Tribunal had taken `4,000/- as the monthly income. On a scrutiny of the award, it is revealed that cogent materials to establish the job and the monthly income of the petitioner have not been produced and marked in evidence. In the said circumstances that the Tribunal was constrained to take the notional sum of `4,000/- as the monthly income of the petitioner. 8. It is relevant to notice that the petitioner was aged 21 years and sustained injuries in an accident occurred in the year 2012. Therefore, in view of **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236]** the Tribunal is highly unjustified in taking `4,000/- as the monthly income of the petitioner. In **Ramachandrappa's** case, the Apex court has fixed the monthly 5 M.A.C.A. No.2919 of 2015 income of the petitioner therein, who was a coolie worker and met with a motor accident in the year 2004, as `4,500/-. The accident in the case in question being in the year 2012, we feel that, we will be justified in view of **Ramachandrappa's case (Supra)** to take the monthly as `8,000/- and to compute the compensation for loss of earning and disability, based on that. It is evidenced from the impugned award that the Tribunal has considered 4 months as the period for computation of compensation for loss of earning. An idea about the nature of the injuries sustained by the petitioner is obtained from paragraph 9 of the impugned award. It is revealed therefrom that the petitioner had sustained fracture of (Lt) frontal bone and (Lt) frontal extradural haematoma. Petitioner had also undergone Craniotomy and evacuation of EDH. It is also disclosed from the narration in the impugned award that the petitioner had undergone inpatient treatment from 25.5.2012 till 02.06.2012. Viewed in that backdrop, consideration of 4 months' period by the Tribunal for computation of compensation for loss of earning is highly reasonable. But, a re-computation of compensation is 6 M.A.C.A. No.2919 of 2015 necessary, as we have already decided to take `8,000/- as the monthly income of the petitioner. Therefore, in our re-assessment, a sum of `16,000/- will be payable to the petitioner in addition to the amount already awarded by the Tribunal under the head loss of earnings. A scanning of the impugned award would reveal that reasonable compensation has been awarded under the head transportation expenses, extra nourishment and attendant expenses. Therefore, we are declined to interfere with the compensation awarded under those heads. Under the head damages to clothing, though a sum of `1,000/- was claimed, the Tribunal has awarded only `500/-. The said sum being too low, we are inclined to grant `1,000/as claimed by the petitioner under that head. When the monthly income is fixed as `8,000/-, essentially, there would be hike in the compensation payable under the head disability. In our computation of compensation by adopting `8,000/- as the monthly income, a sum of `60,480/- (Rs.8,000/- x 12 x 18 x 7/100) is arrived at and the same will be payable in addition under the head disability. 9. In our computation as above, a total sum of `91,980/- 7 M.A.C.A. No.2919 of 2015 rounded off to `92,000/- is arrived at and accordingly we are inclined to modify the compensation already awarded by the Tribunal as per the impugned award by enhancing the compensation to the extent arrived at by us. Needless to say that the said amount would carry interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. The third respondent, the insurer of the offending vehicle shall deposit the same with interest at the rate as aforesaid, within a period of two months from the date of receipt of a copy of this judgment. No order as to costs. The appeal is allowed as above. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **MARY JOSEPH JUDGE** SKK/ /TRUE COPY/ PS TO JUDGE