Jayaprakash v. Abdul Latheef Saidaly; Afsal; The Oriental Insurance Co. Ltd.; Ramesh Babu; The United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` WEDNESDAY, THE 3 [ RD ] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 ``` ``` MACA NO. 321 OF 2013 ``` ``` AGAINST THE AWARD DATED 28.04.2012 IN OPMV NO.2383 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` JAYAPRAKASH, S/O.MADHAVAN, NEDUMTHOTTIYIL HOUSE, KURIACHIRA P.O., POOLAKKAL, THRISSUR DISTRICT. ``` ``` BY ADV SRI.DILIP J. AKKARA ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 ABDUL LATHEEF SAIDALY, 403/GARDEN GATE APARTMENTS, GANDHI NAGAR, KOCHI, ERNAKULAM - 682 014.`** - **`2 AFSAL, S/O.MUHAMMEDKUTTY, VALIYIL VEEDU, PILLAKKOTTU, POOKKOTT, THOZHIYOOR P.O., THRISSUR.`** - **`3 THE ORIENTAL INSURANCE CO.LTD., KOCHI 682 016.`** - **`4 RAMESH BABU, S/O.RAMAKRISHNAN, THAZHATHUPARAMBIL HOUSE, KURIACHIRA P.O., POOLAKAL, THRISSUR- 680 006.`** MACA 321 of 2013 2 ## **`5 THE UNITED INDIA INSURANCE CO.LTD.,`** ``` ROUND NORTH, PARK HOUSE, THRISSUR- 680 001. ``` ``` BY ADVS. ``` ``` SRI.LAKSHMANAN T J, SC, THE UNITED INDIA INSURANCE CO.LTD. SRI.P.V.JYOTHI PRASAD,SC, THE ORIENTAL INSURANCE CO.LTD. SRI.S.SACHITHANANDA PAI, SC, THE ORIENTAL INSURANCE CO.LTD. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 321 of 2013 3 ## **J U D G M E N T** This appeal is filed by the petitioner in OP(MV)No.2383 of 2007 on the file of Motor Accidents Claims Tribunal, Thrissur, challenging the award on the ground of inadequacy of compensation. 2. The appellant, while travelling pillion in KL-8/AB-1171 motorcycle, through Kunnamkulam-Thrissur Public Road, KL-7/AR-888 Qualis car driven by the 2nd respondent dashed against the motorcycle, and the appellant fell down on the road, and sustained Type-III open fracture of both bones of left leg middle third with extensive laceration. He was admitted and treated in hospital for 102 days in total. He suffered permanent disability also due to the injuries suffered in the accident. He approached the Tribunal claiming compensation of Rs.4,00,000/-. But learned Tribunal awarded only Rs.2,16,990/-. Hence this appeal. 3. The 1st respondent is the owner of the Qualis car, 2nd respondent is its driver and the 3rd respondent is its Insurer. The 4th respondent is the owner-cum-rider of the motorcycle, MACA 321 of 2013 4 in which the appellant was the pillion rider, and the 5th respondent is the Insurer of the motorcycle. 4. Respondents 1, 2 and 4 remained _ex parte_ before the Tribunal. Respondents 3 and 5 contested the case, but they admitted the policy. 5. Learned Tribunal found that the accident occurred due to the negligence of Respondents 2 and 4, and since they contributed equally to the accident, both were found liable to compensate the appellant in equal share. That finding of the Tribunal is not challenged either by the 3rd respondent or by the 5th respondent, and hence that finding has become final. 6. In the appeal also, respondents 1, 2 and 4 did not appear. Respondents 3 and 5 entered appearance through counsel, and admitted policy of the vehicles involved in the accident. 7. Now this Court is called upon to find out whether there is any illegality, irregularity or impropriety in the award passed by the Tribunal, warranting interference by this Court. 8. Heard learned counsel for the appellant and learned MACA 321 of 2013 5 counsel for respondents 3 and 5. 9. Learned counsel for the appellant is challenging the quantum of compensation awarded by the Tribunal. According to him, the appellant was a 28 year old headload worker, earning monthly income of Rs.6,000/-. Learned Tribunal fixed his notional income @ Rs.3,000/-. But no amount was awarded towards loss of earning. True that, being a headload worker, he may not have any documents to prove his monthly income. But relying on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR** **2011 SC 2951]** , even a Coolie worker was eligible to get his notional income fixed @ Rs.5,500/- in the year 2006. So, this Court is inclined to fix his notional income @ Rs.5,500/-. 10. The appellant was hospitalized for 102 days. Learned counsel for the appellant would say that there was hospitalisation on 8 different occasions. The last in the series was in the year 2008. Considering these aspects, this Court is inclined to take his loss of earning for a period of 12 months. @ Rs.5,500/- per month, he is eligible to get Rs.66,000/- MACA 321 of 2013 6 towards loss of earning. 11. Towards transportation expenses, though his claim was Rs.10,000/- only, Rs.2,000/- was awarded by the Tribunal. He was admitted in hospital 8 times, and every time, he may have to meet transportation expenses. So this Court is inclined to award Rs.5,000/- towards transportation expenses. Deducting Rs.2,000/- already awarded, he is entitled to get the balance amount of Rs.3,000/- as enhancement in transportation expenses. 12. Towards extra nourishment, though Rs.5,000/- was claimed, no amount was awarded by the Tribunal. He was hospitalised for 102 days with Type-III open fracture of both bones of left leg with extensive laceration, and even after discharge, he was continuing the treatment. So, this Court is inclined to award Rs.5,000/- towards extra nourishment as prayed for by the appellant. 13. Towards damage to clothing, Rs.500/- is given, as the Tribunal did not give any amount under that head. 14. Towards bystander expenses, learned Tribunal awarded MACA 321 of 2013 7 Rs.15,300/-. Since he was hospitalised for 102 days, and even after discharge, he was continuing his treatment, this Court is inclined to give bystander expenses for 150 days @ Rs.150/per day. So, he is entitled to get Rs.22,500/-. After deducting Rs.15,300/- already awarded, he is entitled to get the balance amount of Rs.7,200/- under the head ‘bystander expenses’. 15. Towards pain and suffering, though his claim was Rs.50,000/-, learned Tribunal awarded only Rs.15,000/-. Considering the nature of injuries suffered by the appellant and the period of hospitalisation on 8 different occasions, this Court is inclined to award Rs.10,000/- more towards pain and suffering. 16. Towards loss of amenities, learned Tribunal awarded Rs.10,000/- only. Considering the nature of injury and the disability noted in Ext.A8 disability certificate such as shortening of left leg, wasting of muscles, loss of flexion of left knee etc. etc., this Court is inclined to award Rs.5,000/- more towards loss of amenities. 17. Ext.A8 disability certificate shows that the appellant MACA 321 of 2013 8 had suffered whole body disability of 28.2%. That certificate was not issued by any Medical Board, and the Doctor, who issued the same was not examined also. So, learned Tribunal accepted the disability to the extent of 16%, and this Court finds no reason to vary the same. We have fixed his notional income @ Rs.5,500/-. The multiplier applicable is 17 as he was aged only 28. So his disability compensation can be assessed as Rs.1,79,520/(5,500x12x17x16%). After deducting Rs.1,03,680/- already awarded by the Tribunal, the appellant is entitled to get the balance amount of Rs.75,840/-. 18. Compensation awarded under all other heads seems to be reasonable, and hence it needs no modification. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|…..|Rs.66,000/-|Rs.66,000/-| |Transportation<br>expenses|Rs.2,000/-|Rs.5,000/-|Rs.3,000/-| |Extra nourishment|….|Rs.5,000/-|Rs.5,000/-| |Damage to<br>clothing|….|Rs.500/-|Rs.500/-| MACA 321 of 2013 9 |Bystander<br>expenses|Rs.15,300/-|Rs.22,500/-|Rs.7,200/-| |---|---|---|---| |Pain and suffering|Rs.15,000/-|Rs.25,000/-|Rs.10,000/-| |Loss of amenities|Rs.10,000/-|Rs.15,000/-|Rs.5,000/-| |Compensation for<br>permanent<br>disability|Rs.1,03,680/-|Rs.1,79,520/-|Rs.75,840/-| |Total|||Rs.**1,72,540**/-| 19. In the result, the appellant is entitled to get enhanced compensation of Rs.1,72,540/- (66,000 + 3,000 + 5,000 + 500 + 7,200 + 10,000 + 5,000 + 75,840). 20. As already stated, learned Tribunal fixed the liability to compensate the appellant, equally on Respondents 3 and 5. Since that finding is not under challenge, they are liable to pay the enhanced compensation also to the appellant, in equal share. 21. In the result, respondents 3 and 5 are directed to deposit the enhanced compensation of Rs.1,72,540/- (Rupees One Lakh Seventy Two Thousand Five Hundred and Forty only), in the ratio 50:50, with interest @ 8% per annum, from the date of the petition till the date of deposit, (excluding 123 days MACA 321 of 2013 10 of delay in filing the appeal), within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/ 62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-