Jayaseelan v. M.K. Prakasan and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** ## **MACA NO. 153 OF 2015** **AGAINST THE AWARD IN OPMV 463/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANT/PETITIONER:** JAYASEELAN, AGED 39 YEARS S/O.GOVINDAN, NAMATH HOUSE, P.O.KIDANHI, (VIA) PERINGATHUR, KANNUR DISTRICT BY ADV SRI.SATHEESHAN ALAKKADAN ## **RESPONDENTS/RESPONDENTS:** - 1 M.K.PRAKASAN, S/O.GOPALAN, AGE NOT KNOWN, MALAKUTHAZHE KUNIYIL, PERINGATHUR AMSOM, ANIYARAM DESAM, P.O.PERINGATHUR, KANNUR DISTRICT - 2 BIJU AGE NOT KNOWN S/O.GOPALAN, KUNNUMMAL HOUSE, PERINGATHUR AMSOM, ANIYARAM DESAM, P.O.PERINGATHUR, KANNUR DISTRICT. - 3 ORIENTAL INSURANCE CO.LTD. KANNUR -1 BY ADVS. K.S.SANTHI, SC, ORIENTAL INSURANCE COMPANY LTD. DEEPAK MOHAN, RONA ANN SIBY R.PADMARAJ(P-15) P.J.ANTONY JOSEPH MARIADAS(K/158/2003) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.153/15 2 ## **C.JAYACHANDRAN, J** **-----------------------------** **M.A.C.A.No.153 of 2015** **-------------------------------------Dated this the 4[th] day of November, 2022** ## **J U D G M E N T** **1.** In an accident which occurred on 19.06.2005, the appellant/driver of the motor cycle, as also, the pillion sustained injuries, when the motor cycle rammed against a tipper lorry. Both the injured persons preferred claim petitions. The petition preferred by the pillion was settled and O.P(M.V).No.463 of 2006 preferred by the appellant (driver of the motor cycle) resulted in the impugned order. Appellant/petitioner challenges the same essentially on the ground of insufficiency of the compensation amount awarded under various counts. **2.** Heard Adv.Satheesan Alakkadan, learned counsel for the appellant/petitioner and Adv.Rona Ann Siby, M.A.C.A.153/15 3 learned counsel for the third respondent/insurance company. Perused the records. **3.** Learned counsel for the appellant/petitioner submitted that the petitioner was an autorikshaw driver at the relevant time and was aged 35 years. He claimed a monthly income of Rs.6,500/-, whereas the Tribunal awarded only Rs.4,000/-. Ext.A17 is the driving license produced. Besides, the petitioner also mounted the box in support of the income claimed. Per contra, learned counsel for the respondent/insurance company submitted that reasonable income had already been reckoned by the Tribunal. **4.** The notional income pertaining to the year 2005 going by the judgment in **Ramachandrappa** v **. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [2011 KHC 4675] is Rs.5,000/-. This, coupled with the fact that the appellant/petitioner was skillfully employed as a driver, as vouched by Ext.A17 driving license, M.A.C.A.153/15 4 persuades this Court to reckon a sum of Rs.6,000/- as monthly income. It is so ordered. Simultaneous with compensation under this head, this Court finds that the period reckoned for loss of income is also insufficient. The appellant was hospitalized for 37 days. He mounted the box and gave evidence that he could not go for job for a period of one year. Serious injuries have been sustained. Therefore, this Court is of the opinion that a period of 6 months can be reckoned reasonably for loss of income. It is so done. **5.** The next head under which the petitioner/appellant claims enhancement is 'pain and suffering'. Inviting attention of this Court to paragraph no.18 of the impugned award, learned counsel pointed out that the petitioner had suffered type III open fracture both bones requiring left leg lower third skin graft and implant. He was admitted in the hospital for a period of 37 days. Ext.X2 disability certificate certifies a M.A.C.A.153/15 5 disability of 8%. In such circumstances, Rs.25,000/granted towards 'pain and suffering' is on the lower side is the submission of the learned counsel. This Court finds force in the said submission and accordingly, compensation under the head 'pain and suffering' is enhanced to Rs.35,000/-, especially taking into account the nature of the injuries, surgery done, the skin graft and the implant made, requiring 37 days of hospitalization as an inpatient. **6.** The next head canvassed by the learned counsel is with respect to the loss of amenities. It is found that, no amount, whatsoever, is granted by the Tribunal. By virtue of Ext.X2 certificate itself, disability at the rate of 8% is assessed. Coupled with the same, the aspects above referred would persuade this Court to grant a sum of Rs.25,000/- towards loss of amenities. **7.** Although learned counsel for the appellant/petitioner sought for reckoning future M.A.C.A.153/15 6 prospects, this Court is disinclined to grant the same. There is nothing to indicate that the petitioner has been put to a disability, so as to prevent him from doing the job of a driver, which he was doing at the time of accident. Disability certificate to the extent of 8% in Ext.X2 would not automatically vouch the functional disability of the appellant/petitioner, having regard to his avocation. There is no medical evidence to that effect. Therefore, the claim under the head is rejected. **8.** Accordingly, M.A.C.A is allowed. The compensation amount payable to the petitioner/appellant is as shown in the tabular statement herein below. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|Loss of earnings|16,000|36,000<br>[6000x6]| |2|Transport to Hospital|3,000|3,000| |3|Extra Nourishment|5,000|5,000| |4|Damage to Clothing|1,000|1,000| M.A.C.A.153/15 7 |5|Medical Expenses|5,300|5,300| |---|---|---|---| |6|Bystander Expenses|7,400|7,400| |7|Pain and Sufferings|25,000|35,000| |8|Permanent Disability|61,440|92,160<br>[6000x12x16x8]| |9|Loss of Amenities|Nil|25,000| ||Total|1,24,140|209860| |Amount enhanced = Rs.2,09,860/ – Rs.1,24,140/ =**Rs.85,720/**|||| **9** . The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 183 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 30.05.2022 in C.M.A.No.1/2015 in M.A.C.A.153/2015. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and M.A.C.A.153/15 8 amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. **Sd/-** **C.JAYACHANDRAN** **JUDGE** Sbna/