Jijeesh N.S v. Shaju George and Cholamandalam MS General Insurance Co. Ltd.

_**MACA. No.969/2017**_ _**1**_ **==> picture [57 x 57] intentionally omitted <==** # **`2025:KER:17456`** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR TUESDAY, THE 18[TH] DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946 MACA NO. 969 OF 2017 ``` ``` AGAINST THE AWARD DATED 07.10.2016 IN OPMV NO.171 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA ``` ## **`APPELLANT/PETITIONER:`** ``` JIJEESH N.S S/O.SANKARAN, 29 YEARS, CHAKKITTAPARA P.O., KOYILANDY TALUK, KOZHIKODE DISTRICT. ``` ``` BY ADV SRI.SANTHARAM.P ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SHAJU GEORGE, S/O.GEORGE, PARATHALAKKAL HOUSE, MARUMANNIL, KAYANNA P.O., PERAMBRA, KOYILANDY TALUK, KOZHIKODE-673001. ``` ``` 2CHOLAMANDALAM MS GENERAL INSURANCE CO.LTD. 2ND FLOOR, DARE HOUSE, 2 NSC BOS ROAD, CHENNAI, TAMILNADU, PIN-600001. ``` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**MACA. No.969/2017**_ _**2**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17456`** ## J U D G M E N T Dated this the 18[th] day of February, 2025 The petitioner in O.P.(M.V.) No171/2013 on the file of the Motor Accident Claims Tribunal, Vatakara. is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 4.8.2012. According to the petitioner, on 4.8.2012 at about 6.30 p.m., while he was riding a motor cycle, a tipper lorry bearing registration No. KL 56D 7749 driven by the 1[st] respondent in a rash and negligent manner hit against he motor cycle and as a result of which he fell down and sustained serious injuries. 3. The 1[st] respondent is the driver cum owner and the 2[nd] respondent is the insurer of the lorry. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. 4. The insurance company filed a written statement, admitting the _**MACA. No.969/2017**_ _**3**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17456`** accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the documentary evidence Exts.A1 to A8, and C1. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.2,96,712/- rounded to Rs.2,96,720/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the_ _Tribunal is just and reasonable?_ 9. Heard Sri.P. Santharan, the learned Counsel appearing for the petitioner/appellant, and Sri. Jacob Mathew, the learned Standing Counsel for the 2[nd] respondent. 10. The Point: In this case the accident as well as valid policy of the offending vehicle are admitted. One of the contentions raised by the learned _**MACA. No.969/2017**_ **==> picture [57 x 57] intentionally omitted <==** _**4**_ ## **`2025:KER:17456`** counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as Meter reader, earning Rs.15,000/- per month, but the Tribunal fixed his monthly income at Rs4,500/- The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable as he was not a permanent employee. 11. It is true that the petitioner could not prove his income, as claimed in the OP. However from Ext.A3 salary certificate, it is proved that the petitioner was a meter reader by profession. As per the dictum laid down by the Hon’ble Supreme Court in the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [2011 (13) SCC 236], the notional income of a coolie, in the year 2012 will come to Rs.8,500/- Therefore, the notional income of the petitioner is fixed at Rs.8,500/-, for the purpose of computing the loss of disability. 12. In the accident the petitioner sustained the following injuries: _“5x5 cm lacerated wound over the proximal arm right side with moderate contamination and partly injured muscle prolapsing out of the wound. Features of fracture proximal humerus was noted on the right side. He also had crush avulsion creating a distally based skin flap over the elbow region extending in to the forearm exposing the common_ _**MACA. No.969/2017**_ _**5**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17456`** _flexor origins with interact narrow skin bridge over the olecranon region. He had posterior interosseous nerve palsy on the right hand and the wound in the right forearm was massively contaminated. Abrasive injury was noted in the right upper leg with puncture wound and tenderness in the tibial condyle. He had ecchymosis over the right eye and a swelling in the right periorbital region.”_ 13. As per Exhibit C1 disability certificate the petitioner suffered 8.5% permanent physical disability. It was issued by the medical board. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, I do not find any grounds to disbelieve the same. Therefore, the permanent physical disability of the petitioner is accepted as 8.5%, as fixed by the Tribunal. 14. On the date of accident, the petitioner was aged 26 years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 17, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to _**MACA. No.969/2017**_ _**6**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17456`** Rs.2,06,346/- 15. Towards loss of earning, the tribunal has awarded Rs.27,000/being the income for 6 months @Rs.4,500/-. Since the notional income of the petitioner is re-fixed at Rs.8,500/-, towards loss of earning he is entitled to get a sum of Rs.51,000/-(8500x6months) 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.20,000/-. Towards 'loss of amenities of life' Rs15,000/- was awarded and towards 'extra nourishment' no amount was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 17. The petitioner sustained serious injuries in the accident and was treated as inpatient for 15 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life' and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.50,000/-, Rs.30,000/- and Rs.5,000/- respectively. 18. No change is required, in the amounts awarded on other heads, as _**MACA. No.969/2017**_ _**7**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17456 ``` the compensation awarded on those heads appears to be just and reasonable. 19. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.4,99,028/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|27,000/-|51,000/- (8500x6)| |2|Transportation|1750/-|1750/-| |3|Medical expenses|1,44,432/-|1,44,432/-| |4|Bystander expenses|10500/-|10,500/-| |5|Pain and suffering|20,000/-|50,000/-| |6|Loss of amenities|15,000/-|30,000/-| |7|Extra nourishment|Nil|5,000/-| |8|Compensation for disability|78,030/-|2,06,346/-| ||**Total**|2,96,712 rounded to<br>**2,96,720/-**|**499028/-**| ||Enhanced Rs.202,308/-||| 20. In the result, this Appeal is allowed in part, and Respondent No.2 is directed to deposit a total sum of Rs.4,99,028/- (Rupees four lakh ninety nine thousand twenty eight only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal, from the date of the petition till deposit/realisation, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%). _**MACA. No.969/2017**_ _**8**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17456 ``` 21. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/C. PRATHEEP KUMAR, JUDGE sou.