JISHI A.T. v. Ajesh Kumar, Vinod P.M. and The National Insurance Company Limited

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 4 [ TH ] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ## **`MACA NO. 1493 OF 2013`** ``` AGAINST THE AWARD DATED 08.10.2012 IN OP(MV) NO.1165 OF 2010 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` JISHI A.T., AGED 30 YEARS, S/O.CHANDUKUTTY, RESIDING AT ARANGIL THAHAH HOUSE, NEAR ELATHOOR VILLAGE OFFICE, P.O.ELATHOOR,KOZHIKODE. ``` ``` BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 AJESH KUMAR, S/O.GOPALAKRISHNAN ACHARI, AGE NOT KNOWN, RESIDING AT PAVALASSERIL HOUSE, P.O.KIDANGOOR SOUTH, PALA 686 572.`** - **`2 VINOD P.M, S/O.MONY ACHARI, AGED 36 YEARS, RESIDING AT PAVALASSERIL HOUSE, P.O.KIDANGUR SOUTH P.O., PALA 686 572.`** - **`3 THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE-673 006.`** MACA 1493 of 2013 2 ## **`R3 BY ADV SRI.T.V.AJAYAKUMAR, STANDING COUNSEL`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 1493 of 2013 3 ## **J U D G M E N T** The claimant in OP(MV) No.1165 of 2010 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode, filed this appeal challenging the award on the ground of inadequacy of compensation. 2. The appellant, who was a 30 year old Mechanic, met with a road traffic accident on 24.02.2008 at 3.30 p.m., while he was riding a motorcycle, from Elathur to Puthiyanirathu. He was knocked down by KL-35-8453 car driven by the 2nd respondent, in a rash and negligent manner. He sustained serious injuries including compound comminuted fracture Grade III of both bones of right leg with loss of muscle tissue with exposure of posterior tibial artery and primary optic atrophy of left eye, resulting in permanent disability of 37%. He was earning monthly income of Rs.8,000/- as a Mechanic, and he suffered much loss physically as well as financially, due to the injuries suffered in the accident. So he approached the Tribunal claiming compensation of Rs.8,00,000/-, but learned MACA 1493 of 2013 4 Tribunal awarded only Rs.3,33,288/-. Hence this appeal. 3. The 1st respondent was the owner of the offending car, 2nd respondent was its driver and the 3rd respondent was its Insurer. The 3rd respondent-Insurer admitted the accident as well as the Insurance Policy of the offending vehicle on the relevant date. Learned Tribunal found that the accident occurred due to the rash and negligent driving of the car by the 2nd respondent, and hence the 1st respondent-owner was vicariously liable. Since that vehicle was validly insured with the 3rd respondent, the Insurer was found liable to indemnify the Insured, and thereby to compensate the appellant. 4. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. 5. Heard learned counsel for the appellant and learned counsel for the 3rd respondent-Insurer. 6. Learned counsel for the Insurer would submit that the compensation awarded by the Tribunal is just and reasonable MACA 1493 of 2013 5 and so, it needs no modification, but learned counsel for the appellant would submit that the compensation awarded is too low as the Tribunal fixed notional income of the appellant @ Rs.3,000/-, though he was actually earning monthly income of Rs.8,000/-. 7. True that, there was no evidence to prove the monthly income of the appellant. But learned counsel for the appellant would rely on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , to say that, even if he was considered as a coolie worker, he was eligible to get his notional income fixed @ Rs.6,500/- as the accident was in the year 2008. Based on that decision, this Court is inclined to fix his notional income @ Rs.6,500/-. 8. Learned Tribunal assessed loss of earning for six months @ Rs.3,000/-. Since we have fixed his notional income @ Rs.6,500/-, for six months’ period, he is eligible to get Rs.39,000/- (6,500x6) as loss of earning. After deducting MACA 1493 of 2013 6 Rs.18,000/- already awarded by the Tribunal, he is entitled to get the balance amount of Rs.21,000/-. 9. Towards extra nourishment, learned Tribunal awarded only Rs.2,000/-. The appellant was hospitalised for 22 days and even after discharge, he was not able to resume his normal life, for about six months. So this Court is inclined to award Rs.1,000/- more towards extra nourishment. 10. Towards bystander expenses, learned Tribunal awarded only Rs.150/per day, for the period of hospitalisation. Since the accident was in the year 2008, this Court is inclined to give bystander expenses @ Rs.250/- per day. If so for 22 days of hospitalisation, he is entitled to get enhancement of Rs.2,200/- towards bystander expenses. 11. Towards pain and suffering, this Court is inclined to award Rs.10,000/- more, considering the nature of injuries suffered and also the period of hospitalisation. 12. Towards disability compensation, the appellant is entitled to get Rs.4,90,620/-, taking his monthly income as MACA 1493 of 2013 7 Rs.6,500/- and accepting his disability as 37% as reported by the Medical Board in Ext.C1 certificate (6,500x12x17x37/100). After deducting Rs.2,26,440/- already awarded by the Tribunal, the appellant is entitled to get the difference of Rs.2,64,180/as enhanced compensation for disability. 13. Towards loss of amenities, learned Tribunal awarded only Rs.5,000/- against his claim of Rs.25,000/-. The appellant was a 30 year old man at the time of accident. Ext.C1 Disability Certificate issued by the Medical Board of Medical College Hospital, Calicut, shows that there was 20% loss of right ankle ROM and there was partial difficulty in squatting. There was primary optic atrophy on his left eye and so the total percentage of permanent disability was assessed as 37%. Considering that aspect, this Court is inclined to award Rs.25,000/- as claimed by the appellant under the head ‘loss of amenities’. After deducting Rs.5,000/- already awarded, he is entitled to get the balance amount of Rs.20,000/- under the head ‘loss of amenities’. MACA 1493 of 2013 8 14. The compensation awarded by the Tribunal 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.18,000/-|Rs.39,000/-|Rs.21,000/-| |Extra nourishment|Rs.2,000/-|Rs.3,000/-|Rs.1,000/-| |Bystander<br>expenses|Rs.3,300/-|Rs.5,500/-|Rs.2,200/-| |Pain and suffering|Rs.25,000/-|Rs.35,000/-|Rs.10,000/-| |Compensation for<br>permanent<br>disability|Rs.2,26,440/-|Rs,4,90,620/-|Rs.2,64,180/-| |Loss of amenities|Rs.5,000/-|Rs.25,000/-|Rs.20,000/-| |Total|||**Rs.3,18,380**/-| 15. In the result, the appellant is entitled to get enhanced compensation of Rs.3,18,380/-. 16. The 3rd respondent-Insurer is directed to deposit enhanced compensation of Rs.3,18,380/- (Rupees Three Lakh Eighteen Thousand Three Hundred and Eighty only), with 7% MACA 1493 of 2013 9 interest per annum, from the date of petition till the date of deposit, (excluding 40 days of delay in filing the appeal) before the Principal Motor Accidents Claims Tribunal, Kozhikode, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting his liabilities, if any, towards tax, balance court fee, legal benefit fund etc. The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-