Jose alias Abraham A.V. v. New India Assurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 ``` ## `MACA NO. 620 OF 2020` ``` AGAINST THE AWARD IN OPMV 100/2018 OF MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL , TALIPARAMBA ``` ## `APPELLANT/PETITIONER:` ``` JOSE ALIAS ABRAHAM A.V. AGED 60 YEARS S/O.VARGHESE, AIKKARAYIL HOUSE, KOOVERI AMSOM, CHAPPARAPADAVU P.O., THALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670 571. ``` ``` BY ADV M.R.JAYALATHA ``` ## `RESPONDENT/3RD RESPONDENT:` ``` NEW INDIA ASSURANCE COMPANY LTD. REP BY ITS BRANCH MANAGER, 1215, NAVRANG HOUSE, 21 KG MARG, NEW DELHI - 110 001 (POLICY NO.98000031170305624679). ``` ``` BY ADV SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 620 OF 2020 ``` ``` 2 ``` ## `JUDGMENT` ``` While the appellant was walking on a public road on 03.09.2017, he was knocked down by the offending vehicle driven in a rash and negligent manner and he sustained severe injuries, including fracture of his right femur and head injury. He was hospitalized for nearly 132 days, enduring prolonged treatment; and thus filed OP(MV)No.100/2018 before the Motor Accidents Claims Tribunal, Thaliparamba (“Tribunal” for short), seeking compensation to an extent of Rs.15,00,000/- but which has been awarded only to a sum of Rs.5,85,166/-. The appellant impugns the compensation as being inadequate. ``` ``` 2.Smt.M.R.Jayalatha – learned counsel for the appellant, pointed out that the notional income adopted by the Tribunal in favour of her ``` ``` MACA NO. 620 OF 2020 ``` ``` 3 ``` ``` client is only Rs.8,000/-, though he had claimed Rs.10,000/- per month. She added that, going by injuries suffered by him, the compensation of Rs.60,000/- for “Pain and Suffering” is unfair and illogical; adding that much more ought to have been granted under the head “Loss of Amenities” also. She thus prayed that this appeal be allowed. ``` ``` 3.In response, Sri.P.Jacob Mathew – ``` ``` learned counsel for the Insurance Company, argued that the computations adopted by the Tribunal are without error and thus prayed ``` ``` that this appeal be dismissed. ``` ``` 4.I have examined the afore rival ``` ``` contentions of the parties and have tested them ``` ``` on the worth of the evidence on record – copies ``` ``` of which have been made available to this Court by the learned counsel for the parties across ``` ``` MACA NO. 620 OF 2020 ``` ``` 4 ``` ``` the Bar, with the express consent that they can be acted upon, without dispute. ``` ``` 5.While computing the compensation under the head “Permanent Disability, the income of the appellant is required to have been assessed. The Tribunal has taken the same to be Rs.8,000/-, but without citing any cogent reason. As per Ramachandrappa v. Manager, Royal ``` ``` Sundaram Alliance Insurance Company Limited. ``` ``` [(2011) 13 SCC 236],the minimum amount that ought to be reckoned in the case of a person with unascertainable income in the year of 2017 ``` ``` – when the accident occurred - is Rs.11,000/-; and since the appellant claimed Rs.1,000/- lesser than that, said figure ought to have been adopted. I cannot find the reckoning of the notional income in such case to be correct. ``` ``` 6.Coming to the question of compensation ``` ``` MACA NO. 620 OF 2020 ``` ``` 5 ``` ``` under the head “Pain and Suffering”, the medical evidence on record, particularly Ext.A2 – Wound Certificate, disclose that the appellant ``` ``` suffered the following injuries: ``` **==> picture [353 x 100] intentionally omitted <==** **==> picture [354 x 28] intentionally omitted <==** ``` 7.Further, Ext.A3 series, Ext.A14 - Medical ``` ``` Certificate, Ext.A15 – Discharge Certificate ``` ``` would show that he was admitted in different ``` ``` hospitals for a total of 132 days; and reckoning ``` ``` this, the learned Tribunal has awarded him “Loss ``` ``` of Earnings” for a period of six months. Though I ``` ``` do not propose to revise this, except for the purpose of enhancing it taking into account the actual income, because the appellant had ``` ``` MACA NO. 620 OF 2020 ``` ``` 6 ``` ``` approached the learned Tribunal within five months after the injury; the compensation awarded under the head “Pain and Suffering”certainly requires to be increased substantially. I am persuaded to do so because the accident left the appellant with head injury and fracture of his ``` ``` femur and had to undergo great stress and trauma ``` ``` due to this. I, therefore, propose the compensation under the head “Pain and Suffering” to be Rs.1,20,000/-. ``` ``` In the afore circumstances, this appeal is ``` ``` partly allowed in the following manner: ``` ``` a)Thecompensationforcontinuing ``` ``` permanent disability is enhanced to Rs.1,62,000/- from Rs.1,29,600/- awarded by the Tribunal, reckoning the notional income of the appellant to be Rs.10,000/- per month. ``` ``` b)Axiomatically, the compensation under the ``` ``` MACA NO. 620 OF 2020 ``` ``` 7 ``` ``` head “Loss of Earnings” is enhanced to ``` ``` Rs.60,000/-, from Rs.48,000/-, again reckoning the income of the appellant to be Rs.10,000/- per month. ``` ``` c) The compensation under the head “Pain and Suffering” is enhanced to Rs.1,20,000/- from Rs.60,000/- now awarded by the Tribunal. ``` ``` In all other heads, the compensation awarded ``` ``` by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellants would be ``` ``` entitled to recover the compensation, as enhanced ``` ``` by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% (modifying the rate of interest to 9% granted by the Tribunal, in view of the escalation granted by this Court) from the date of filing of the claim until it is realised. ``` ``` MACA NO. 620 OF 2020 ``` ``` 8 ``` ``` However, while calculating the interest, the period of 860 days - being the delay caused by the appellant in filing this appeal - shall stand excluded. ``` ``` The appellants will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ## `JUDGE` ``` SAS ```