:{

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIA, 1944 ``` ``` MACA NO. 587 OF 2012 ``` ``` AGAINST THE AWARD DATED 19.07.2011 IN OP(M.V)NO.1336/2006 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` SHAKKEER, S/O. HASSAN, MADHAVI QUARTERS, KAINATTY JUNCTION, VADAKARA, KOZHIKODE. BY ADV SMT.K.V.RASHMI ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1BIJU, S/O.BALAN, THIRUMANGALATH HOUSE, CHOROD POST, KAINATTY, KOZHIKODE-673 106. 2PAVITHRAN, S/O. KELAPPAN, NECHANIYIL HOUSE, EDAKKAD POST, WEST HILL, KOZHIKODE-673 005. 3THE NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE, SILVER PLAZA BUILDINGS, INDIRA GANDHI ROAD, KOZHIKODE-673 001. 4DEEPA, D/O. NANU, THEKKATHIL HOUSE, MERIKUNNU POST, PERINGATHUR, THALASSERY, KOZHIKODE-673 675. 5THE UNITED INDIA INSURANCE CO. LTD. NARAYANAPURAM, THALASSERY, KANNUR-670 101. R5 BY ADV SRI.P.K.MANOJ KUMAR, SC SRI.JOHN JOSEPH VETTIKAD ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.587 of 2012 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 25[th] day of October, 2022`** This appeal is filed challenging an award passed by II[nd] Additional Motor Accidents Claims Tribunal, Kozhikode (for short 'the Tribunal') on 19.07.2011 in O.P(M.V) No.1336/2006. The appellant is the petitioner before the Tribunal. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and the respondents 1 to 3 and supplemental respondents 4 and 5 in accordance with their status in the Original Petition. 2. The petitioner had sustained injuries at about 6 pm on 04.11.2005 when a bus bearing Registration No. KL-13-H2077 hit on the motor cycle in which he was travelling as pillion rider, at Peruvattilthazhe. Immediately after the accident he was rushed to Asha Hospital, Vatakara and was shifted to Medical College Hospital, Kozhikode. He was treated as inpatient for 57 days. He had undergone two operations, ``` M.A.C.A.No.587 of 2012 ``` ``` 3 ``` one for putting implants and the other for removal of it. He allegedly was a Fitter aged 19 years and getting Rs.6,000/- as monthly income. Alleging that the accident was occurred due to the rash and negligent driving of the bus by its driver and seeking for a sum of Rs.6,00,000/- as compensation the Original Petition was filed before the Tribunal. 3. When the Original Petition seeking compensation was filed, the 1[st] respondent was arrayed as the registered owner of the vehicle and the 3[rd] respondent as its insurer. Based on the contention raised in the written statement filed by them, the real owner of the bus and its insurer were arrayed as additional 4[th] and 5[th] respondents. 4. The 3[rd] respondent has filed written statement contending that the bus was insured with United India Insurance Company Ltd., Narayanapuram, Thalassery in the name of one Mrs.Deepa, D/o. Nanu, that the accident was occurred due to collision between the motor cycle and the bus, that the rider of the motorcycle was not holding a valid driving license to ride it and that the compensation claimed is ``` M.A.C.A.No.587 of 2012 ``` ``` 4 ``` excessive. Other respondents failed to file written statements before the Tribunal. 5. Oral evidence was not adduced by both parties to the Original Petition. Exts.A1 to A13, Ext.C1 and Ext.X1 were marked on the side of the petitioner. The respondents did not adduce evidence. On appreciation of the evidence adduced, the Tribunal found that the driver of the bus has caused the motor accident by his rash and negligent driving. The Tribunal also found that the petitioner is entitled to get compensation from the respondents for the injuries sustained in the motor accident and arrived at Rs.1,74,556/- as the compensation payable. The additional 5[th] respondent being the insurer of the bus was directed to deposit the amount arrived at as compensation in favour of the petitioner. 6. Smt.Rashmi K V, the learned counsel for the petitioner has contended that the Tribunal is unjustified and erred in assessing the compensation for loss of earning and permanent disability on the basis of the monthly income fixed by it as Rs.2,000/-. According to her, despite raising a claim ``` M.A.C.A.No.587 of 2012 ``` ``` 5 ``` that the petitioner was having a monthly income of Rs.6,000/-, the petitioner failed to mark any cogent materials to establish it. In the above circumstances that the Tribunal had fixed Rs.2,000/- notionally as his monthly income and arrived at the compensation on its basis. 7. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] the Apex Court has taken Rs.4,500/- as the monthly income in the year 2004 and therefore a proportionate sum having due regard to the year of accident is reasonable to be taken. The accident in the case on hand being occurred in the year 2005, Rs.5,000/- is a reasonable sum to be considered as the monthly income. 8. It is noticed from the discussion in the impugned award based on the documentary evidence that the petitioner had sustained Grade III B compound communited sub condylar and inter condyler fracture of (L) femur and communited fracture of (L) patella with crush injury (L) knee with bone exposed and crushed (15x10x8cm). Another lacerated wound ``` M.A.C.A.No.587 of 2012 ``` ``` 6 ``` of 5x3x2cm was also caused on his chin. He had underwent two operations, one for fixation of nailing and other for removal of it. He was treated as inpatient for 57 days. Taking into account of all those aspects this Court is inclined to take 6 months period for assessment of compensation for loss of earning. When reassessment is done based on the modified monthly income of Rs.5,000/- and the period for which that was lost as 6 months, the petitioner will get Rs.30,000/-. Rs.8,000/- awarded by the Tribunal, when deducted from the aforesaid sum, the petitioner will get Rs.22,000/- additionally under the head loss of earning. 9. Towards transportation expenses and extra nourishment, the Tribunal had awarded only Rs.1,500/- each. This Court is inclined to modify each to Rs.3,000/- so that the petitioner will get Rs.1,500/- additionally under each heads. Under the head damages to clothing the amount awarded by the Tribunal being Rs.500/-, Rs.500/- more is awarded. Under the head pain and suffering the Tribunal had awarded only Rs.20,000/- against the claim of Rs.30,000/-. In ``` M.A.C.A.No.587 of 2012 ``` ``` 7 ``` consideration of the nature of the injuries sustained and the treatment availed for that, this Court finds it reasonable to grant Rs.40,000/- and therefore, the petitioner will get Rs.20,000/- as additional compensation under that head. Under the head loss of amenities the amount awarded by the Tribunal being Rs.5,000/-, this Court is inclined to grant Rs.20,000/-. Therefore, Rs.15,000/- is payable additionally under that head. The compensation for disability was assessed by the Tribunal by fixing the monthly income notionally as Rs.2,000/-. In the reassessment with the modified monthly income of Rs.5,000/-, a sum of Rs.3,24,000/- is payable. Rs.1,29,600/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.1,94,400/- additionally under that head. 10. In the above reassessment and modification, the petitioner will get Rs.2,54,900/- (Rupees Two Lakhs Fifty four thousand Nine hundred only) as additional compensation. The said amount would carry interest at the rate of 7.5% per annum from the date of the Original Petition till the date of ``` M.A.C.A.No.587 of 2012 ``` ``` 8 ``` realisation. Additional 5[th] respondent being the insurer of the offending vehicle shall deposit the sum arrived at now with interest at the rate of 7.5% per annum from the date of the petition till the date of realisation and the original sum stands granted by the impugned award with interest (if not paid till date) within a period of two months from the date on which a copy of this judgment is received by it. 11. It is noticed that 136 days’ delay was occurred in filing the appeal on hand, and therefore, the additional 5[th] respondent is exempted from paying interest for the period. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB