# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE N.NAGARESH**
**WEDNESDAY,THE 24TH DAY OF JUNE 2020/3RD ASHADHA,1942 MACA.No.2182 OF 2012**
**AGAINST THE AWARD DATED 17-07-2012 IN OP(MV)**
**NO.1295/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR**
## **APPELLANT/PETITIONER:**
**K.BABU,S/O.KUNJAN,RESIDING AT THARANGATTU HOUSE,PAZHANJJI, VELIYAMKODU,PONNANI,MALAPPURAM DISTRICT.**
**BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD**
## **RESPONDENTS/RESPONDENTS:**
**1 BALAN,S/O.RAMANKUTTY,RESIDING AT PULKULANGARA HOUSE, CHELAKKARA, THRISSUR – 680 586. 2 SATHEESH,S/O.MAYAN,RESIDING AT MATTUVAZHI, KARAPATTA HOUSE, PUTHUKODE, PALAKKAD-678 687. 3 NATIONAL INSURANCE COMPANY LIMITED, KOLLANNUR, DEVASSY SMARAKA BUILDING, ROUND NORTH, THRISSUR-680 001. R3 BY ADV. SRI.K.B.RAMANAND**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
~ ~ ~ ~ ~ ~ ~ ~ ~
_**Dated this the 24[th] day of June, 2020**_
Petitioner-claimant in OP(MV) No.1295/2005 of the Motor Accidents Claims Tribunal, Thrissur is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 17.07.2012 of the Tribunal.
2. In his OP(MV) filed under Section 166 of the Motor Vehicles Act, 1988, the appellant stated that on 03.04.2005 while the appellant was riding motorcycle bearing No.KL-10S-4609, a jeep bearing No.KL11A-7906 owned by the 1[st] respondent and driven by the 2[nd] respondent in a rash and negligent manner hit appellant's
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motorcycle, consequent to which the appellant sustained serious injuries. The same jeep hit another motorcycle driven by the petitioner in OP(MV) No.1292/2005 also. Both the cases were tried jointly.
3. The owner and driver of the jeep remained _ex parte_ . The 3[rd] respondent-insurer filed written statement admitting policy coverage, but stated that the accident occurred due to the rash and negligent driving by the appellant. The appellant produced Exts.A1 to A13 documents and the 3[rd] respondent produced Ext.B1 copy of insurance policy.
4. The Tribunal, on appreciation of evidence, held that the accident was as a result of negligent driving by the driver of the jeep. The Tribunal fixed notional monthly income of the appellant as ₹2,500/- and whole body disability of the appellant at 6%. Adopting multiplier as 17, the Tribunal awarded compensation of ₹79,050/- under the following heads:-
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|**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**Claimed**<br>**(in Rs.)**|**Amount**<br>**Awarded**<br>**(in Rs.)**|
|---|---|---|---|
|1.|Loss of earnings|24,000|12,000|
|2.|Transportation|3,000|2,000|
|3.|Extra Nourishment|2,000||
|4.|Damages to clothings and articles|1,000||
|5.|Medical Expenses|15,000|5,124|
|6.|Funeral Expenses|||
|7.|Future Treatment Expenses|||
|8.|Bystander Expenses|4,500|1,200|
|9.|Pain and Sufferings|25,000|12,000|
|10.|Loss of dependency||36,720|
|11.|Loss of estate|||
|12.|Permanent disability|40,000||
|13|Loss of earning power|40,000||
|14.|Loss of amenities|20,000|10,000|
||**Total**<br>(Limited to/Rounded to)|1,74,500|79,044<br>**79,050**|
Interest at the rate of 8% per annum from the date of the OP(MV) was also awarded. Aggrieved by the low amount of compensation awarded, the appellant has preferred this appeal.
5. The counsel for the appellant argued that the appellant was 28 years old and was by avocation a Coconut Climber, at the time of accident. He suffered 12% disability
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consequent to the injuries. He was earning ₹4,000/- per month. But, the Tribunal arbitrarily fixed his income at ₹3,000/- and granted compensation treating his disability as 6% only. The fixation of lower amount of notional income and percentage of disability, has substantially reduced the compensation amount awarded. The Tribunal did not award any compensation towards extra nourishment or damage to clothing. Compensation awarded for bystander expenses and loss of amenities, are much on a lower side. The amount of total compensation granted by the Tribunal is therefore liable to be reworked, contended the learned counsel for the appellant.
6. The learned Standing Counsel for the 3[rd] respondent, on the other hand, argued that the appellant did not produce any evidence of his income and hence, the Tribunal was justified in fixing the income as ₹3,000/- per month. In the facts of the case, the functional disability of 6% fixed by the Tribunal is also appropriate. The Tribunal
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has granted compensation for medical expenses for the entire amount for which the bills were produced. Compensation granted under other heads, is also just and proper, contended the learned Standing Counsel for the 3[rd] respondent-insurer.
7. I have heard the learned counsel for the appellant and learned Standing Counsel for the 3[rd] respondent.
8. There is no dispute as to the fact that the appellant is a Coconut Climber by avocation and he is selfemployed. Going by the guidelines given by the Hon'ble Apex Court in the judgment in _**Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [(2011) 13 SCC 236],_ the notional income of a manual labourer, who cannot produce any proof of income, should normally be fixed above ₹4,500/-. The claim of the appellant was that his monthly income is ₹4,000/-. Therefore, the Tribunal ought to have accepted the said figure while fixing the appellant's monthly income. Granting 40% increase
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towards future prospects, appellant's notional income should be fixed as ₹5,600/- for calculating disability compensation.
9. As regards the percentage of functional disability, the occupation of the appellant and the nature of permanent disability suffered by the appellant are important. The appellant is a Coconut Climber. He suffered injury of post traumatic central cord syndrome with cervical cord stenosis. At the time of examination by the Department of Orthopaedics, Government Medical College, Thrissur on 08.05.2012, the appellant was suffering weakness of upper and lower limb and numbness of lower limb. Both these physical complaints would indeed affect his avocation seriously. The conclusion of the Doctor is that the appellant has permanent disability for whole body, of 12%, as per Mc Brides test. Considering the fact that the appellant is a Coconut Climber, the occupational disability of the appellant would be much more. The functional disability of the
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appellant, if he opts for any other manual work involving physical strain, would also be higher than 6% assessed by the Tribunal. This Court therefore hold that the functional disability of the appellant resulting in loss of future income should be taken as 12%.
10. With the afore findings, when the compensation amounts awarded by the Tribunal are viewed, the compensation towards loss of earnings of `12,000/awarded by the Tribunal, is liable to be enhanced to `16,000/-. The appellant will be entitled to additional compensation of ` **4,000/-** under this head.
11. The Tribunal has not granted any compensation towards extra nourishment, to which appellant is entitled to. The appellant was treated as in-patient for 8 days. Therefore, the appellant is held entitled to a compensation of ` **800/-** towards extra nourishment. The appellant is also held entitled to ` **750/-** towards damages to clothing and articles. The Tribunal has granted bystander expenses of
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## `1,200/- which is just and reasonable.
12. An amount of `12,000/- has been awarded by the Tribunal towards pain and suffering. When the appellant was examined on 08.05.2012, as is evidenced by Ext.A8, he was still suffering from weakness and numbness of upper and lower limbs. Therefore, it would only be appropriate that the compensation of `12,000/- towards pain and sufferings granted by the Tribunal is enhanced to `18,000/-. The appellant therefore, would be eligible for additional compensation of ` **6,000/-** towards pain and suffering.
13. The Tribunal has granted `36,720/- towards loss of dependency. Going by the calculations made by the Tribunal in the Award, it is evident that this amount is actually awarded towards permanent disability/loss of earning power. Taking into account the increase made by this Court in notional income and percentage of functional disability of the appellant, the appellant will be entitled to `1,37,088/- (`5,600 x 12 x 17 x 12/100) towards permanent
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disability/loss of earning power. An amount of `36,720/- has already been granted by the Tribunal. Therefore, the appellant will be entitled to ` **1,00,368/-** under the head.
14. Though the counsel for appellant sought enhancement of compensation towards loss of amenities, this Court finds that the amount of `10,000/- granted by the Tribunal under this head is just and proper.
15. In view of the facts and findings made hereinabove, it is declared that the appellant will be entitled to additional compensation `1,11,918/-, under the following heads:
|(i)|Additional compensation towards loss of earning|`4,000/-|
|---|---|---|
||(`4000 x 4 minus `12,000 already awarded by||
||Tribunal)||
|(ii)|Compensation towards extra nourishment|`800/-|
|(iii)|Compensation towards damage to clothing|750/-|
|(iv)|Additional compensation towards pain and suffering|`6,000/-|
||(`18,000/- minus`12,000/- already awarded by the||
||Tribunal)||
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- (v) Additional compensation towards permanent disability `1,00,368/resulting in loss of earnings (`1,37,088 minus `36,720/- already awarded by the Tribunal under the head 'dependency')
Total `1,11,918/-
The third respondent is directed to pay ` **1,11,918/-** towards additional compensation with interest at the rate of 8% per annum from the date of OP(MV), within three months.
MACA is allowed in part.
Sd/- **N. NAGARESH, JUDGE**
aks/22/06/2020
