K. Praveen Kumar v. K. Bhasker, Devadas and Oriental Insurance Co. Ltd.

1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`P RESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` TUESDAY, THE 26 TH DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 ``` ``` MACA NO. 979 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 25.01.2008 IN OPMV NO.1075 OF 2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD ``` ## **`APPELLANT/PETITIONER:`** ``` K.PRAVEEN KUMAR S/O. KUNHIRAMAN, AGED 35 YEARS, RESIDING AT ANAND, AISWARYA, 8/444, AKSHARA NAGBAR, KARINGARAPULLY(P.O.), PALAKKAD TALUK, PALAKKAD DISTRICT. ``` ``` BY ADV SRI.T.K.SANDEEP ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 K.BHASKER S/O. T. DEVADASAN NAIR, AMMINI NIVAS, MUNDOOR.P.O., PALAKKAD-678592.`** ``` 2 DEVADAS AGED 36 YEARS ``` ``` S/O. A.C. KUNCHAN, NADAKAVU HOUSE, AKATHETHARA.P.O., PALAKKAD-678001. ``` ``` 3 THE ORIENTAL INSURANCE CO. LTD. JASEELA COMPLEX, NILAMBUR ROAD, MANJERI-676121. ``` ``` BY ADVS. SRI.P.JAYARAM SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 979 of 2014 2 ## **J U D G M E N T** ``` This appeal is at the instance of the petitioner in OP(MV)No.1075 of 2002 on the file of Motor Accidents Claims Tribunal, Palakkad, challenging the award on the ground of inadequacy of compensation. ``` ``` 2. On 27/6/2002, the appellant/petitioner who was pillion riding KL-9/B 6669 motorcycle was knocked down by KL-9/K-1990 bus driven by the 2nd respondent in a rash and negligent manner. He was thrown down, and he sustained serious injuries including Diffuse head injury, and multiple fractures of left humerus, ribs, ulna etc. He was admitted and treated in hospital for 21 days.He was ``` ``` a computer businessman earning monthly income of Rs.5,000/-. He lost his job and income for a considerable period, and he suffered permanent ``` MACA 979 of 2014 3 ``` disability of 20% due to the injuries suffered in the accident. He approached the Tribunal claiming compensation of Rs.10 lakh, but the Tribunal awarded only Rs.2,04,624/-, and hence this appeal. ``` ``` 3. The 1 st respondent was the owner of the offending bus, and the 2 nd respondent was its driver on the date of accident. The 3rd respondent is the insurer. The 3rd respondent admitted the accident as well as the insurance policy. ``` ``` 4. Now this Court is called upon to find out whether there is any irregularity, illegality and 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 appellant would` MACA 979 of 2014 4 ``` submit that, learned Tribunal arbitrarily fixed monthly income of the appellant @ Rs.2,750/- ignoring Exhibit A27 salary certificate. Exhibits A19 and A20 documents were there to show that, he was qualified in computer applications, and Exhibit A27 salary certificate was there to show that he was drawing monthly salary of Rs.4,100/-. Even going by the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951], as the accident was in the year ``` ``` 2002, even a coolie could have got his notional income fixed @ Rs.3,500/-. Since the appellant was ``` ``` qualified in computer applications, and he was working with a salary of Rs.4,100/- as stated in Exhibit A27, this court is inclined to fix his notional income @ Rs.4,000/-, in spite of the fact, ``` ``` the person who issued Exhibit A27 was not examined ``` MACA 979 of 2014 5 ``` to prove that document. ``` ``` 7. The petitioner suffered Diffuse head injury, fracture left humerus, fracture ribs 6,7 & 8 and also fracture ulna. He was hospitalized for 21 days, and even after discharge, he was on treatment ``` ``` as stated by learned counsel for the appellant. So loss of earning can be assessed for a period of six months. If so he is entitled to get Rs.24,000/-, towards loss of earning. Learned Tribunal awarded ``` ``` Rs.2,750/-, towards loss of earning, and so the appellant is entitled to get the balance amount of Rs.21,250/- as enhanced compensation, towards loss of earning. ``` ``` 8. Towards disability compensation, the ``` ``` appellant was relying on Exhibit A26 disability certificate which shows that, the appellant had ``` ``` suffered 20% disability. The Doctor who issued ``` MACA 979 of 2014 6 ``` Exhibit A26 was examined as PW2. Though the Doctor deposed before court that, the said disability was with respect to whole body it was not stated in Exhibit A26 certificate. Learned Tribunal found that the appellant was having difficulty breathing, emotional disturbance, and behavioral impairment. Taking into account all those aspects, learned Tribunal accepted his permanent disability to the extent of 15%. The appellant was a 32 year old man having expertise in computer applications, and due to the injuries suffered by him including head injury, he lost his emotional balance, and he developed emotional disturbances and behavioral impairment. In such circumstances, this court is inclined to take his disability as 18%. The multiplier applicable is 16 as he was aged 32. But by mistake learned Tribunal applied the multiplier ``` MACA 979 of 2014 7 ``` as 17%. So the compensation for permanent ``` ``` disability taking his monthly income as Rs.4,000/- disability as 18% and multiplier as 16, could be assessed as Rs.1,38,240/- (4000x12x16x18/100). He was already awarded Rs.84,150/- towards disability compensation. So he is entitled to get the balance amount of Rs.54,090/- towards enhanced compensation for permanent disability. ``` ``` 9. Towards transportation expenses, learned ``` ``` Tribunal awarded only Rs.8,000/-, though the appellant produced taxi vouchers and bus tickets amounting to Rs.10,198/-. When the appellant could ``` ``` produce the taxi vouchers and bus tickets, it was ``` ``` not fair from the part of the Tribunal to insist for examination of the persons who issued those vouchers. So, this Court is inclined to give an addition of Rs.2,000/-, towards transportation ``` MACA 979 of 2014 8 ``` expenses. ``` ``` 10. Towards extra nourishment, learned Tribunal awarded only Rs.2,000/- though the appellant was hospitalized for 21 days with multiple fractures. Even after discharge he was undergoing treatment. ``` ``` In such circumstances, this Court is inclined to award Rs.2,000/- more towards extra nourishment. ``` ``` 11. Towards pain and suffering, learned Tribunal awarded Rs.20,000/-. Considering the nature of injuries, period of hospitalization etc. this Court is inclined to award Rs.5,000/- more, towards pain and suffering. ``` ``` 12. Towards disfiguration, learned Tribunal ``` ``` found that, the appellant suffered disfiguration due to injuries sustained in the accident, and awarded Rs.5,000/-. The appellant was a 32 year old ``` MACA 979 of 2014 9 ``` man and learned counsel for the appellant would say that he was bachelor. So the disfiguration may badly affect his marriage prospects also. So this Court is inclined to award Rs.5,000/-, more, towards compensation for disfiguration. ``` ``` 13. Towards loss of amenities and enjoyment in life, learned Tribunal awarded only Rs.3,000/-. Exhibit A26 disability certificate will show that the appellant was a 32 year old young man having expertise in computer applications. He suffered difficulty in raising weight and even emotional ``` ``` disturbance and behavioural impairment due to that ``` ``` accident. Considering that aspect this Court is inclined to award Rs.7,000/- more, towards loss of amenities in life. ``` ``` 14. The enhanced compensation awarded in this appeal is stated in the table below:- ``` MACA 979 of 2014 10 |Head of claim|Amount<br>awarded by the<br>Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |---|---|---|---| |Loss of earnings|2,750/-|24,000/-<br>(4,000x6)|21,250/-| |Disability|84,150/-|1,38,240/-|54,090/-| |Transportation<br>expenses|8,000/-|+ 2,000/-|2,000/-| |Extra<br>nourishment|2,000/-|+2,000/-|2,000/-| |Pain and<br>suffering|20,000/-|+5,000/-|5,000/-| |Disfiguration|5,000/-|+5,000/-|5,000/-| |Loss of amenities|3,000/-|+7,000/-|7,000/-| |TOTAL 96,340/-|||| ||||| ``` 15. So the appellant is entitled to get the enhanced compensation of Rs.96,340/- ``` ``` (21,250+54,090 + 2000 + 2000 + 5000 + 5000 + 7000) as enhanced compensation. ``` ``` 16. The 3 rd respondent/insurer is directed to deposit the enhanced compensation in the bank ``` MACA 979 of 2014 11 ``` account of the appellant, with interest @ 7.5% per annum, from the date of petition till the date of deposit (excluding 2163 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. ``` ``` The appeal is allowed to the extent as above, and no order is made as to costs. ``` `Sd/-` **SOPHY THOMAS, JUDGE** ska