K. R. Santhosh v. Vijayan S/o Sankaranarayanan & A.L. Antony & The New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944** ## **MACA NO. 53 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 342/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/S:** K.R.SANTHOSH AGED 24 YEARS S/O K. RAJAN, KONDAPRAMBIL HOUSE, P.O, KUMARANELLUR, KANJIRAKKODE, WADAKKANCHERY, THALAPPILLY TALUK, THRISSUR DISTRICT BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENT/S:** 1 VIJAYAN S/O SANKARANARAYANAN, APPUTH HOUSE, KONDAZHY, THRISSUR (DRIVER OF KL 8 Y 3530 BUS) 2 A.L. ANTONY S/O LONAPPAN, ALOOR KIZHAKKOOT HOUSDE, KUNDANOOR DESOM, KUNDANNOOR P.O, THALAPPILLY TALUK, THRISSUR (OWNER OF KL 8 Y 3530 BUS) 3 THE NEW INDIA ASSURANCE COMPANY LTD JRJ COMPLEX, OTTAPPALAM POLICY NO 760302/31/08/01/00008802 VALID UP TO 06-08-2018 TO 0508-2009 BY ADV N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No. 53 of 2015 2 ## **C. JAYACHANDRAN, J.** **…...................................... M.A.C.A. No. 53 of 2015** **….............................................................. Dated this the 28[th] day of October, 2022** ## **JUDGMENT** This appeal is preferred by the claimant in O.P.(MV) No.3424/2010 of the MACT, Ottappalam. He met with an accident on 03.03.2009, sustaining serious injuries to his right eye, requiring two surgical corrections. He was an in-patient for 10 days initially, but had to continue treatment until 13.12.2011, when he underwent the second surgery. 2. Heard Sri. Sheji P. Abraham, learned counsel appearing for the appellant/claimant and Sri. N.S. Muhammad Usman, learned counsel for the 3[rd] respondent/Insurance Company. 3. Learned counsel appearing for the appellant submitted that the claimant was a student, aged 20 years, at the time of accident. He used to take tuition to others, thereby earning a monthly income of Rs.6,000/-. As against the above M.A.C.A.No. 53 of 2015 3 claim, the Tribunal reckoned only Rs.2,500/-. Learned counsel argued that even as per the index available in _**Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011)13 SCC 236]**_ , the notional income pertaining to the year 2009 is Rs.6,500/-. The second ground is with respect to the period of loss of earning reckoned by the Tribunal. The Tribunal reckoned only two months, which according to the learned counsel for the appellant is very much on the lower side. Learned counsel pointed out that in respect of an accident which occurred on 03.03.2009, the appellant/claimant had to undergo treatment till 13.12.2011, when his second surgery was proformed. The third ground is with respect to compensation for 'pain and suffering', which the Tribunal reckoned at Rs.20,000/- only. For the same reason that the claimant had to undergo prolonged treatment, including two surgeries on his right eye, learned counsel would seek enhancement under that head. The same is the situation under the head 'loss of amenities', where the Tribunal reckoned only Rs.10,000/-. M.A.C.A.No. 53 of 2015 4 4. The above claims of the appellant were opposed by the learned counsel for the 3[rd] respondent Insurance Company, by maintaining that just and reasonable compensation has already been granted by the Tribunal. 5. Having heard the learned counsel appearing on both sides, this Court will address the claims under the various heads, one by one. The first is with respect to monthly income. Since the claimant was a student a the time of accident, the index for the year 2009 as held in Ramachandrappa (supra) cannot be applied, as such. It is true that no documentary evidence has been adduced by the appellant/claimant in support of his income. However, this Court cannot be oblivious in the fact that a person who claims to take tuition for students can hardly produce any document in support thereof, or for that matter, the income derived therefrom. The claimant mounted the box and spoke about the factum of taking tuition to other students. 6. In the facts and circumstances, although the amount claimed by the appellant/claimant, as such, is not liable to be allowed, this Court is of the opinion that reasonable M.A.C.A.No. 53 of 2015 5 enhancement can be given under the head monthly income by reckoning it at Rs.4,000/-. As regards loss of earning also, this Court is of the opinion that the period of two months reckoned by the Tribunal is on the lower side. As pointed out by the learned counsel for the appellant, the last discharge summary dated 13.12.2011, marked as Ext.A10, would indicate that the appellant/claimant had to undergo treatment for a period more than two months, though intermittently. He was subjected to two surgeries on his right eye. In such circumstances, loss of earnings can be reckoned for a period of five months. The third ground is under pain and suffering. For the reasons already adverted to, the same is liable to be enhanced from Rs.20,000/to Rs.30,000/-, especially in view of the fact that he had to undergo two surgical corrections. The same is the case with respect to the loss of amenities, wherefore, the compensation under that head is enhanced to Rs.20,000/- from Rs.10,000/-. 7. In such circumstances, this MACA is allowed and the compensation amount payable to the appellant/claimant is enhanced as indicated in the tabular statement shown herein. M.A.C.A.No. 53 of 2015 6 |**Sl.**<br>**No.**|**Head of Claim**|**Amount Awarded**<br>**the Tribunal (Rs.)**|**Total amount after**<br>**enhancement in**<br>**appeal (Rs.)**| |---|---|---|---| |1|Loss of earning (total)|5,000|20,000 [4,000 x 5]| |2|Loss of earning (partial)|..|..| |3|Medical and miscellaneous expenses|62,450|62,450| |4|Future treatment|..|..| |5|Personal assistance|2,000|2,000| |6|Transportation expense|2,500|2,500| |7|Extra nourishment|2,000|2,000| |8|Damage to clothing etc.|500|500| |9|Pain and suffering|20,000|30,000| |10|Loss of dependency|..|..| |11|Loss of expectation of life|..|..| |12|Loss of love and affection|..|..| |13|Compensation for future prospects|..|..| |14|Loss of earning power|..|..| |15|Loss of enjoyment and amenities of<br>life|10,000|20,000| |16|Compensation for continuing partial<br>or permanent disability|..|0| |Total||**1,04,450**|**1,39,450**| |**Amount enhanced : 1,04,450 – 1,39,450**|||**= 35,000/-**| M.A.C.A.No. 53 of 2015 7 8. The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. 9. Since there was a delay of 209 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 08.10.2015 in C.M.A.No.1/2015 (C.M.Appl. 60 of 2015) in M.A.C.A.53/2015. (delay) 10. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, M.A.C.A.No. 53 of 2015 8 as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. **Sd/C. JAYACHANDRAN JUDGE** Dxy