K. Unnikrishnan v. United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 MACA NO. 1809 OF 2012 ``` ``` AGAINST THE AWARD DATED 10.01.2012 IN O.P.(M.V) NO.445/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA ``` ## **`APPELLANT/PETITIONER:`** ``` K.UNNIKRISHNAN, AGED 37 YEARS S/O. KUTTANEZHUTHACHAN, KARUVANTHODY HOUSE, KADALMADU POST, VADUVANCHAL, WAYANAD DISTRICT. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENT/RESPONDENT NO.3:`** ``` THE BRANCH MANAGER, THE UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, RAWTHER BUILDING, NEAR PINANGODE ROD JUNCTION, MAIN ROAD, KALPETTA 673 121. ``` ``` BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1809 of 2012 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 04[th] day of November, 2022 ``` This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Kalpetta (for short 'the Tribunal') on 10.01.2012 in O.P (M.V.) No.445/2007. The petitioner before the Tribunal is the appellant herein. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondent No.3 in accordance with their status in the Original Petition. 2. The petitioner had sustained injuries in a motor accident occurred at 5 pm on 29.04.2007 when a Motorcycle bearing Registration No.KL 12A 3619 in which he was travelling was dashed by a Jeep bearing Registration No.KL 10A 3089 at Chullidyode. Alleging that the accident was occurred due to the rash and negligent driving of the Jeep by its driver and claiming a sum of Rs.5,00,000/- as compensation the above Original Petition was filed before the Tribunal. The driver, owner and insurer were arrayed as respondents 1 to 3 in the Original ``` M.A.C.A.No.1809 of 2012 ``` ``` 3 ``` Petition seeking compensation. Though served with notice 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and accordingly they were declared ex parte. The 3[rd] respondent insurer had filed a written statement admitting insurance coverage of the vehicle at the relevant time of accident. Contentions were also raised to the effect that the 1[st] respondent was not rash and negligent in driving the Jeep and was not responsible for the accident, that the rider of the motorcycle has caused the accident to occur by his rash and negligent riding and that the amount claimed as compensation is exorbitant and without any basis. 3. Before the Tribunal oral evidence was not adduced by the parties. Exts.A1 to A3 series, A4 to A7, A8 series, A9 series, A10, X1 and C1 were marked in evidence by the petitioner. A certificate was also produced by the petitioner but was marked subject to proof for failure of the petitioner to examine the person who issued it. The Tribunal appreciated the evidence on record and arrived at a finding that the motor accident was occurred due to the rash and negligent driving of ``` M.A.C.A.No.1809 of 2012 ``` ``` 4 ``` the Jeep by its driver, who was arrayed as the 1[st] respondent in the Original Petition. The Tribunal has also found that the petitioner had sustained injuries in the motor accident and therefore, is entitled to get compensation from the respondents for the injuries sustained in the motor accident. It arrived at a sum of Rs.3,02,340/- as the compensation payable. The 3[rd] respondent was directed to deposit the said sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. Aggrieved by the quantum arrived at as compensation, the petitioner is now before this Court challenging the impugned award. 4. It is contended by Smt.Celine Joseph, the learned counsel for the petitioner that the monthly income of the petitioner was fixed by the Tribunal on the lower side, and thereby the compensation arrived at turned unjust and disproportionate. According to her, though the petitioner claimed to be a Conductor in a bus and having Rs.7,500/- as his monthly income and produced Ext.A11 salary certificate in proof, the Tribunal failed to fix the monthly income certified as ``` M.A.C.A.No.1809 of 2012 ``` ``` 5 ``` such. Instead, the Tribunal fixed Rs.3,000/- as the monthly income notionally and computed the compensation payable on its basis. The learned counsel has sought for consideration of a modified sum as monthly income proportionate to fixation of it notionally in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [ (2011) 13 SCC 236]. 5. The learned counsel has also pointed out that the inpatient treatment of the petitioner continued for 94 days and though convinced of that the Tribunal failed to award just and reasonable compensation under the heads bystander expenses and extra nourishment. The Tribunal has awarded only Rs.9,400/- under each heads by taking Rs.100/- per day for 94 days. The learned counsel seeks for a modification of the amount granted as compensation under those heads. It is further contended that the award of compensation under the heads pain and suffering and loss of amenities and enjoyments in life also fall on the lower side. The learned counsel canvassed for interference and modification of the compensation stand granted under the above heads. It is also ``` M.A.C.A.No.1809 of 2012 ``` ``` 6 ``` pointed out that the petitioner had inpatient treatment in three spells in different hospitals but the Tribunal awarded only Rs.2,000/- as compensation for transportation expenses. The learned counsel has also pointed out that though a claim for future treatment expenses is made before the Tribunal, it failed to award any sum as compensation. 6. True that the petitioner claimed in the Original Petition that he was working as a Conductor in a bus and earning Rs.7,500/- monthly, he failed to mount the box to depose those aspects. A certificate was produced and attempted to be marked in evidence but, since the signatory was not examined, the Tribunal did not receive it in evidence. However, the Tribunal adopted fixation of monthly income on notional basis. The sum fixed being Rs.3,000/- and the year in which motor accident occurred being 2007, this Court is inclined to modify it to Rs.6,000/-. The Tribunal has considered a period of six months’ for assessment of compensation towards loss of earning. When compensation for loss of earning is refixed with the modified factors as above, Rs.36,000/-is ``` M.A.C.A.No.1809 of 2012 ``` ``` 7 ``` arrived at. The sum stands awarded by the Tribunal when adjusted in the sum now arrived at, the petitioner will get Rs.18,000/- as additional compensation. 7. In Ext.C1, the Medical Certificate issued by the Medical Board associated with District Hospital, Mananthavady, 32% was assessed as the permanent disability of the petitioner. The Tribunal assessed compensation for permanent disability on the basis of the assessment in Ext C1 itself. Since the monthly income is refixed as Rs.6,000/-, undoubtedly there will be a hike in the compensation payable under the head disability and Rs.3,91,680/- [Rs.6,000/- x 12 x 17 x 32/100] is arrived at. When the sum already awarded by the Tribunal is credited, the petitioner will get Rs.1,95,840/- as additional compensation. 8. This Court finds that Rs.15,000/- stands awarded by the Tribunal as compensation towards pain and suffering is too low and is inclined to enhance it to Rs.40,000/- and thereby the petitioner will get Rs.25,000/as the additional compensation. Towards bystander expenses and extra nourishment, the Tribunal had awarded Rs.9,400/- each as ``` M.A.C.A.No.1809 of 2012 ``` ``` 8 ``` compensation and this Court is inclined to modify the daily sum payable as Rs.150/- and when the compensation payable is reassessed on it’s basis, Rs.14,850/- each is arrived at. The sums stand awarded, when adjusted in the sums now arrived at, the petitioner will get Rs.5,450/- each as additional compensation under those heads. Under the head transportation expenses, the sum stands awarded being Rs.2,000/-, this Court is inclined to modify it to Rs.8,000/- and therefore, the petitioner will get Rs.6,000/- as additional compensation. Under the head damages to clothing, this Court is inclined to award Rs.500/- more. Under the head, loss of amenities and enjoyments in life the Tribunal has awarded Rs.5,000/- and it being low, this Court is inclined to modify it to Rs.15,000/- and therefore, the petitioner will get Rs.10,000/as additional compensation. 9. In the above manner of reassessment, the petitioner will get a sum of Rs.2,66,240/- (Rupees Two lakhs sixty six thousand two hundred and forty only) as total additional compensation. The said sum will carry interest at the rate of ``` M.A.C.A.No.1809 of 2012 ``` ``` 9 ``` 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The sole respondent in the appeal and the 3[rd] respondent before the Tribunal, being the insurer shall deposit the aforesaid sum with interest fixed on it as above and also the sum already stands awarded by the Tribunal (if not already paid), within a period of two months from the date on which a certified copy of this judgment is received by it. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB