Kanakaraj v. The Manager, New India Assurance Company

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 MACA NO. 63 OF 2020** **OPMV NO.1231 OF 2009 OF FIRST ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM APPELLANT/APPLICANT:** **KANAKARAJ AGED 46 YEARS S/O. THANKAPPAN, NAVEEN NIVAS, THANNIVILA, VEDIVACHANKOVIL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-695 501.** **BY ADVS. R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH** ## **RESPONDENT/ADDITIONAL 3RD RESPONDENT:** **THE MANAGER NEW INDIA ASSURANCE COMPANY, SWEDESHABHIMANI COMPLEX, NEAR K.S.R.T.C. BUS STAND, NEYYATTINKARA, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695 121.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 63 OF 2020 **==> picture [31 x 8] intentionally omitted <==** ## JUDGMENT The appellant is the claimant in OP(MV) No.1231 of 2009 on the file of the First Additional Motor Accidents Claims Tribunal, Thiruvananthapuram, a petition filed under Section 166 of the Motor Vehicles Act, 1998, claiming a sum of Rs.7,00,000/- as compensation for the injuries sustained by him in a motor accident. 2. The case of the appellant was that on 28.04.2006 at 12.15 am, while he was riding a Kinetic Honda scooter, a motorcycle bearing Reg.No.KL 01 AL 5206 hit on the back side of the scooter driven by him, in which he sustained serious injuries including head injury. He alleged that the accident took place on account of the negligence of the rider of the offending vehicle, the first respondent before the tribunal, who was set ex parte. The respondent insurer filed a written statement, challenging the occurrence of the accident and contending that the compensation claimed is excessive and exorbitant. MACA NO. 63 OF 2020 **==> picture [31 x 8] intentionally omitted <==** 3. Before the tribunal, the evidence consisted of oral testimony of PWs 1 and 2, and documentary evidence of Exts.A1 to A15 on the side of the appellant/claimant. No evidence was adduced by the respondents. The tribunal, after considering the rival contentions, held that the accident took place on account of the negligence of the rider of the offending vehicle and awarded a sum of Rs.2,39,000/- as compensation under different heads. Having regard to the fact that the insurer had not pleaded or proved breach of policy conditions and the policy of insurance being admitted, the respondent insurer was directed to satisfy the award. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellant claims enhancement mainly under the following heads; 5.1. Notional Income - The learned counsel for the appellant submits that the tribunal has fixed the notional monthly income of the appellant at Rs.5,000/-, but, as per the MACA NO. 63 OF 2020 **==> picture [31 x 8] intentionally omitted <==** decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the notional monthly income of the appellant ought to have been fixed at Rs.5,500/-. However, the learned Standing Counsel for the respondent insurer points out that the appellant claimed only Rs.5,000/- as his monthly income and therefore, the notional monthly income fixed by the tribunal is just and proper. On a perusal of the records, it is seen that the appellant had claimed only an amount of Rs.5,000/- as his monthly income. Though as per the decision in Ramachandrappa (supra), the notional monthly income of the appellant ought to have been taken as Rs.5,500/-, the appellant himself is the best person to assess his monthly income, who had admitted his monthly income as Rs.5,000/-. Hence, I do not find any reason to enhance the notional monthly income arrived at by the tribunal. 5.2. Loss of earnings - Though the appellant claimed loss of earnings for a period of ten months, the tribunal awarded loss of earnings only for a period of four months totaling to Rs.20,000/-. Ext.A5 certificate shows that he had MACA NO. 63 OF 2020 **==> picture [31 x 8] intentionally omitted <==** head injury, right frontal contusion and brain oedema. The petitioner is a coolie and for working as a coolie his whole body ability should be better. On a consideration of the injuries sustained by the appellant and the fact that he is a coolie, I am of the opinion that seven months would be appropriate to be considered for loss of earnings, instead of four months. Thus, the appellant will be entitled to get an additional compensation of Rs.15,000/- towards loss of earnings. 5.3. Pain and suffering - The learned counsel for the appellant submits that though the appellant claimed Rs.50,000/- towards pain and suffering, the tribunal awarded only Rs.10,000/-. It is seen that the appellant was hospitalized for a period of 14 days and had to continue treatment further on account of the injuries sustained in the accident. On a perusal of Annex.A5, most of the injuries were on his head and also he had issues with his right arm. Considering the injuries sustained by him, I am inclined to grant an amount of Rs.25,000/- to the appellant as compensation towards pain and suffering. Thus, the appellant will be entitled to get an MACA NO. 63 OF 2020 **==> picture [31 x 8] intentionally omitted <==** additional amount of Rs.15,000/- as compensation towards pain and suffering. 5.4. Permanent disability - The learned counsel for the appellant submits that though the appellant claimed before the tribunal an amount of Rs.4,00,000/- towards permanent disability, only an amount of Rs.1,80,000/- was awarded, which is on the lower side. Annex.A15 Disability Certificate issued by the Medical Board of the Medical College, Thiruvananthapuram, shows that the appellant sustained a partial permanent disability of 40% due to optic atrophy (RE), however, it does not disclose as to the whole body disability. Since there is permanent disability, future prospects can be considered to be 10% considering his age as he was only 37 years at the time of the accident. Thus, following the decisions reported in National Insurance Co.Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)] and Sarla Varma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], the appellant will be entitled to get a compensation of Rs.2,70,000/- (5,000 x 12 x 15 x 30%) towards permanent disability. Hence, there will be an enhancement of Rs.90,000/- under the head of permanent MACA NO. 63 OF 2020 ..7.. disability. 5.5. Mental shock, shortened expectations in life, loss of amenities etc. - Though the appellant claimed an amount of Rs.2,00,000/- under this head, the tribunal awarded only an amount of Rs.20,000/-, which, according to the appellant, is on the lower side. Considering the injuries sustained by the appellant and the sufferings that the appellant might have undergone, I deem it appropriate to award a compensation of Rs.40,000/- under this head. Thus, the appellant will be entitled to get an additional amount of Rs.20,000/- towards Mental shock, shortened expectations in life, loss of amenities etc. 6. Thus, the impugned award of the tribunal is modified as follows; |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>by the<br>tribunal<br>(in Rs.)|Modified<br>in appeal<br>(in Rs.)|Total<br>compensation| |---|---|---|---|---|---| |1.|Loss of earning|50000/-|20000/-|15000/-|35000/-| |2.|Transport to<br>hospital|5000/-|2000/-|-|2000/-| MACA NO. 63 OF 2020 ..8.. |3.|Damage to<br>clothing etc.|5000/-|1000/-|-|1000/-| |---|---|---|---|---|---| |4.|Extra<br>nourishment|5000/-|3000/-|-|3000/-| |5.|Cost of<br>medicine|100000/-|Not<br>allowed|-|-| |6.|Pain and<br>suffering|50000/-|10000/-|15000/-|25000/-| |7.|Bystander|5000/-|3000/-|-|3000/-| |8.|Permanent<br>disability|400000/-|180000/-|90000/-|270000/-| |9.|Compensation<br>for loss of<br>earning power|20000/-|Not<br>allowed|-|-| |10.|Compensation<br>for future<br>treatment|25000/-|Not<br>allowed|-|-| |11.|Compensation<br>for mental<br>shock,<br>shortened<br>expectations in<br>life, loss of<br>amenities in<br>life etc.|200000/-|20000/-|20000/-|40000/-| ||Total|865000/-<br>Claim is<br>limited to<br>700000/-||140000/-|379000/-| Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of MACA NO. 63 OF 2020 **==> picture [31 x 8] intentionally omitted <==** Rs.1,40,000/- (Rupees one lakh and forty thousand only) over and above the compensation awarded by the tribunal with interest @ 7% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs before the tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. However, it is made clear that the enhanced compensation will not carry interest for the period of delay of 214 days in filing the appeal. Sd/- SHOBA ANNAMMA EAPEN JUDGE bka/-