K.M. Noufal v. Radhikarishnan B., Ananda Raj K., Reliance General Insurance Co. Ltd. (MACA No. 1889 of 2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940** **MACA.No. 1889 of 2013** **AGAINST THE AWARD IN OPMV 389/2009 OF THE MACT, VADAKARA** ## **APPELLANT/PETITIONER** ## **K.M. NOUFAL, AGED 19 YEARS,** **S/O.MOHAMMED, RESIDING AT K.M.HOUSE, AASHARITHAZHA KUNIYIL, MEMUNDA P.O., VILLIAPALLAY VILLAGE, MEMUNDA DESOM, VATAKARA TALUK, PIN-673104.** **BY ADVS.SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU** ## **RESPONDENTS/RESPONDENTS:** ## ***1. RADHIKARISHNAN B.** **S/O.BHASKARAN PANICKER, AGE NOT KNOWN, RESIDING AT KRISHNA BHAVAN, CHAKKUVARAKKAL P.O., KOTTARAKKARA VIA, KOLLAM DISTRICT, PIN-691506. (DELETED)** ## ***2. ANANDA RAJ K.** **S/O.KARUNAKARAN G., RESIDING AT CHARUVILA VEEDU, CHETHADY, CHENGAMANAD P.O., PULAMON, KOLLAM DISTRICT, PIN-691531. (DELETED)** ## **3. RELIANCE GENERAL INSURANCE CO.LTD.** **570 RECTIFIER HOUSE, NAIGAUM CROSS ROAD, WADALA (W) P.O., MUMBAI, PIN-400 031.** **R3 BY ADV. SRI.K.B.RAMANAND - STANDING COUNSEL** ***RESPONDENT NO.1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 21.2.2017 IN I.A NO.593/2017** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ab** ## **K.HARILAL, J. ----------------------------------------------M.A.C.A No.1889 of 2013 -----------------------------------------------** Dated this the day 11[th] of April, 2018 ## **J U D G M E N T** The appellant is the claimant/petitioner in O.P. (MV)No.389/2009 of the Motor Accidents Claims Tribunal (hereinafter referred to as 'the Tribunal'), Vadakara. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the bodily injuries suffered by him in a road traffic accident. He claimed an amount of 26,00,000/- as₹ compensation, but, the Tribunal passed the impugned award, granting 8,38,800/- only as compensation. This₹ appeal has been filed challenging the inadequacy of the quantum of compensation determined under various heads of claim. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent. 3. It is mainly contended that the monthly income determined by the Tribunal is very low and the quantum of M.A.C.A No.1889 of 2013 2 compensation, determined under the heads of pain and sufferings, loss of amenities and permanent disability, is inadequate in view of the grievous nature of the injuries suffered by him and the degree of disability arose therefrom. On the other hand, the learned counsel for the respondent Insurance Company advanced arguments to justify the quantum of compensation fixed under the aforesaid heads of claim. According to the learned counsel for the Insurance Company, there is no scope for any further enhancement, in view of the evidence available on record. 4. The point tobe considered is, can the Tribunal be justified in fixing the monthly income of the petitioner and determining the quantum of compensation granted under the heads of pain and sufferings, loss of amenities and permanent disability? It is not disputed that at the time of the accident, the petitioner was aged 19 years. According to him he was conducting an automobile shop and earning more than ₹8,000/- per month as the partner of the automobile shop. In order to prove the conduct of the business and earnings therefrom, he has produced Ext.A1 FI statement wherein it is stated that he has been conducting an automobile shop. Except Ext.A1 there is no reliable evidence to prove the exact M.A.C.A No.1889 of 2013 3 ## income of the petitioner per month. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company** **Limited [(2011) 13 SCC 236]** the Hon'ble Supreme Court held that in the case of an accident occurred in the year 2004, ₹3,500/- to 4,500/- can be taken as monthly notional income,₹ in the absence of any other convincing evidence to show the exact income of the petitioner. In the instant case the accident occurred in the year 2008. In the above view, though the Tribunal is justified in taking a notional income, the Tribunal is not justified in fixing the monthly income at ₹4,500/-. Consequently, the monthly income of the petitioner would stand enhanced to 6,500/-, considering the long lapse₹ of four years after 2008. Thus the petitioner is given 26,000/-₹ to his loss of earnings (₹6,500/- x 4). 5. The petitioner was aged 19 years only at the time of the accident. In view of the decision in **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802]** the relevant multiplier applicable to the victim or the claimant having the age between 15 to 25 is 18. But in the instant case, the Tribunal went wrong by taking 17 as multiplier. Consequently, the multiplier will stand changed from 17 to 18. The learned counsel cited a decision in **Rajan v. Soly Sebastian and** M.A.C.A No.1889 of 2013 4 **another** ( **2015 ACJ 2418)** and submitted that in the case of fatal injuries, the claimant is entitled to get compensation for permanent disability, taking his future prospects in the income also. In the instant case Ext.A8 disability certificate shows that the petitioner sustained 80% permanent disability. Therefore, the future prospects also has tobe taken, while calculating the compensation for permanent disability. In the above view, for calculating compensation for loss of earning power, the monthly income including future prospects would stand enhanced to 9,750/- (₹ ₹6,500/- + 3,250/-). Thus the₹ petitioner is given 16,84,800/- as compensation for loss of₹ earning power (₹9750/- x 12x18x80/100). 6. Coming to the pain and suffering and loss of amenities, the Tribunal has granted 20,000/- and 50,000/-₹ ₹ respectively under the said heads of claim. It has come out in evidence from the discharge summary that he had undergone treatment as an impatient for 20 days and underwent four major surgeries. Similarly, Ext.A8 shows that he has 80% permanent disability. Having regard to the long duration of treatment as an inpatient, the recurring surgeries, four in numbers and the degree of disability, the compensation for pain and suffering and loss of amenities would stand enhanced 5 M.A.C.A No.1889 of 2013 to 30,000/- each. ₹ 7. The petitioner has filed a petition along with Annexures A1 and A2 in this Appeal. Annexure A1 is a payment receipt, which would show that after passing of the impugned award, the petitioner had purchased an artificial limb expending an amount of 4,37,000/-. This Court is of the₹ view that purchasing of an instrument, after the passing of award without proof of medical advise of the doctor who treated him earlier, cannot be accepted as future treatment, particularly, when neither the party who issued the payment receipt nor the petitioner was examined in evidence. In other words, Annexure A2 payment receipt alone cannot be accepted in appeal as proof of the money allegedly spent for future treatment. Therefore, the same would stand rejected. But Annexure A1 is the discharge summary which would prove the surgery, for which he had undergone after passing the impugned award. The discharge summary shows that he had undergone implant removal surgery, after the passing of the impugned award. Hence Annexure A1 could not, after the exercise of due diligence, be produced by him at the time when the award appealed against was passed. However, this Court is of the view that Annexure A1 also can be taken into M.A.C.A No.1889 of 2013 6 account under the head medical expense and the petitioner is given an additional amount of 14,038/- as additional medical₹ expense. Thus the total compensation payable to the petitioner can be summed up as follows: |Loss of earning|-|26,000/-<br>₹| |---|---|---| |Medical treatment and future expenses -||1,30,000/-<br>₹| |Transport to hospital|-|2,500/-<br>₹| |Bystander expenses|-|4,000/-<br>₹| |Damage to clothing|-|500/-<br>₹| |Extra nourishment|-|2,000/-<br>₹| |Pain and sufferings|-|30,000/-<br>₹| |Compensation for loss of earning power -||16,84,800/-<br>₹| |Loss of amenities|-|30,000/-<br>₹| |Additional medical expense|-|14,038/-<br>₹| ------------------₹19,23,838/======== Thus the petitioner is given an amount of 19,23,838/- as₹ total compensation and it is needless to say that the said amount would carry interest as stipulated by the Tribunal. All other findings of the Tribunal would stand undisturbed and cooperative. The 3[rd] respondent Insurance Company is directed M.A.C.A No.1889 of 2013 7 to deposit entire compensation, within three months from today. The petitioner is allowed to withdraw the entire compensation, after paying court fees. The M.A.C.A is allowed as above. **Sd/K.HARILAL JUDGE** //True Copy// P.A to Judge ab