M. Girija Nandan Menon v. K.V. James, Manikandan, The National Insurance Company Limited, A.R. Ramu, The United India Insurance Company Limited

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 ## MACA NO. 1518 OF 2012 AGAINST THE ORDER/JUDGMENT IN OPMV 2629/2004 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR, THRISSUR ## **APPELLANT/S:** M. GIRIJA NANDAN MENON, S/O. C. BHASKARA MENON, RESIDING AT MAMBATTA HOUSE, P.O.VETTIKKATTIRI, NEDUMPURA VILLAGE, THAZHAPRA, THRISSUR-679531. BY ADVS. T.C.SURESH MENON P.S.APPU K.A.ANAS A.R.NIMOD ## **RESPONDENT/S:** - 1 K.V. JAMES, RESIDING AT KURUTHUKULANGARA HOUSE, PARAPUR, THRISSUR-680552. - 2 MANIKANDAN, S/O. KUNJIKUTTAN NAIR, RESIDING AT SEKHARATH HOUSE, MEZHATHUR, THRITHALA, PALAKKAD-679534. 3 THE NATIONAL INSURANCE COMPANY LIMITED, AMBIKA ARCADE, M.G. ROAD, THRISSUR-680001. - 4 A.R. RAMU, S/O. PARUKUTTY, RESIDING AT AMBALAPARAMBIL HOUSE, P.O. ORUNILAMCODE, MULLOORKKARA, THALAPPILLY TALUK, THRISSUR-680583. 5 THE UNITED INDIA INSURANCE COMPANY LIMITED, PARK HOUSE, ROUND NORTH, THRISSUR-680001. BY ADV S.K.AJAY KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1518 OF 2012 2 ## **A.BADHARUDEEN, J.** ================================ M.A.C.A.No.1518 of 2012 ================================ Dated this the 29[th] day of June, 2021 ## **JUDGMENT** The petitioner in O.P(MV) No.2629/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur has filed this appeal aggrieved by the inadequacy of compensation granted by the Tribunal. The respondents herein are the respondents before the Tribunal. 2. I would like to refer the parties in this appeal as to their status before the Tribunal for easy reference. 3. Tracing the brief facts as against claim of Rs.2,50,000/-, the Tribunal by the impugned award, directed that respondents 1 to 3 are jointly and severally liable to pay compensation of Rs.59,000/- at the rate of 8% per annum from the date of petition till the realisation . 4. The petitioner filed the original petition contending that MACA NO. 1518 OF 2012 3 on 22.07.2004 at about 7.45 a.m, while the petitioner was walking through the Shornur road. When he reached at Uthralikkavu Temple, the bus bearing Reg.No.KL8/C-279 driven by the 2nd respondent hit against the motor cycle bearing No.KL8/U7165 which was going in front of the bus and consequently the rider of the motor cycle, 4 th respondent lost his control over the motor cycle and hit against the petitioner. Thereby the petitioner sustained very serious injuries. The 4th respondent is the owner cum rider of the motor cycle. The 1st respondent is the owner of the bus. The 3rd and 5th respondents are insurers of the bus and the motorcycle respectively. rd th 5. All the respondents other than 3 and 5 respondents remained exparte. 6. Respondents 3 and 5 filed written statement. Both of them admitted the policies in respect of both the vehicles and also the occurrence in the public road. 7. According to the learned Counsel for the petitioner, the Tribunal fixed the monthly income of the petitioner as Rs.3,000/ignoring the legal principles settled, whereby the monthly income was fixed as Rs.4,500/-. Legal position as submitted was not opposed by the learned Counsel for the insurance company. He also conceded MACA NO. 1518 OF 2012 4 consequential increase. 8. Going by the law laid down in _**Ramachandrappa v. Manager, Royal Sundaram Alliance [2011) 13 SCC 236]**_ and S _**yed Saidq and others v. Divisional Manager, United India Insurance Co.Ltd. [(2014) 2 SCC 735]**_ , wherein the Hon'ble court fixed the notional income of a coolie worker in the year 2004 @ Rs.4,500/- per month and that of a vegetable vendor in the year 2008 @ Rs.6,500/- per month. In view of the above decision, I am inclined to fix the monthly income of the petitioner as Rs.4,500/per month. 9. It is argued by the learned Counsel for the petitioner further that learned Counsel for the Tribunal went wrong in reducing the disability to 5% though as per Ext.A10 disability certificate, 9% was the disability. 10. This argument was repelled by the learned Counsel for the insurance company and submitted that Ext.A10 disability certificate was not proved by examining its author and therefore, the Tribunal is right in holding that Ext.A10 as such cannot be relied upon. I do agree with the learned Counsel for the insurance company. 11. Going by the nature of injuries sustained at par with the MACA NO. 1518 OF 2012 5 disability certificate issued, I am of the view that the disability fixed by the Tribunal as 5% is reasonable and this challenge cannot be entertained. 12. The Tribunal granted loss of earning for three months at the rate of Rs.3,000/- per month. Learned Counsel for the petitioner submitted that the petitioner underwent inpatient treatment for 21 days and had sustained fracture left malleolus, pain and swelling over the malleolus on left ankle, bimalleolar fracture on left leg. 13. In view of the re-fixation of the notional income of the petitioner, I am inclined to refix the loss of earnings entitled by the petitioner at the rate of Rs.4500 for four months Rs.4,500 x 4=18000 instead of Rs.9000/-. 14. Learned Counsel for the petitioner further submitted the amount granted under the head loss of disability is insufficient and pressed for enhancement. I hold that compensation under this head to be refixed as Rs.37,800/- (Rs.4500x12x14x5/100=37,800/-), thus the petitioner is entitled to get Rs.12, 600 **/** - more under this head. 15. Learned Counsel for the petitioner pointed out the inadequacy in the matter of fixing the compensation under the head pain and suffering and pressed for enhancement taking note of the MACA NO. 1518 OF 2012 6 seriousness of the injuries. I am of the view that Rs.10,000/- granted by the Tribunal is inadequate and therefore, I am inclined to to grant Rs.10,000 **/-** more under this head. 16. Though the petitioner had claimed an amount of Rs.20,000/- as compensation under the head loss of amenities and inconvenience, the Tribunal granted only Rs.5000 under this head. Considering the nature of injuries and treatment undergone, I am of the opinion that the compensation under the above head has to be enhanced by granting a further amount of Rs.5,000 **/-** . Therefore, I refix the compensation under the head loss of amenities as Rs.10,000/-. 17. The Tribunal fixed the by standers expenses at Rs.3,150. I hold that the compensation under the head bystander expenses has to be refixed at Rs.200 per day. Accordingly, I enhance the compensation under the said head at Rs.4200/- (21 x Rs.200/-). Thus, the petitioner would be entitled to get Rs.1050 **/-** more under this head. 18. It is seen that the Tribunal has awarded an amount of Rs.2,000/- under the head transportation expenses, extra nourishment and damages to clothing. Considering the injuries, I MACA NO. 1518 OF 2012 7 refix the compensation under the said head to Rs.6,000/. Accordingly the petitioner would get an additional amount of Rs.4000 **/-** under this head. 19. Thus, the petitioner is entitled for additional compensation as tabulated below: |Ite<br>m<br>No.|Head of claim|Amount<br>awarded by<br>the<br>Tribunal<br>(in rupees)|Amount<br>Modfied by this<br>Court<br>(in rupees)|Amount<br>Enhanced by<br>this Court<br>(in rupees)| |---|---|---|---|---| |1|Loss of earnings|9,000/-|18000/-<br>(Rs.4,500/-x4)|9,000/-<br>(Rupees nine<br>thousand only)| |2|Bystander<br>expenses|3150|4200/-<br>(Rs.200 x 21)|1050/-<br>(Rupees One<br>thousand fifty<br>only)| |3.|Loss of disability|25,200/-|37,800/-<br>(<br>Rs.4500x12x14<br>x5/100)|12,600/-<br>(Rupees twelve<br>thousand six<br>hundred only)| |3|Pain and suffering|10,000|20,000/-|10,000/-| MACA NO. 1518 OF 2012 8 |||||(Rupees ten<br>thousand only)| |---|---|---|---|---| |4|Loss of amenities<br>and inconvenience|5,000/-|10,000/-|5,000/-<br>(Rupees five<br>thousand only)| |5|Transportation<br>Expenses<br>Extra nourishment<br>Damages to<br>clothing|2,000/-|6,000/-|4,000/-<br>(Rupees four<br>thousand only)| ||Total|||41,650/-<br>(Rupees Forty<br>one thousand<br>six<br>hundred<br>fifty only)| Accordingly, the appeal is allowed in part, by enhancing compensation to the tune of **Rs41,650/-** (Rupees Forty one thousand six hundred fifty only) with interest at the rate of 9% per annum from the date of claim petition till the date of realisation on the enhanced compensation with proportionate costs. Respondent No.3, the insurer of the offending MACA NO. 1518 OF 2012 9 vehicle shall deposit the enhanced compensation awarded in this appeal before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. Sd/ ## **A.BADHARUDEEN, JUDGE** ## **jm/**