## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`**
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WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944
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## **`MACA NO. 1051 OF 2010`**
## **`AGAINST THE AWARD DATED 13.11.2009 IN O.P(M.V) NO.98/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA`**
## **`APPELLANT/PETITIONER:`**
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RADHAKRISHNAN, S/O.SANKARAN NAIR,
R.K.VILLA, POOVANI DESOM, KOLAZHY VILLAGE,
THRISSUR DISTRICT.
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BY ADV SRI.BINOY RAM.V
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## **`RESPONDENTS/RESPONDENTS:`**
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1RAVIKUMAR.V, S/O.VENKATAPPA,
OLD NO.284, NEW NO.613, GODAVARI RIVER ROAD,
BRINDAVAN NAGAR, HANUMANTHA NAGAR, BANGALORE,
KARNATAKA.
2PADMANABHAN, S/O.CHELVAYYA, HOUSE NO.89,
2ND CROSS, SRIRAM NAGAR, CHIKKABANAVARA, BANGALORE.
3THE MANGER, NEW INDIA ASSURANCE CO.LTD.,
VINAY COMPLEX, OPP.NATIONAL COLLEGE, BASAVAGUDI,
BANGALORE-4.
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BY ADV. R3 BY SMT.P.K.SANTHAMMA
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
## **Dated this the 8[th] day of February, 2023**
This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Irinjalakuda (for short ‘the Tribunal’) in O.P(M.V) No.98/2006 on 13.11.2009. The appellant is the petitioner before the Tribunal. Aggrieved by the quantum of compensation stands awarded by the Tribunal, the petitioner has approached this Court in the Appeal on hand.
2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.
3. As per the averments of the petitioner while driving a motorcycle bearing Registration Number KL-8/R 8881, a tempo traveller bearing Registration Number KA5/C 6249 hit the motorcycle and thereby he sustained serious injuries. He was transported to Jubilee Mission Hospital, Thrissur and treated there as inpatient for 23 days.
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Alleging that the motor accident was occurred due to the rash and negligent driving of the tempo traveller by it’s driver and claiming a total sum of `2,20,000/- as compensation, the Original Petition above was filed before the Tribunal.
4. The owner, the driver and the insurer of the Tempo Traveller were arrayed as respondents 1 to 3 in the Original Petition. Despite service of notice 1[st] and 2[nd] respondents did not turn up to contest the Original Petition. The 3[rd] respondent entered appearance and filed written statement admitting insurance coverage for the tempo traveller as on date of accident. It was contended that the 2[nd] respondent had driven the traveller at the relevant time without holding a driving licence and badge and that the motorcycle was not having a valid policy as on date of the motor accident.
5. Evidence was adduced by both parties before the Tribunal. On the side of the petitioner, Exts.A1 to A7 were marked and on the side of the 3[rd] respondent Ext.B1 was marked. The 3[rd] respondent had also obtained permission to contest the claim petition making use of all defences
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available under the Motor Vehicles Act, 1988 (for short, ‘the M.V Act’).
6. On appreciation of the entire evidence, the Tribunal found that the petitioner had sustained injuries in the motor accident and therefore, is entitled to get compensation from the respondents. The compensation was calculated by it and `1,16,000/- was arrived at. The 3[rd] respondent, being the insurer of the offending vehicle was directed to deposit the sum arrived at with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate cost, in favour of the petitioner.
7. Sri.Binoy Ram V., the learned counsel for the petitioner has contended that the Tribunal had fixed the monthly income as `1,500/- for the purpose of assessment of compensation for disability and `2,000/- for the purpose of assessment of compensation for loss of earning and therefore, is unjustified. According to him, the fixation of monthly income is disproportionate to the cost of living and the price index prevailing as on 2005, the year in which the motor accident was occurred. This Court fixes the monthly
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income as `5,000/- for calculation of compensation for loss of earning as well as permanent disability. The learned counsel has also urged on the basis of the compensation stands awarded under other heads that those are inadequate. The motor accident in question was occurred in the year 2005. It is revealed from the discharge summaries marked in evidence as Exts.A4 and A5 that the petitioner had sustained fracture of patella and segmental fracture of shaft of femur. The fractures were treated by Nailing and partial Patellectomy. The treatment continued as inpatient for 23 days at Jubilee Mission Medical College Hospital, Thrissur. The fracture was reported malunited and after examination of the petitioner, the Medical Board has certified 41% the moderate disability affecting locomotive functions. The Medical Board failed to assess the wholebody disability. In the above circumstances, the Tribunal had taken 14.5% as the permanent disability of the petitioner and arrived at compensation payable on it’s basis.
8. It was urged by the learned counsel on behalf of the petitioner that the permanent disability considered by the court falls on the lower side. This Court also finds that
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the percentage of disability considered by the Tribunal is low and fixes it as 20%. In view of the grave injuries sustained by the petitioner, he may not be able to attend his avocation for about 8 months and `40,000/- (`5,000/- x 8) is arrived at as the compensation payable. `8,000/- stands awarded by the Tribunal when deducted from the amount arrived at, the petitioner will get `32,000/- as additional compensation for loss of earning.
9. Petitioner was residing at Thrissur and the treatment was availed from Jubilee Mission Medical College Hospital, Thrissur. Since the petitioner was treated as inpatient for 23 days, expenses for transportation is unavoidable. The Tribunal failed to consider that aspect and fixed `1,000/- as compensation for transportation expenses. The amount awarded being inadequate, `2,000/- more is awarded as additional compensation.
10. As compensation towards extra nourishment, the Tribunal failed to award any sum and this Court awards `4,000/-. As compensation under the head damages to clothing also, Tribunal failed to award any sum and this
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Court grants `1,000/-. As compensation towards bystander expenses, this Court awards Rs,4,000/-. Rs.2,300/- stands awarded by the Tribunal when deducted, the petitioner will get Rs.1,700/- as additional compensation.
11. Towards pain and sufferings, the Tribunal has awarded `20,000/- and that amount being disproportionate to the injuries sustained and therefore, this Court grants `30,000/- more. Towards loss of amenities and enjoyments in life, the Tribunal has awarded `7,000/- and that being inadequate, this Court awards `25,000/-. Thus, the petitioner will get `18,000/- as additional compensation.
12. The learned counsel for the 3[rd] respondent has pointed out that 16 taken as the multiplier is inappropriate in view of Sarla verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] .The learned counsel for the 3[rd] respondent has also pointed out that though the claim was made for `2,00,000/- it was limited later to `1,20,000/- and for that reason enhancement of compensation cannot go beyond the claim of `1,20,000/-.
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13. This Court is noticed from Sarla Verma supra that the multiplier applicable to 31 years is only 15 and therefore 16 taken is replaced by 15. The contention secondly raised by the learned counsel for the 3[rd] respondent that the award of compensation cannot go beyond the claim is discarded being untenable. A Tribunal is bound to grant just and reasonable compensation and not something to fit within the amount claimed.
14. When compensation for disability is re-assessed with the modified monthly income of `5,000/- and multiplier as 15 and Percentage of disability as 20%, `1,80,000/- is arrived at. `41,700/- stands awarded by the Tribunal when deducted therefrom, the amount payable as additional compensation would come to `1,38,300/-.
15. In the above manner of re-assessment the petitioner will get `2,27,000/- (`32,000/- + `2,000/- + `4,000/- + `1,700 + `1,000/- +`30,000/- + `18,000/- + `1,38,300/-) (Rupees Two Twenty Seven Thousand only) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of
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filing of the Original Petition till the date of realisation. The 3[rd] respondent, insurer was fixed with liability by the Tribunal and for want of challenge against the fixation, this Court maintains that. The 3[rd] respondent is directed to pay the additional compensation with interest fixed as above and the compensation stands awarded by the Tribunal with interest, if not already paid, within two months from the date of receipt of a certified copy of this judgment as directed by this Court in Circular No.03/2019 dated 06.09.2019.
MACA stands allowed accordingly.
Sd/-
**MARY JOSEPH**
**JUDGE** MJL
