MACA No. 1651 of 2010

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 MACA NO. 1651 OF 2010 ``` ``` AGAINST THE AWARD DATED 07.01.2010 IN O.P(M.V) NO.1804/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT/CLAIM PETITIONER:`** ``` SURESH, S/O.SARASANPILLAI, KONATTU HOUSE, C.M.C.-16, CHERTHALA, REPRESENTED BY HIS MOTHER THANKAMMA, KONATTU HOUSE, C.M.C.-16, CHERTHALA AS, NATURAL GUARDIAN OF SURESH. ``` ``` BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SHIJUKUMAR, S/O.SURENDHRANATHAKURUP, THYPPARA KANGARA, KURUPANKULANGARA, PIN-688 539.` - `2 ANNEE J.MADVANA, D/O.ANTONY JACOB, MADVANA HOUSE, C.M.C.-16, CHERTHALA, PIN 688 524.` - `3 ANTONY JACOB, MADVANA HOUSE, C.M.C.-16, CHERTHALA, PIN 688 524.` - `4 BRANCH MANAGER UNITED INDIA INSURANCE CO., ALAPPUZHA, PIN 688 001. BY ADV R4 BY SRI.P.K.MANOJKUMAR, SC` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1651 of 2010 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 15[th ] day of February, 2023** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Alappuzha (for short ‘the Tribunal’) on 07.01.2010 in O.P(M.V) No.1804/2004. The appellant is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 4 in accordance with their status before the Tribunal in the Original Petition. 3. By the impugned award, the Tribunal has arrived at ₹3,00,000/- as the compensation payable to the petitioner and directed the 4[th] respondent, the insurer of the offending vehicle to deposit the above 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 alongwith a proportionate cost of ₹3,000/-. ``` M.A.C.A.No.1651 of 2010 ``` ``` 3 ``` 4. It is contended by Sri.Firoz K M, the learned counsel for the petitioner that the Tribunal failed to award just and reasonable compensation under various heads. According to him, though the petitioner claimed to be a construction worker earning ₹6,000/- monthly, the Tribunal took only ₹2,500/- as his monthly income. According to the learned counsel the fixation of monthly income ought to have been in accordance with the fixation in Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited [ (2011) 13 SCC 236]. The learned counsel further contended that as compensation towards extra nourishment, bystander expenses and damages to clothing, the sums stand awarded by the Tribunal being meager, interference is warranted. According to him, though the petitioner had sustained severe head injury and treated for a prolonged period, the Tribunal confined awarding only ₹20,000/- and ₹5,000/- respectively as compensation towards pain and suffering and loss of amenities and enjoyments in life. 5. It is pointed out by the learned counsel that the permanent disability of the petitioner following the injuries ``` M.A.C.A.No.1651 of 2010 ``` ``` 4 ``` sustained in the motor accident was assessed by the Medical Board as 55%, but the Tribunal had considered only 30% while calculating the compensation payable towards that head. According to him valid reasons were stated by the Medical Board in the certificate marked in evidence as Ext.A10. But the Tribunal overlooked those and confined it’s consideration to 30% and thereby is unjustified. 6. The learned counsel for the 4[th] respondent contended on the contrary that since evidence has not been adduced by the petitioner to prove his monthly income the Tribunal cannot be found fault with in fixing it on a notional basis. According to him 17 being the correct multiplier applicable, this Court has to substitute that in the place of 18 stands adopted by the Tribunal. 7. Since the petitioner claimed to be a construction worker and the motor accident in question was occurred in the year 2004, this Court fixes the monthly income as ₹4,500/-. Age of the petitioner at the relevant time of the motor accident being 26 years, 18 adopted by the Tribunal is replaced by 17, the correct multiplier. ``` M.A.C.A.No.1651 of 2010 ``` ``` 5 ``` 8. The injuries sustained by the petitioner were reported in the accident register cum wound certificate issued from Taluk Head Quarters Hospital, Cherthala, marked in evidence as Ext.A2. After obtaining first aid from Taluk Head Quarters Hospital, Cherthala, the petitioner was transported to Medical College Hospital, Alappuzha for better management. Thereafter, he was shifted to Pushpagiri Medical College Hospital, Thiruvalla and the discharge summary issued therefrom is marked in evidence as Ext.A11. It was found from Ext.A11 that the petitioner was admitted there on 17.07.2004 and was discharged after treatment on 06.08.2004. The injuries were lacerated full thickness injury on upper knee, loss of part of central incisor, acute subdural haematoma on right fronto tempero parietal area, defuse sub arachnoid hemorrhage, small hemorrhagic contusion on frontal and temporal lobes with underlining fracture of right temporal bone. Treatment was availed from five different hospitals. In the medical records marked in evidence, the petitioner was reported as developed behavioral changes during the course of treatment. The mother of the petitioner ``` M.A.C.A.No.1651 of 2010 ``` ``` 6 ``` was examined as PW1. She too had deposed about the changes in behaviour occurred to the petitioner following the motor accident and during the course of treatment. 9. The disability of the petitioner was assessed by the Medical Board as 55% and Ext.A10 is the certificate issued by it. The disability assessed is not the wholebody disability and the reasons based on which 55% was assessed are : impairment in comprehension -5% impairment in emotion -5% impairment in mental status -10% tracheostomy scar -5% impairment on right eye vision -30% 10. Eventhough it is stated in the Original Petition that the petitioner had undergone treatment at Little Flower Hospital and Research Centre, Angamaly for problems caused to his eye following the injuries sustained in the motor accident an outpatient card alone is produced without disclosing anything on the nature of treatment availed therefrom. Therefore, 30% disability for the impairment of vision of right eye alone cannot be taken. The Tribunal took ``` M.A.C.A.No.1651 of 2010 ``` ``` 7 ``` 30% as the total disability and this Court finds every reason for a modified consideration. Accordingly 35% is taken. 11. The Tribunal assessed compensation for loss of earning by considering six months’ period. In the view of this Court, there is every justification in considering a period of eight months. Thus, ₹36,000/- (₹4,500/- x 8) is arrived at. ₹15,000/- stands awarded by the Tribunal when deducted from the compensation stands modified now, the petitioner will get ₹21,000/- as additional compensation for loss of earning. 12. As compensation towards transportation expenses, taking into account of the treatment availed by the petitioner from five different hospitals, ₹10,000/- stands awarded by the Tribunal appears to this Court inadequate and therefore, enhanced to ₹15,000/-. Therefore, the petitioner will get ₹5,000/- as additional compensation. As compensation towards extra nourishment, ₹1,500/- stands awarded and this Court modifies it to ₹4,500/-. Therefore, the petitioner will get ₹3,000/- as additional compensation. Towards bystander expenses, this Court is inclined to award ₹3,000/- more. ``` M.A.C.A.No.1651 of 2010 ``` ``` 8 ``` Towards damages to clothing, ₹500/- stands awarded and this Court is inclined to grant ₹5,00/- more. As compensation towards pain and suffering, this Court is inclined to enhance the compensation to ₹40,000/-. ₹20,000/- stands awarded by the Tribunal when deducted from the sum now arrived at, the petitioner will get ₹20,000/- as additional compensation. Similarly ₹15,000/- is awarded as additional compensation towards loss of amenities and enjoyments in life. 13. Compensation for disability when reassessed on the basis of ₹4,500/- as the monthly income, 17 as the multiplier and 35% as the disability, ₹3,21,300/- (₹4,500/- x 12 x 17 x 35/100) is arrived at. ₹1,62,000/- stands awarded by the Tribunal when deducted therefrom, the petitioner will get ₹1,59,300/- as additional compensation. 14. When recalculated in the above manner, the petitioner will get ₹2,26,800/- (Rupees Two lakhs twenty six thousand and eight hundred only) [₹21,000/- + ₹5,000/- + ₹3,000/- + ₹3,000/- + ₹500/- + ₹20,000/- + ₹15,000/- + ₹1,59,300/-] as the total additional compensation. The said amount will carry interest at the rate of 7.5% per annum from ``` M.A.C.A.No.1651 of 2010 ``` ``` 9 ``` the date of filing of the Original Petition till the date of realisation. The 4[th] respondent was fixed with liability by the Tribunal to indemnify the insured. In the absence of any challenge being raised against fixation of liability, this Court maintains that. Thus 4[th] respondent is directed to pay ₹2,26,800/- with interest, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the direction stands issued by this Court in Circular No.03/2019, on 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB