MACA NO. 3232 OF 2015

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 4 [ TH ] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ## `MACA NO. 3232 OF 2015` ``` AGAINST THE ORDER/JUDGMENT DATED 30.01.2004 IN OPMV NO.384 OF 1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## `APPELLANT/CLAIMANT:` ``` SIVADASAN PILLAI AGED 39 YEARS S/O.MADHAVAN PILLAI, KOCHUKALLUVILLA VEEDU, NEAR KOCHALUMMODU, KUREEPUZHA CHERRY, THRIKADAVOOR VILLAGE, KOLLAM DISTRICT. ``` ``` BY ADVS. SRI.C.RAJENDRAN SRI.C.P.ANIL RAJ SRI.K.R.RANJITH SMT.R.S.SREEVIDYA ``` ## `RESPONDENTS/RESPONDENTS:` - `1 BABURAJAN S/O.PARAMU, CHARUVILA VEEDU, EDAMON P.O., KOLLAM DISTRICT 691 307. ( DELETED)` - `2 SUBHAGAN, LITTLE STAR MAYYANADU, KOLLAM DISTRICT 691 303. ( DELETED)` - `3 THE DIVISIONAL BRANCH MANAGER NATIONAL INSURANCE CO. LTD PARAMESWARAN PILLAI NAGAR, KOLLAM DISTRICT 691 001.` - `4 VISWANATHAN S/O.PARAMESWARAN, MOHANAVILASAM, MURUNTHAL CHERI, THRIKKADAVOOR VILLAGE, KOLLAM 691 001. ( DELETED)` - `5 SATHEESH KUMAR S/O.CHELLAPPAN PILLAI, KOKKALAYIL VEEDU, KUREEPUZHA, KOLLAM DISTRICT 691 604.` - `6 THE DISTRICT INSURANCE OFFICER KSFE BUILDING, CHINNAKKADA, KOLLAM DISTRICT 691 001. [RESPONDENT NOS 1,2 AND 4 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 31/3/2021 IN I.A. NO. 1/2020 IN THE MACA]` ``` MACA NO. 3232 OF 2015 ``` ``` 2 ``` ``` . ``` ## `OTHER PRESENT:` ``` GP-SRI.K.M.FAIZAL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3232 OF 2015 ``` ``` 3 ``` ## **`J U D G M E N T`** ``` This appeal is at the instance of the claimant in OP(MV) No.384 of 1999 on the file of Motor Accidents Claims Tribunal, Kollam impugning the award on the ground of inadequacy of compensation. ``` ``` 2. On 15/6/1998 at 8.15 pm the appellant who was riding pillion on a motorcycle ridden by the 5 th respondent, was knocked down by KBV 6280 Ambassador car driven by the 2 nd respondent in ``` ``` a rash and negligent manner. The appellant sustained serious injuries including tendon injury on the dorsal side of foot. He was hospitalized for 64 days. He had undergone ``` ``` wound debridement and repair of tendon. He was ``` ``` a 26 year old plumber earning monthly income of Rs.3,500/- at the time of accident. He ``` ``` MACA NO. 3232 OF 2015 ``` ``` 4 ``` ``` approached the Tribunal claiming compensation ``` ``` of Rs.1,50,000/-. But learned Tribunal awarded only Rs.80,540/- and hence this appeal. ``` ``` 3. Respondents 1 to 3 are the owner, driver and insurer respectively of the offending Ambassador car, and respondents 4, 5 and 6 are ``` ``` the owner, rider and insurer respectively of the motorcycle in which the appellant was ``` ``` pillion riding. ``` `4. Learned Tribunal found that the accident` ``` occurred due to the sole negligence of the driver of the Ambassador car, and so, the 3 rd ``` ``` respondent insurer of the Ambassador car was liable to compensate the appellant. That ``` ``` finding is not under challenge. ``` ``` 5. In the appeal, the 3 rd respondent -insurer of the Ambassador car entered appearance ``` ``` MACA NO. 3232 OF 2015 ``` ``` 5 ``` ``` through counsel and admitted the accident as well as the policy of the Ambassador car. But according to them, the compensation awarded by the tribunal is just and reasonable, and hence ``` ``` it needs no modification. ``` ``` 6. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court. ``` ``` 7. Heard learned counsel for the appellant and learned counsel for the 3rd respondent insurer. ``` `8. Learned counsel for the appellant would` ``` submit that, notional income of the appellant fixed @ Rs.1,700/- per month, was too meager. According to him, the appellant was earning monthly income of Rs.3,500/-. But no documents ``` ``` MACA NO. 3232 OF 2015 6 ``` ``` were there to prove his job or income. Even relying on the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951] , he was not eligible to get his notional income fixed more than Rs.1,500/- as the accident was in the year ``` ``` 1998. So the notional income fixed by the tribunal @ Rs.1,700/- is not liable to be ``` ``` interfered with. ``` ``` 9. Learned Tribunal assessed loss of earning for a period of three months. But Exhibit A5 series discharge summary will show that the appellant was hospitalized for 64 days in ``` ``` total. Moreover, he had suffered extensive lacerated injury exposing tendon on the foot and he had undergone wound debridement and repair of tendons etc. So this Court is of the ``` ``` MACA NO. 3232 OF 2015 ``` ``` 7 ``` ``` view that loss of earning for six months is only reasonable. At the rate of Rs.1,700/- per month for six months, the appellant is entitled to get Rs.10,200/-. After deducting Rs.5,100/- already awarded by the tribunal, he is entitled to get the balance amount of Rs.5,100/- as enhanced compensation under the head loss of earning. ``` ``` 10.Towards bystander expenses, learned Tribunal awarded only Rs.2,000/-. The appellant was hospitalized for 64 days in total. This court is inclined to fix bystander expenses @ Rs.100/- per day for 64 days of hospitalization which will come to Rs.6,400/-. After deducting Rs.2,000/- already awarded by the tribunal, the appellant is entitled to get the balance amount of Rs.4,400/- under the head bystander ``` ``` MACA NO. 3232 OF 2015 ``` ``` 8 ``` ``` expenses. ``` ``` 11. Towards transportation expenses, this court is inclined to award Rs.1,000/- more, as the appellant was hospitalized on two different occasions, and even after discharge he had to attend hospital for periodic review. ``` ``` 12. Towards extra nourishment, this court is ``` ``` inclined to award Rs.2,500/- as he was hospitalized for 64 days with extensive ``` ``` lacerated wounds exposing his tendon. After deducting Rs.1,300/- already awarded, he is ``` ``` entitled to get balance amount of Rs.1,200/-, ``` ``` as enhancement under the head extra ``` ``` nourishment. ``` ``` 13. Towards pain and suffering, this court is inclined to award Rs.5,000/- more, ``` ``` considering the nature of injuries, period of ``` ``` MACA NO. 3232 OF 2015 ``` ``` 9 ``` ``` hospitalization etc. ``` ``` 14. Towards loss of amenities, learned Tribunal awarded only Rs.5,000/-. Ext.A7 ``` ``` disability certificate issued by the medical board will show that:- Dorsiflexion of his right ankle joint was restricted by 5 degree, ``` ``` making squatting, running and climbing steps difficult, Flexion of right big toe was not possible, secondary osteoasthritis of right ankle joints were noted, and there was ``` ``` extensive scar on the anterior aspect of the ``` ``` right ankle joint. Considering these facts and ``` ``` also considering the fact that the appellant ``` ``` was a 26 year old young man, at the time of accident, this court is inclined to award Rs.5,000/- more, under the head loss of ``` ``` amenities. ``` ``` MACA NO. 3232 OF 2015 ``` ``` 10 ``` ``` 15. The appellant suffered disability of 11% ``` ``` as reported by the medical board in Ext.A7 certificate. But learned Tribunal accepted only 10% without assigning any special reasons. ``` ``` Since it was a certificate issued by the medical board of District Hospital, Kollam, this court is inclined to accept the disability reported by the medical board as such. Taking his monthly income @ Rs.1,700/-, adopting ``` ``` multiplier of 17, the compensation for 11% ``` ``` disability could be assessed as Rs.38,148/- (1700x12x17x11/100). After deducting ``` ``` Rs.32,640/- already awarded by the tribunal, the appellant is entitled to get the balance amount of Rs.5,508/- as enhanced compensation for disability. ``` ``` 16. The compensation awarded under all other ``` ``` MACA NO. 3232 OF 2015 ``` ``` 11 ``` ``` heads seems to be reasonable, and hence it needs no modification. ``` ``` 17. The enhanced compensation awarded in this ``` ``` appeal is stated in the table given below:- ``` |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|5,100/-|10,200/-<br> [1700x6]|5,100/-| |Bystander<br>expenses|2,000/-|6,400/-<br>[100x64]|4,400/-| |Transportation<br>expenses|2,000/-|3,000/-|1,000/-| |Extra<br>nourishment|1,300/-|2,500/-|1,200/-| |Pain and<br>suffering|15,000/-|20,000/-|5,000/-| |Loss of<br>amenities|5,000/-|10,000/-|5,000/-| |Disability|32,640/-|38,148/-|5,508/-| |Total 27,208/-|||| ||||| ``` 18. So the appellant is entitled to get ``` ``` enhanced compensation of Rs.27,208/-. ``` **==> picture [409 x 13] intentionally omitted <==** ``` MACA NO. 3232 OF 2015 ``` ``` 12 ``` ``` respondent-insurer would submit that the accident is of the year 1998, and the claim petition is of the year 1999. Learned Tribunal awarded interest @ 9%. Since they have to pay interest for all these 15 years, the interest rate may be reduced from 9% to 8%. The appeal was filed with a delay of 4182 days. Though the appeal was filed in the year 2015, it came up for hearing only in the year 2024 after a ``` ``` lapse of about 9 years. An early hearing petition was seen filed by the appellant only in the year 2024. So this Court is inclined to award 8% interest for the enhanced compensation as it seems reasonable. ``` ``` 20. The 3rd respondent/insurer is directed to deposit the enhanced compensation of ``` ``` Rs.27,208/- with interest at 8% per annum, ``` ``` MACA NO. 3232 OF 2015 ``` ``` 13 ``` ``` from the date of petition till the date of deposit (excluding 4182 days of delay in filing the appeal) before the Motor Accidents Claim Tribunal, Kollam, within a period of two months from the date of receipt of a copy of this ``` ``` judgment. Learned Tribunal shall disburse that ``` ``` amount to the appellant, after deducting the liabilities, if any, towards Tax, balance court fee, legal benefit fund etc. ``` **==> picture [413 x 14] intentionally omitted <==** ``` above, and no order is made as to costs. ``` **==> picture [46 x 14] intentionally omitted <==** ## **`SOPHY THOMAS,`** ## **`JUDGE`** ``` ska ```