MACA No. 458 of 2017

``` MACANO.458OF2017 ``` 1 ``` 2024:KER:60197 ``` **==> picture [58 x 58] intentionally omitted <==** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` FRIDAY,THE26[TH]DAYOFJULY2024/4THSRAVANA,1946 MACANO.458OF2017 ``` ``` AGAINSTTHEAWARDDATED15.11.2016INOPMVNO.229OF2014OFMOTOR ACCIDENTCLAIMSTRIBUNAL,KOLLAM APPELLANT/PETITIONER: ``` - **`1 OMANAKUTTAN PILLAI (DIED); AGED 59 YEARS, S/O.KRISHNA PILLAI, KRISHNA MANDIRAM, VAYANASALA JUNCTION, KOTTAMKARA VILLAGE, CHANDANATHOPPU P.O., KOLLAM.`** - **`2 AMBIKA DEVI W/O. LATE OMANAKUTTAN PILLAI, AGED 61 YEARS, RESIDING AT KRISHNA MANDIRAM, VAYANASALA JUNCTION, KOTTAMKARA VILLAGE, CHANDANATHOPPE P.O., KOLLAM -691001`** - **`3 ABHILASH S/O. LATE OMANAKUTTAN PILLAI, AGED 36 YEARS, RESIDING AT KRISHNA MANDIRAM, VAYANASALA JUNCTION, KOTTAMKARA -`** - **`VILLAGE, CHANDANATHOPPE P.O., KOLLAM 691001`** - **`4 ARJUN`** - **`S/O. LATE OMANAKUTTAN PILLAI, AGED 30 YEARS, RESIDING AT KRISHNA MANDIRAM, VAYANASALA JUNCTION, KOTTAMKARA -`** - **`VILLAGE, CHANDANATHOPPE P.O., KOLLAM 691001 (ADDITIONAL APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT, AS PER THE ORDER DATED 13/06/2024 IN IA.NO.1/2024 IN MACA 458/2017)`** ## **`BY ADV THYPARAMBIL THOMAS THOMAS`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 RAMESH KUMAR S/O.DAMODHARAN PILLAI, HOUSE NO.694, PUTHENPURAYIL, ULIYAKKOVIL, KADAPPAKKADA, KOLLAM-691008.`** - **`2 THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD., PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM-691001.`** ``` MACANO.458OF2017 ``` 2 ``` 2024:KER:60197 ``` **==> picture [58 x 58] intentionally omitted <==** - **`3 KHASIMMA M.A. S/O.MUHAMMED KHASIM, HOUSE NO.5/897, AL-AMAN, ASRAMAM NORTH, KOLLAM-691001.`** - **`4 GIREESH`** ``` S/O.UNNIKRISHNAPILLAI,THARAMELPADINJATTATHIL, KUREEPPUZHA,KAVANADP.O.,KOLLAM-691001. ``` ## **`BY ADV DEEPA GEORGE`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGCOMEUPFOR ADMISSIONON26.07.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` MACANO.458OF2017 ``` 3 **==> picture [58 x 58] intentionally omitted <==** ## `2024:KER:60197` ## **SOPHY THOMAS, J.** ## **=====================** ## MACA No. 458 of 2017 ## **========================** ## J U D G M E N T ## Dated this the 26th day of July, 2024 This appeal is at the instance of the claimant in OP (MV) No. 229 of 2014 on the file of Motor Accidents Claims Tribunal, Kollam impugning the award on the ground of inadequacy of compensation. 2. On 25.08.2013 at about 03.45 pm, while the appellant/ - claimant was riding a motorcycle through Ayathil Mevaram public road, KL-04K/6794 Maruti zen car driven by the 1st respondent in a rash and negligent manner dashed against his motorcycle, and due to that impact, his motorcycle hit against a Maruti swift car bearing registration No. KL-02A/G5101. As a result of the accident, the appellant suffered serious injuries which resulted in amputation of his right leg above knee and amputation of two fingers on his right hand. He was a 57-year-old supervisor working under a civil contractor ``` MACANO.458OF2017 ``` 4 **==> picture [58 x 58] intentionally omitted <==** `2024:KER:60197` earning monthly income of Rs.30,000/-. He approached the Tribunal claiming compensation of Rs.25,00,000/-. But learned tribunal awarded only Rs.13,31,967/-, and hence this appeal. 3. The 1st respondent was the owner cum driver of the maruti zen car and 2nd respondent was its insurer. The 3rd respondent was the owner of the Maruti Swift car and the 4th respondent was its driver. 2nd respondent contested the case, but admitted the accident as well as the policy. 4. On analyzing the facts and evidence, learned tribunal found that the accident occurred due to the rash and negligent driving of the Maruti zen car by the 1st respondent and so, the 2nd respondent insurer was found liable to compensate the claimant. According to the 2nd respondent, the compensation awarded by the Tribunal is just and reasonable and hence it needs no modification. 5. 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. ``` MACANO.458OF2017 ``` 5 **==> picture [58 x 58] intentionally omitted <==** `2024:KER:60197` 6. Pending appeal, the appellant passed away. His legal heirs were impleaded as additional appellants 2 to 4. 7. Heard learned counsel for the additional appellants and learned counsel for the 2nd respondent insurer. 8. Learned counsel for the additional appellants would submit that the original appellant Sri. Omanakuttan Pillai was a supervisor working under a civil contractor earning monthly income of Rs.30,000/-. But learned tribunal fixed his notional income at a lower rate of Rs.6,000/- per month. Ext. A22 salary certificate produced by him was not accepted by the Tribunal. Learned counsel for the appellants would rely on the decision _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]**_ to say that even a coolie worker was eligible to get his notional income fixed @ Rs.9,000/- per month in the year 2013. Though the salary stated in Ext. A22 is disputed, that certificate will show that he was working as a supervisor. So this Court is inclined to fix his notional income @ Rs.10,000/- per month, 9. Learned tribunal assessed loss of earning for 12 months. Since we have fixed his notional income @ Rs.10,000/-, for 12 ``` MACANO.458OF2017 ``` 6 **==> picture [58 x 58] intentionally omitted <==** `2024:KER:60197` months, he was entitled to get Rs.1,20,000/-. After deducting Rs.72,000/- already awarded by the Tribunal, he was entitled to get the balance amount of Rs.48,000/-. 10. Towards transportation expenses, learned tribunal awarded only Rs.2,000/-. Learned counsel for the additional appellants would submit that, initially he was admitted in a hospital at Kollam and thereafter he was shifted to SP Fort hospital, Thiruvananthapuram. Considering that aspect, this Court is inclined to award Rs.3,000/more as transportation expenses. 11. Towards extra nourishment, learned tribunal awarded only Rs.3,900/- taking the days of hospitalization as 26. But Ext.A9 discharge summary will show that he was hospitalized for 77 days. So towards extra nourishment, he is entitled to get Rs.11,550/-. After deducting Rs,3,900/already awarded, the balance entitled is Rs.7,650/-. 12. Towards bystander expenses, learned tribunal awarded Rs.5,200/-, taking Rs.200/- per day for 26 days. But he was hospitalized for 77 days, and even after discharge he might have been in need of a bystander, since his right leg was amputated above his knee. So, this Court is inclined to take bystander expenses for a ``` MACANO.458OF2017 ``` 7 **==> picture [58 x 58] intentionally omitted <==** `2024:KER:60197` period of 5 months @ Rs. 250/- per day, which will come to Rs.37,500/-. After deducting Rs.5,200/- already awarded, the original appellant was entitled to get Rs.32,300/-. 13. Towards pain and suffering, against his claim of Rs.10 lakh, learned tribunal awarded only Rs.1 lakh. Considering the amputation of right leg above knee, and also two fingers of right hand and 77 days of hospitalization, this Court is inclined to award Rs.50,000/- more towards pain and suffering. 14. Since the disability is more than 50%, this Court is inclined to award 10% addition towards future prospects, as he was not able to continue his job as a supervisor. We have fixed his notional income @ Rs.10,000/-. So by adding 10% towards future prospects his income would become Rs.11,000/-. So, for 60% disability, he is entitled to get Rs.7,12,800/- (11,000 x 12 x 9 x 60/100). After deducting Rs.3,88,800/awarded by the Tribunal, he will get the balance Rs.3,24,000/-. 15. The compensation awarded by the Tribunal under all other heads seems to be reasonable, and hence it needs no modification. ``` MACANO.458OF2017 ``` 8 **==> picture [58 x 58] intentionally omitted <==** ||||`2024:KER:60197`| |---|---|---|---| |_Head of claim_|_Amount_<br>_awarded by_<br>_the Tribunal_|_Amount_<br>_awarded_<br>_in appeal_|_Difference to be_<br>_drawn as_<br>_enhanced_<br>_compensation_| |_Loss of earning_|_72,000/-_|_1,20,000/-_|_48,000/-_| |_Transportation_|_2,000/-_|_5,000/-_|_3,000/-_| |_Extra nourishment_|_3,900/-_|_11,550/-_|_7,650/-_| |_Bystander_<br>_expenses_|_5,200/-_|_37,500/-_|_32,300/-_| |_Pain and suffering_|_1,00,000/-_|_1,50,000/-_|_50,000/-_| |_Permanent_<br>_disability_|_3,88,800/-_|_7,12,800/-_|_3,24,000/-_| |_Total_|||_4,64,950/-_| 16. So the original appellant was entitled to get enhanced compensation of Rs.4,64,950/-. Since he is no more his legal heirs who are additional appellants 2 to 4 will get that amount. 17. The 2nd respondent insurer is directed to deposit the enhanced compensation of Rs.4,64,950/- with 8% interest per annum from the date of petition till the date of deposit before the ``` MACANO.458OF2017 ``` 9 **==> picture [58 x 58] intentionally omitted <==** ``` 2024:KER:60197 ``` Motor Accidents Claims 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 additional appellants 2 to 4 in the ratio 60:20:20, after deducting the liabilities, if any, towards Tax, balance court fee, and legal benefit fund. The appeal is allowed to the extent as above and no order as to costs. Sd/- ## **SOPHY THOMAS** ## **JUDGE** _**RMV**_ ``` MACANO.458OF2017 ``` 10 **==> picture [58 x 58] intentionally omitted <==** ``` 2024:KER:60197 ``` ## **`APPENDIX OF MACA 458/2017`** ## **`RESPONDENT ANNEXURES`** ``` Annexure-A ``` ``` ORIGINALOFFAMILYMEMBERSHIPCERTIFICATE, DTD.2/3/2022,ISSUEDBYVILLAGEOFFICER KOTTAMKARAVILLAGE ```