MACA No. 657 of 2014

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 22 [ ND ] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 ``` ## **`MACA NO. 657 OF 2014`** ``` AGAINST THE AWARD DATED 07.08.2013 IN OP(MV) NO.746 OF 2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM. ``` ## **`APPELLANT/PETITIONER:`** ``` P. BALAMUKUNDAN, AGED 50 YEARS, ``` ``` S/O.KALLIANI AMMA, PADINHARE VEEDU, THEKKUMANGALAM, LAKKIDI, OTTAPALAM, PALAKKAD DISTRICT. ``` ## **`BY ADV SRI.K.RAVI (PARIYARATH)`** ## **`RESPONDENTS/RESPONDENTS:`** ## **`1 RANJITH,`** ``` AGED 25 YEARS, ``` ``` S/O.PRABHAKARAN K, KALATHIL HOUSE, VADASSERY, OTTAPALAM TALUK, PALAKKAD DISTRICT. 679 001. (RIDER OF KL-9-R-5156 MOTOR CYCLE). ``` - **`2 P.PRABHATH,`** ``` AGE NOT KNOWN, S/O.BHASKARAN NAIR, PRATHAP NIWAS, ILLATH KULAMBIL, KARIKKODE. 679 001.(OWNER OF KL-9-R-5156 MOTOR CYCLE). ``` ``` 3 NEW INDIA ASSURANCE CO. LTD., N.S.TOWERS, 1ST FLOOR, NEAR STADIUM BUS STAND, COIMBATORE ROAD, KUNNATHURMEDU, PALAKKAD. (INSURER OF KL-9-R-5156 MOTOR CYCLE, POLICY VALID FROM 15.02.2010 TO 14-02-2011). 679 001. ``` MACA 657 of 2014 2 ``` BY ADVS. ``` ``` SRI.JOHN JOSEPH VETTIKAD, STANDING COUNSEL, NEW INDIA ASSURANCE CO. LTD. SRI.RAJESH THOMAS SRI.C.JOSEPH JOHNY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 657 of 2014 3 ## **J U D G M E N T** This appeal is at the instance of the claimant in OP(MV) No.746 of 2010 on the file of Motor Accidents Claims Tribunal, Ottapalam, impugning the award on the ground of inadequacy of compensation. 2. The appellant met with a road traffic accident on 31.03.2010, at 9.45 a.m., while he was standing by the side of the road. KL-51-3241 motorbike ridden by the 1st respondent, in a rash and negligent manner, knocked him down, and he sustained serious injuries, resulting in disability also. He was admitted and treated in hospital for three days. He approached the Tribunal claiming compensation of Rs.3,50,000/-. But learned Tribunal awarded only Rs.47,200/- and hence this appeal. 3. The 1st respondent was the rider of the offending motorcycle, 2nd respondent was its owner and 3rd MACA 657 of 2014 4 respondent was its Insurer. The 3rd respondent-Insurer entered appearance and admitted the Policy. 4. 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. 5. Heard learned counsel for the appellant and learned counsel for the 3rd respondent-Insurer. 6. Learned counsel for the appellant would submit that the appellant was the Chief Advisor of LIC, earning monthly income of Rs.32,500/-. Ext.A13 document was produced by the appellant before the Tribunal, showing receipt of his insurance commission. But that document was with respect to the period 2008-2009. The accident in question occurred on 31.03.2010. No document was produced to prove his income during the relevant period. Even then, considering the fact that the 3rd respondent is MACA 657 of 2014 5 not disputing the occupation of the appellant as an LIC agent, anyhow he would have been getting income more than Rs.4,000/-, fixed by the Tribunal. Going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR** **2011 SC 2951]** , even a coolie was eligible to get his notional income fixed @ Rs.7,500/- in the year 2010. Since the appellant was an LIC agent, this Court is inclined to fix his monthly income notionally @ Rs.10,000/-. Learned Tribunal assessed loss of earning for two months @ Rs.4,000/-. Since we have fixed his notional income @ Rs.10,000/-, he is eligible to get Rs.20,000/- in total, under the head ‘loss of earning’. After deducting Rs.8,000/- already awarded, he is entitled to get Rs.12,000 as enhancement under the head ‘loss of earning’. MACA 657 of 2014 6 7. Under the head ‘bystander expenses’, learned Tribunal awarded Rs.200/- each for three days of hospitalisation amounting to Rs.600/-. Since the accident was in the year 2010, this Court is inclined to award bystander expenses @ Rs.400/- per day for three days, which will come to Rs.1,200/-. After deducting Rs.600/already awarded, he will get the balance Rs.600/- as enhancement under the head ‘bystander expenses’. 8. Towards extra nourishment, learned Tribunal awarded only Rs.600/-. The injuries suffered by the appellant include fracture of left zygoma, which may cause difficulty in taking normal food. Considering that aspect, this Court is inclined to award Rs.400/- more towards extra nourishment. 9. Towards disability compensation and loss of amenities together, learned Tribunal awarded Rs.13,440/-, MACA 657 of 2014 7 taking his monthly income @ Rs.4,000/-. We have fixed his notional income as Rs.10,000/-. So, for the disability alone, he is entitled to get Rs.33,600/- (10,000x12x14x2/100). After deducting Rs.13,440/-, he will get the balance amount of Rs.20,160/-, as enhancement under the head ‘disability compensation’. 10. Towards loss of amenities, the appellant claimed Rs.5,000/-. He had suffered fracture of distal end of radius and fracture of left zygoma, resulting in 2% permanent disability. Considering that aspect, this Court is inclined to award Rs.5,000/- towards loss of amenities. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.8,000/-|Rs.20,000/-|Rs.12,000/-| |Bystander<br>expenses|Rs.600/-|Rs.1,200/-|Rs.600/-| MACA 657 of 2014 8 |Extra nourishment|Rs.600/-|Rs.1,000/-|Rs.400/-| |---|---|---|---| |Disability<br>compensation|Rs.13,440/-|Rs.33,600/-|Rs.20,160/-| |Loss of amenities||Rs.5,000/-|Rs.5,000/-| |Total|||**Rs.38,160**/-| 11. Hence, the appellant is entitled to get Rs.38,160/- as enhanced compensation. 12. The 3rd respondent-Insurer is directed to deposit the enhanced compensation of Rs.38,160/- (Rupee Thirty Eight Thousand One Hundred and Sixty only), with 9% interest per annum, from the date of petition till the date of deposit, (excluding 114 days of delay in filing the appeal) before the Motor Accidents Claims Tribunal, Ottapalam, 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 his liabilities, if any, towards tax, balance court fee, legal benefit funds etc. MACA 657 of 2014 9 The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-