MACA Nos. 1891 & 1944 of 2012

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 ``` ``` MACA NO. 1891 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 2013/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## `- APPELLANT/PETITIONER :` ``` JAYAMON U CHERIAN AGED 39 YEARS S/O.U.P.CHERIAN, ULLOPPILLIL HOUSE, KALAMPOOR P.O., PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI SRI.J.VIVEK GEORGE ``` ## `- RESPONDENTS/RESPONDENTS :` ``` 1PAULOSE S/O.JOHN, 7/481, KOOMULLIL KARAVATTE VEEDU, MANEED P.O., (VIA) PIRAVOM, ERNAKULAM DISTRICT, PIN 686726. 2A.C.BENNY S/O.CHACKOCHAN, ALUNKAL HOUSE, EZHAKKARANADU, MANEED VILLAGE, PIRAVOM, PIN 686726. ``` ``` 3NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, ERNAKULAM, COCHIN-682016. ``` ``` BY ADV SRI.A.R.GEORGE, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2022, ALONG WITH MACA.1944/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 ``` ``` MACA NO. 1944 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 2094/2004 MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## `APPELLANT :-` ``` ANISH K.K. AGED 30 YEARS S/O SRI. KRISHNAN, KADASSERRIL HOUSE, KARIKKODE, MULANTHURUTHY P.O., MULANTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI - RESPONDENTS / RESPONDENTS : ``` ``` 1PAULOSE S/O JOHN, 7/481, KOOMULLIL KARAVATTE VEEDU, MANEED P.O., (VIA) PIRAVOM, ERNAKULAM DISTRICT, PIN:686 726. ``` ``` 2A.C.BENNY S/O CHACKOCHAN, ALUNKAL HOUSE, EZHAKKARANADU, MANEED VILLAGE, PIRAVOM, PIN:686 726. 3NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, ERNAKULAM, COCHIN-682 016. ``` ``` BY ADV SRI.A.R.GEORGE,SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2022, ALONG WITH MACA.1891/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1891 & 1944 of 2012 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 09[th] day of November, 2022** These appeals are originated from a common award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 30.12.2011 respectively in O.P.(MV) Nos.2094 of 2004 and 2013 of 2004. 2. The appellants in both appeals are the victims of a motor accident that occurred at 10.00 am on 02.06.2004 at Pullemukal Bhagom, Pulikkamali. The Tribunal has awarded Rs.3,25,977/- and Rs.58,163/- respectively as compensation to each of the appellants. Aggrieved by the quantum awarded by the Tribunal as compensation, the petitioners before the Tribunal have approached this Court in the appeal on hand. 3. The parties to these appeals will hereinafter be referred to as petitioner and respondent Nos.1 to 3 in accordance with their status in the Original Petition before the Tribunal. ``` MACA Nos.1891 & 1944 of 2012 ``` ``` 4 ``` 4. It is contended by Smt.Rajani K.N, the learned counsel for the petitioners that the monthly income was fixed by the Tribunal notionally as Rs.3,000/- and Rs.3,500/- respectively in the above cases for the of of purpose computation compensation. According to her, the fixation being unjust and unreasonable, modification of the same in interference is warranted. The learned counsel seeks for a fixation on the basis of the fixation of the same by the Apex Court in _**Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd**_ [(2011) 13 SCC 236]. It is further contended by the learned counsel that the calculation of compensation under various heads also fall on the lower side. According to her the evidence adduced by the petitioners has not been appreciated by the Tribunal in the proper perspective and therefore, the petitioners are aggrieved. 5. The learned counsel for the 3[rd] respondent, Shri.A.R.George has contended that the grant of compensation by the Tribunal is just and reasonable and it do not call for ``` MACA Nos.1891 & 1944 of 2012 ``` ``` 5 ``` interference. According to him, the petitioners in the respective Original Petitions claimed only Rs.3,000/- and Rs.3,500/respectively as their monthly income and therefore, the Tribunal cannot be found fault with in fixing those itself as their monthly income and to assess the compensation payable on its basis. 6. This Court has noticed that the petitioner in O.P. (M.V) No.2094 of 2004 has approached this Court in MACA No.1944 of 2012 and in that Original Petition seeking compensation filed before the Tribunal, he specifically claimed to be working as a helper in M/s.Iris Condiments Pvt.Ltd. and earning Rs.3,000/- as monthly income. He was aged only 22 years at the relevant time of accident. The Tribunal had taken the monthly income claimed itself. This Court notices that in _**Ramachandrappa**_ supra the Apex Court calculated compensation in the case of a Coolie worker who had met with a motor accident in the year 2004 as Rs.4,500/-. The petitioner being a man unable to establish the monthly income and the monthly income claimed being a notional one, this Court is ``` MACA Nos.1891 & 1944 of 2012 ``` ``` 6 ``` inclined to fix it proportionately on the basis of the fixation by the Apex Court in **Ramachandrappa** supra. 7. The period taken by the Tribunal for calculation of compensation for loss of earning appears to this Court low when viewed in the backdrop of the injuries sustained and the duration of treatment undergone by him. This Court finds it reasonable to calculate loss of earning for 8 months and to grant Rs.36,000/- (4,500 x 8). Rs.16,000/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.20,000/- as additional compensation under that head. 8. Under the head bystander expenses, the Tribunal has fixed Rs.150/- per day for 54 days for calculation and Rs.8,250/awarded is found just and reasonable. Under the head extra nourishment and transportation expenses, the Tribunal has awarded Rs.1,000/- each and this Court is inclined to re-fix the compensation to Rs.3,000/- under each heads and therefore the petitioner will get Rs.2,000/- each as additional compensation. ``` MACA Nos.1891 & 1944 of 2012 ``` ``` 7 ``` Under the head damages to clothing Rs.400/- being the sum stands awarded by the Tribunal, Rs.600/- is granted as additional compensation. 9. Under the head, pain and suffering, the Tribunal has awarded only Rs.22,000/- and this Court is inclined to modify the same to Rs.40,000/-, so that the petitioner will get Rs.18,000/- additionally. Under the head, loss of amenities and enjoyments in life, the Tribunal has awarded only Rs.18,000/and this Court is inclined to enhance it to Rs.25,000/- so that the petitioner will get Rs.7,000/- additionally. When compensation for permanent disability is reassessed on the basis of the monthly income fixed by this Court as Rs.4,500/- and maintaining the other factors considered by the Tribunal, Rs.2,62,440/- (Rs.4,500 x 12 x 18 x 27%) is arrived at as the sum payable. Rs.1,74,960/- being the compensation stands awarded by the Tribunal, the petitioner will get Rs.87,480/- as additional compensation. ``` MACA Nos.1891 & 1944 of 2012 ``` ``` 8 ``` 10. In the above reassessment, the petitioner in MACA No.1944 of 2012 is entitled to get Rs.1,37,080/- (Rupees One Lakh Thirty Seven Thousand and Eighty only), and the said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 11. In MACA No.1891 of 2012, the petitioner was aged 31 years at the relevant time of motor accident. Ext.A13 is the wound certificate and Ext.A14 is the discharge summary which show that he had sustained multiple fractures at mandible and lacerated wounds on various parts of the body. Wound debridement, open reduction and internal fixation were done as procedures of treatment. The inpatient treatment continued for 6 days. 12. The learned counsel for the appellant has contended that the compensation awarded by the Tribunal is on the lower side. Shri.A.R.George, the learned counsel for the 3[rd] respondent has contended that the compensation stands awarded ``` MACA Nos.1891 & 1944 of 2012 ``` ``` 9 ``` by the Tribunal being just and reasonable, interference is uncalled for. 13. The petitioner in O.P.(MV) No.2013 of 2004 claimed to be an Accountant in M/s.Iris Condiments Pvt.Ltd. earning Rs.5,000/- monthly. But, either oral or documentary evidence was not adduced to substantiate his claims. In the above circumstances, the Tribunal was constrained to fix the monthly income notionally. This Court finds it reasonable to adopt the fixation of monthly income in _**Ramachandrappa**_ supra and to fix Rs.4,500/- as the monthly income of the petitioner. Two months’ period taken by the Tribunal for assessment of compensation for loss of earning being a reasonable period, this Court is inclined to recalculate it only on the basis of the monthly income enhanced to Rs.4,500/-. In the above re-assessment, the petitioner will get Rs.9,000/- as compensation. Rs.7,000/- being the sum stands awarded, the petitioner will get Rs.2,000/- as additional compensation. Under the head bystander expenses, Rs.900/-being the sum awarded by ``` MACA Nos.1891 & 1944 of 2012 ``` ``` 10 ``` the Tribunal, this Court is inclined to modify it to Rs.1,200/- and thereby the petitioner will get Rs.300/- more. 14. Under the head transportation expenses, this Court is inclined to modify the compensation stands awarded to Rs.1,500/- so that the petitioner will get Rs.700/- additionally. Under the head extra nourishment also this Court is inclined to modify the sum stands awarded to Rs.1,500/-and thereby the petitioner will get Rs.1,000/- additionally. Under the head Damages to clothing, this Court is inclined to grant Rs.600/more. Under the head pain and suffering, the sum stands awarded by the Tribunal being Rs.12,000/- this Court is inclined to enhance it to Rs.20,000/- and therefore the petitioner will get Rs.8,000/- additionally. Under the head loss of amenities and enjoyments in life, the Tribunal has awarded Rs.8,000/- and this Court is inclined to modify it to Rs.12,000/-, so that the petitioner will get Rs.4,000/- additionally. 15. In the above reassessment, the petitioner in MACA No.1891 of 2012 will get Rs.16,600/- (Rupees Sixteen ``` MACA Nos.1891 & 1944 of 2012 ``` ``` 11 ``` Thousand Six Hundred only) as additional compensation and that would carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition, till the date of realisation. 16. The 3[rd] respondent in both cases shall deposit the additional sum found payable with interest fixed as above and also the original sum with interest fixed by the Tribunal (if not paid) within a period of two months from the date of receipt of a certified copy of this judgment. Both appeals stand allowed accordingly. Sd/- **MARY JOSEPH** SMA **JUDGE**