MACA.No.1008 of 2008

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938** **MACA.No. 1008 of 2008 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 28/2001 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 06-06-2007** **APPELLANT/PETITIONER IN THE O.P.(M.V.):** ## **------------** **RAMESH, S/O.SARASAN, AGED 42 YEARS THARIPPAPPOYIL HOUSE, MAILALLAMPARA POST, PUTHUPPADI, THAMARASSERY VIA., KOZHIKODE.** ## **BY ADVS.SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN** ## **RESPONDENTS/RESPONDENTS IN THE O.P.(M.V.):** ## **--------------** **1. BABU, S/O. APPUR, AGED 45 YEARS, KADAVANTHATTIL HOUSE, THAMARASSERY AMSOM DESOM, KUMARASWAMY ROAD, CHELANNUR POST, KOZHIKODE.** ## **2. THE NEW INDIA ASSURANCE CO.LTD. TRIPURI BUILDING, EAST NADAKKAVU, KOZHIKODE** **R1 BY ADV. SRI.T.G.RAJENDRAN R2 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1008 of 2008** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of August, 2016** ## **J U D G M E N T** ## **Ravikumar,J.** This appeal is preferred by the injured petitioner seeking enhancement of the compensation. He filed the claim petition seeking for a total compensation of Rs.2 lakhs for the injury sustained by him in a motor vehicle accident that occurred on 3.9.2000. The appellant was standing on the road side on that day at 9.30 p.m. when the offending vehicle viz. an autorickshaw bearing registration No.KL-11E-2327 knocked him down. Consequently he sustained injuries. He was immediately taken to the Government General Hospital, Kozhikode. Subsequently, he was referred to Medical College Hospital, Kozhikode and he underwent treatment there. It is in the said circumstances that the aforesaid claim petition was filed seeking compensation for M.A.C.A.No.1008 of 2008 2 the injuries sustained. Before the Tribunal no oral evidence was adduced by both sides. On the side of the appellant three documents were actually got marked as Exts.A1 to A3 though in the appendix only two documents were shown as marked. But at the same time it is evident from the judgment itself that the OP ticket was also marked as Ext.A3. The Tribunal considered the evidence on record and the rival contentions and passed the impugned award for a total compensation of Rs.6,000/-. It is in the said circumstances that the captioned appeal has been preferred seeking enhancement of the quantum of compensation. 2. We have heard the learned counsel for the appellant and the learned counsel appearing for the 2[nd] respondent, insurer of the offending vehicle. 3. It is submitted by the learned counsel on both sides that the only question to be decided in this appeal is regarding the entitlement of the appellant for enhancement of the compensation. 4. The learned counsel for the appellant submitted M.A.C.A.No.1008 of 2008 3 that a perusal of the impugned judgment itself would reveal that the Tribunal has not properly applied its mind and granted only a consolidated amount of Rs.6,000/- as compensation. It is submitted that the judgment itself would reveal that the Tribunal took note the fact that the appellant had sustained fracture of left clavicle besides the other injuries. It is submitted that in fact Exts.A2 and A3 would reveal that besides fracture of left clavicle he had also sustained fracture on radius. 5. The learned counsel appearing for the second respondent insurer submitted that though the Tribunal had not specifically stated the heads under which the compensation has been granted, the nature of the injuries would indicate that the Tribunal has actually granted adequate compensation commensurating the injuries sustained. 6. We have gone through the impugned judgment. It would reveal that there is absolute absence of any discussion with respect to the nature of the injuries M.A.C.A.No.1008 of 2008 4 sustained by the appellant. It would also reveal that the Tribunal also took note of the fact that Ext.A3 would reveal that X-ray had been taken and it revealed that he had sustained fracture of left clavicle. Exts.A2 and A3 would reveal that besides fracture on left clavicle the appellant had also sustained fracture on radius. True that he had other injuries as well. As stated hereinbefore, those aspects were not properly dealt with and the Tribunal only granted a consolidated amount of Rs.6,000/- as compensation. In the light of the evidence on record and after perusing the impugned judgment, we are of the considered view that it is an eminently fit case where the compensation has to be enhanced by invoking the appellate jurisdiction. 7. We have already taken note of the fact that the appellant had sustained fracture of left clavicle and also radius besides other injuries. In the said circumstances, we are of the view that the appellant must have had loss of earnings for a period of four months as according to us, such a period of convalescence is required and he would not M.A.C.A.No.1008 of 2008 5 have earned anything during such period. Though the appellant had stated that he is a butcher by profession he had not adduced any evidence to establish that it was his occupation and at any rate, he had not adduced anything to prove his income. In such circumstances, we are of the view that the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** should act as a guidance for fixing the monthly income of the appellant for calculation purpose. That was a case where the Hon'ble Apex Court fixed the monthly income of a coolie who met with an accident in the year 2004 as Rs.4,500/- for calculation purpose. This accident occurred about four years prior to the said accident. Therefore, we are inclined to take Rs.2,500/- as monthly income for the said purpose. In such circumstances, towards loss of income, the appellant is entitled to get an amount of Rs.10,000/-. The nature of the injures mentioned hereinbefore sustained by the appellant in the accident 6 M.A.C.A.No.1008 of 2008 would suggest that he had to endure enormous pain. Hence, he is entitled to get an amount of Rs.20,000/towards pain and suffering. It is awarded. Towards miscellaneous expenses viz. transportation expenses, bystander's expenses, extra nourishment, damage to clothing etc., we are inclined to grant an amount of Rs.6,000/- and to adjust the amount awarded by the Tribunal on that count. In view of the nature of the injuries and the period of convalescence we are inclined to grant Rs.10,000/- under the head loss of amenities. In the light of the discussion as above the appellant is entitled for a total compensation Rs.46,000/- including the amount granted by the Tribunal under the impugned award. Therefore the appellant would be entitled to get an additional compensation of Rs.40,000/- (Rupees forty thousand only). In the light of the aforesaid discussion, this appeal is allowed. The appellant is entitled to an additional compensation of Rs.40,000/- (Rupees forty thousand only). It will carry interest at the rate of 8% per annum from the 7 ## M.A.C.A.No.1008 of 2008 date of petition till realisation. The second respondent insurer is directed to deposit the said amount along with interest thereon, within a period of one month from the date of receipt of a copy of this judgment, failing which the amount remaining to be paid will carry interest at the rate of 9%. There will be no order as to costs. Sd/- **JUDGE** Sd/- **C.T. RAVIKUMAR** **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/