M.A.C.A.No.1287 of 2013

M.A.C.A.No.1287 of 2013 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943 MACA NO. 1287 OF 2013** **AGAINST THE AWARD DATED 09.01.2013 IN OP(MV) NO.1322/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/PETITIONER:** BINSON BABU RESIDING AT ONASSERIL HOUSE, AMALAGIRI P O, KOTTAYAM DIST. BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** 1 ABRAHAM JOHN *(DELETED) RESIDING AT T.C. 32/1046, CHALUMULLU, ALL SAINTS JUNCTION, THIRUVANANTHAPURAM-695010 2 JINO JOJAN *(DELETED) RESIDING AT VETTIKKATTU(VIJAYA BHAVAN) KUTTAPUZHA, THIRUVALLA-689103 **(RESPONDENT NO 1 AND 2 ARE DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 7/04/2021 IN IA 1/2021 IN MACA 1287/2013)** 3 THE UNITED INDIA INSURANCE COMPANY LTD KOTTAYAM-686001 R3 BY ADV SMT.S.JAYASREE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2021, THE COURT ON 07.09.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.1287 of 2013 2 ## **T.R.RAVI, J.** ## **-------------------------------------M.A.C.A.No.1287 of 2013** **-----------------------------------------------** Dated this the 7[th] day of September, 2021 ## **J U D G M E N T** The case of the appellant is that while he was riding a motor cycle with his cousin on pillion, on 13.2.2010, they were knocked down by a speeding car which was being driven in a rash and negligent manner by the 2[nd] respondent. The appellant sustained serious injuries. He was taken to the S.H.Medical Centre, Nagampadam and from there he was referred to the Chazhikattu Hospital, Thodupuzha where he continued treatment for his injuries. The injuries sustained by the appellant were comminuted fracture of right acetabulum, fracture of neck of right femur, fracture of inferiour ramus of right pubis, undisplaced fracture of right sacral ala at SI vetebral level, multiple bilateral rib fractures, abrasions and contusions all over the body and acute body pain. He was hospitalised from 13.2.2010 to 9.3.2010 (24 days). The Medical Board constituted by the Superintendent of the Medical College Hospital, Kottayam assessed that he is suffering from 28.78% permanent disability. The 1[st] respondent was the owner of the offending vehicle and the 3[rd] respondent was the insurer. M.A.C.A.No.1287 of 2013 3 2. The appellant preferred the claim contending that he was working as a Supervisor in a hotel at the time of the accident and was earning a monthly income of Rs.4,900/- along with free food. A sum of Rs.5,50,000/- was claimed towards compensation. The 3[rd] respondent contested the claim and contended that the claim was excessive and that the accident occurred due to the negligence of the appellant. Exhibits A1 to A22 and Ext.X1 disability certificate were marked. The Tribunal granted a total compensation of Rs.3,42,275/-. The appellant has filed this appeal seeking enhancement of the compensation granted by the Tribunal. 3. Heard Sri Nimod A.R. on behalf of the appellant and Smt.S.Jayasree on behalf of the 3[rd] respondent. 4. The first contention of the appellant is that the notional income fixed by the Tribunal was very low. The accident happened on 13.2.2010. The appellant had produced Ext.A12 certificate to show his monthly income as Rs.4,900/-, but the Tribunal did not accept the same since the person who issued the certificate was not examined and the wages register, muster roll or vouchers were not produced. The Tribunal proceeded to fix the notional income as Rs.4,000/-. Relying on the decision of the Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance** M.A.C.A.No.1287 of 2013 4 **Insurance Co.Ltd.,** reported in **[AIR 2011 SC 2951]** , it is contended that since the accident occurred 6 years after the accident in **Ramachandrappa (supra),** the Tribunal ought to have fixed the notional income at least at Rs.4,900/- claimed by the appellant. The second contention of the appellant is that the Tribunal without any reason whatsoever, scaled down the disbility of 28.75% found by the Medical Board to 16%. The third contention of the appellant is that the Tribunal has calculated the compensation treating the age of the appellant as 27 instead of 25. Ext.A10 shows that the date of birth of the appellant is 09.5.1985 and on the date of the accident he was aged 24 years, 9 months and 4 days. It is hence contended that the multiplier adopted ought to have been 18. The fourth contention of the appellant is that, having regard to the age of the appellant at the time of the accident, the serious nature of the injuries suffered by him and the permanent disability assessed by the Medical Board, the Tribunal ought to have granted additional amounts for loss of future prospects. The fifth contention of the appellant is that the amounts granted by the Tribunal under the heads "pain and suffering" and "loss of amenities" are very low and are liable to be increased in accordance with the seriousness of the injury. M.A.C.A.No.1287 of 2013 5 5. The counsel appearing for the insurer fairly submitted that in the light of the law laid down by the Hon'ble Supreme Court, the claim of the appellant regarding the notional income and disability assessed by the Medical Board are liable to be granted. However, the counsel submitted that the appellant who had not suffered serious disability cannot be granted compensation towards loss of future prospects as claimed by him. 6. The claim made by the appellant under different heads of compensation, and the amount which has been awarded by the Tribunal are shown in the form of a table: |Sl.<br>No.|Head of the Claim|Amount<br>Claimed(Rs.)|Amount<br>Awarded(Rs.)| |---|---|---|---| |1|Transportation|Rs.10,000/-|Rs.4,500/-| |2|Extra Nourishment|Rs.7,000/-|Rs.6,075/-| |3|Damage to clothings|Rs.2,000/-|Rs.500/-| |4|Bystander expenses|Rs.16,000/-|Rs.4,600/-| |5|Medical Expenses|Rs.1,50,000/-|Rs.1,08,040/-| |6|Loss of earning|Rs.44,100/-|Rs.28,000/-<br>(4000x7)| |7|Pain and Sufferings|Rs.50,000/-|Rs.35,000/-| |8|Loss of amenities|Rs.30,000/-|Rs.25,000/-| |9|Permanent Disability|Rs.2,00,000/-|Rs.1,30,560/-<br>(4000x12x16x<br>17/100)| |10|For bleak prospects<br>of marriage|Rs.50,000/-|NIL| ||Total|Rs.5,59,100/-<br>limited<br>to<br>Rs.5,50,000/-|Rs.3,42,275/-| M.A.C.A.No.1287 of 2013 6 7. I have considered the contentions of the appellant and the respondent. Following the dictum laid down in Ramachandrappa, I am of the opinion that the appellant is entitled to have the notional income fixed as Rs.4,900/- and consequential changes are to be made in the compensation to be granted under various heads. In **Pappu Deo Yadav v. Naresh Kumar and others (AIR 2020 SC 4424)** , a data entry operator who lost a limb and whose permanent disability was assessed at 65% was granted an addition of 40% towards future prospects. In **Erudhaya Priya v. State Express Transport Corporation Ltd.,** reported in **[2020 SCC OnLine SC 601],** the victim whose permanent disability was assessed at 31.1% was granted 50% increase in the income assessed, towards future prospects. In the judgment in M.A.C.A.No.1860 of 2015, a Division Bench of this Court upheld the grant of 30% increase towards future prospects in the case of a farm worker, who was 46 years old and suffered 8% permanent disability. It has been held time and again by the Hon'ble Supreme Court that "just compensation" is to include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Applying the above principles, I am of the opinion that the appellant who has been M.A.C.A.No.1287 of 2013 7 assessed to have 28.75% permanent disability, who was only 25 years old at the time of the accident and had suffered very serious injuries involving his spine, hip and thigh, and was kept out of employment according to the Tribunal for atleast 7 months, is entitled to be granted 40% increase towards loss of future prospects. The notional income to be taken into account for arriving at the compensation towards permanent disability would then be Rs.6,860/-. I am of the opinion that the Tribunal has granted just compensation as regards the other heads of compensation. 8. In the light of the above findings, the compensation awarded by the Tribunal is liable to be enhanced and modified in the manner shown in the table below: |Sl.<br>No.|Head of the<br>Claim|Amount<br>Claimed(Rs.)|Amount<br>Awarded(Rs.)|Amount<br>as<br>modified by this<br>Court(Rs.)| |---|---|---|---|---| |1|Transportation|Rs.10,000/-|Rs.4,500/-|Rs.4,500/-| |2|Extra<br>Nourishment|Rs.7,000/-|Rs.6,075/-|Rs.6,075/-| |3|Damage<br>to<br>clothings|Rs.2,000/-|Rs.500/-|Rs.500/-| |4|Bystander<br>expenses|Rs.16,000/-|Rs.4,600/-|Rs.4,600/-| |5|Medical Expenses|Rs.1,50,000/-|Rs.1,08,040/-|Rs.1,08,040/-| |6|Loss of earning|Rs.44,100/-|Rs.28,000/-<br>(4000x7)|Rs.34,300/-<br>(4900x7)| M.A.C.A.No.1287 of 2013 8 |7|Pain<br>and<br>Sufferings|Rs.50,000/-|Rs.35,000/-|Rs.35,000/-| |---|---|---|---|---| |8|Loss of amenities|Rs.30,000/-|Rs.25,000/-|Rs.25,000/-| |9|Permanent<br>Disability|Rs.2,00,000/-|Rs.1,30,560/-<br>(4000x12x16<br>x17/100)|Rs.4,26,006/-<br>(6860x12x18x<br>28.75/100)| |10|For<br>bleak<br>prospects<br>of<br>marriage|Rs.50,000/-|NIL|NIL| ||Total|Rs.5,59,100/-<br>limited<br>to<br>Rs.5,50,000/-|Rs.3,42,275/-|Rs.6,44,021/-| 9. Even though the appellant had claimed a sum of Rs.5,59,100/- and restricted the claim to Rs.5,50,000/-, I find that he is entitled to a just compensation of Rs.6,44,021/- in the light of the reasonings stated above. It is well settled that there is no restriction in awarding a compensation more than the amount claimed in the claim petition. **[See Nagappa v. Gurudayal Singh** ## **2003(1)KLT 115(SC)]** . 10. In the result, the appeal is allowed. The compensation granted by the Tribunal is enhanced by a further sum of **Rs.3,01,746/- (Rupees Three lakhs One Thousand Seven Hundred and Forty Six only)** with interest at 9% per annum on the enhanced compensation from 18.01.2011 till the date of realisation, with proportionate costs. The 3[rd] respondent shall deposit the additional compensation granted in this appeal along M.A.C.A.No.1287 of 2013 9 with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law. Sd/- **T.R.RAVI JUDGE** dsn