Mahesh s/o Apputt y v. Retheesh s/o Sivadasan, K.S. Anil Kumar and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 3RD DAY OF DECEMBER 2014/12TH AGRAHAYANA, 1936** **MACA.No. 2629 of 2014 () -------------------------** **AGAINST THE AWARD IN OPMV 1629/2012 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL KOZHIKODE DATED 21.5.2014** **APPELLANT/PETITIONER: ------------------------** **MAHESH SON OF APPUTTY, NEELIYADATH HOUSE, P.O.KARUVASSERRY KOZHYKODE DISTRICT - 673 010** **BY ADV. SRI.JACOB ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. RETHEESH SON OF SIVADASAN, MANNALATH HOUSE NEAR BILATHIKULAM SIVA TEMPLE, P.O.ERANHIPALAM KOZHIKODE - 673 006.** **2. K.S.ANIL KUMAR SON OF SOMASUDARAN, KATTOOR HOUSE, NADUKANDY PARAMBA P..GURUVAYURAPPAN COLLEGE, KOZHIKODE -673 013.** **3. ORIENTAL INSURANCE CO.LTD MAVOOR ROAD BRANCH, KINGSWAY BUILDING, FIRST FLOOR MAVOOR ROAD JUNCTION, KOZHIKODE - 673 001.** **R3 BY ADV. SMT.K.S.SANTHI(B/O,NO MEMO) R BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.A.C.A.No.2629 of 2014 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 3[rd] day of December 2014 ## **JUDGMENT** ## **Ramachandran Nair, J.,** This appeal is filed against the judgment of the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV) No. 1629/12. The claimant has filed this appeal aggrieved by the inadequacy of the compensation. 2. The accident occurred on 10.9.2006, while he was riding a scooter, which was hit down by the offending motor cycle causing serious injuries to the appellant. He was treated in Medical College Hospital, Kozhikode as inpatient. 3. The appellant had sustained the following injuries viz., fracture to both bones of left leg, depressed fracture frontal bone extending to frontal sinus, pneumocephalus and axial haematoma adjacent to fracture site, fracture of nasal bone and nasal septum with ethmoid haemosinus. Ext.A4 is the discharge summary which will show that he was admitted on 11.9.2006 and M.A.C.A.No.2629 of 2014 **==> picture [14 x 9] intentionally omitted <==** discharged on 29.9.2006. He underwent a surgery on 23.9.2006. There was further inpatient treatment nearly two years thereafter, which is supported by Ext.A4 reference card, and it shows that, he was again admitted on 18.3.2008 and discharged on 21.3.2008. The Tribunal relied upon Exts.A9 & A10, which will give the treatment details concerning the petitioner in the Medical College Hospital, Kozhikode. 4. Learned counsel for the appellant at the outset submitted that even though Rs. 8016/- was claimed as medical expenses, the Tribunal granted only Rs. 5,153/- and some of the medical bills were not accepted merely since they did not contain the name of the appellant. With regard to disability, which has been caused to the appellant, it is submitted that there is 20% disability to the left eye. 5. Ext.C1 is the disability certificate. There the disabilities of the applicant is noted as follows: - _1.Right knee partial ankylosis 180 degree to 110 degree - 2%_ - _2.Right ankle partial ankylosis -90 degree to 105 degree-9 %_ _Physical disability 11% ( locomotor 5%)_ . _Occupational disability – 5%_ . 6. At the end of the report, it is stated that visual M.A.C.A.No.2629 of 2014 **==> picture [14 x 9] intentionally omitted <==** disability is 20%. The same has been issued by the Medical Board attached to the Government General Hospital, Kozhikode. 7. He was aged 30 at the time of the accident and the multiplier adopted is 16. According to the learned counsel for the petitioner the monthly income assessed was only at Rs. 3,500/- and being a coolie and daily labourer it should have been at a reasonable rate. Learned counsel for the Insurance Company submitted that the income assessed by the Tribunal is just and fair. In this context we refer to the decision of the apex Court reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance insurance Company Ltd. (2011 (13)SCC 236)**_ _(para13)_ . That was in respect of a coolie aged 35 years and the monthly income claimed is Rs. 4500/- per month. The Tribunal reduced it and adopted only to Rs.3000/- and the relevant year is 2004. The Apex Court held that the claim made by the applicant therein that he was earning Rs. 4500/- per month could have been accepted especially, since documentary evidence may not be there, as far as the claim raised by the daily labourers are concerned. We reproduce paragraph 14 of the said judgment. _“We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence_ M.A.C.A.No.2629 of 2014 :4: _of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time._ ” 8. In the light of the above, we will be justified in adopting Rs. 4500/- as monthly income especially, since the accident occurred in the year 2006 and the claim is not exorbitant. 9. The Tribunal has assessed the compensation in the following manner : |Sl.No.|Compensation claimed<br>under different heads|Amount allowed<br>(in Rs)|Basis| |---|---|---|---| |1|Loss of earnings|7000|3500x2months| |2|Transport to hospital|500|| |3|Damage to clothing and<br>articles|500|| |4|Extra nourishment|1000|| |5|Bystander's expenses|3450|150x23 days| |6|Treatment expenses|5153|| |7|Pain and sufferings|15000|| |8|Loss of future earning<br>power|33600|3500x12x16x5/1<br>00| |9|Loss of amenities|8000|| |||74203|| ## 10. In the light of the fact that this Court is accepting Rs. 4,500/-as monthly income, the compensation assessed by the Tribunal will have to be recomputed. Towards partial loss of earning we award at the rate of Rs. 4,500/- per month for three months i.e. Rs. 13500/-. As regards bystander expenses, we M.A.C.A.No.2629 of 2014 **==> picture [14 x 9] intentionally omitted <==** grant an amount of Rs.5750/- by taking Rs. 250/- per day. As regards treatment expenses, the Tribunal has rejected some of the receipts. But it is clear that he has undergone various treatments. In the light of the settled legal position that as regards treatment expenses, a proper assessment can be made by the Tribunal and this Court, even though, some of the bills are absent, we award an amount of Rs. 7000/- for treatment expenses. The amount awarded towards pain and suffering was Rs. 15,000/-. The injuries suffered was severe and he had been in patient treatment for several days. Initially, he was admitted on 11.9.2006 and discharged on 29.9.2006. He was again admitted on 18.3.2008 and discharged on 21.3.2008. Multiple injuries have been caused to him. Apart from the physical pain there would have been metal shock and pain consequent to the injuries sustained. Therefore, we award an amount of Rs. 30,000/- towards pain and suffering. 11. As regards the disability sustained, the tribunal has taken the percentage as 5% towards loss of earning capacity. Since, we have assessed the monthly income as Rs.4,500/- the compensation towards the same will be Rs.4,500x12x17x5/100 =Rs. 45,900/-. M.A.C.A.No.2629 of 2014 :6: 12. Apart from the said disability, he had sustained 20% visual disability also. Of course, separate assessment has not been made, as regards the impact of the same, on the loss of earning capacity of the appellant. Since the disability of the appellant is permanent in nature, we will be justified in granting due compensation under that head also. Therefore, for the permanent disability, viz., visual disability, we award an amount of Rs. 25,000/- also. In view of the disability sustained, the appellant will not be able to enjoy all amenities as before and there will be loss of enjoyment to life also. After considering the physical disabilities as well as disability due to loss of partial vision of an eye, we fix an amount of Rs.20,000/-towards loss of amenities and loss of enjoyment of life. ## 13. We modify the award as follows: |Sl.No.|Compensation claimed<br>under different heads|Amount allowed<br>(in Rs)|Basis| |---|---|---|---| |1|Loss of earnings|13500|4500x3months| |2|Transport to hospital|500|| |3|Damage to clothing and<br>articles|500|| |4|Extra nourishment|1000|| |5|Bystander's expenses|5750|250x23 days| |6|Treatment expenses|7000|| |7|Pain and sufferings|30000|| |8|Loss of future earning<br>power|45900|4500x12x17x5/1<br>00| |9|Loss of amenities and<br>loss of enjoyment in<br>life|20000|| M.A.C.A.No.2629 of 2014 :7: |10|Disability (visual)|25000|| |---|---|---|---| ||Total|1,49,150|| ||||| (Rupees One lakh Fourty nine Thousand One hundred and Fifty only) 14. We are of the view that the interest at the rate of 8% p.a. is too low and we fix the interest at the rate of 9% p.a from the date of petition by relying upon the decision of the apex court reported in **Supe Dei(Smt.) & Ors. v. National Insurance Co. Ltd. and Anr.** [(2009)4 SCC 513]. The Insurance Company is directed to deposit the entire amount as per the modified award along with interest at the rate of 9% p.a from the date of petition, less the amount already deposited within a period of one month from the date of receipt of a copy of this judgment. The appeal is allowed as above. Sd/- ## **T.R.RAMACHANDRAN NAIR (JUDGE)** Sd/- **P.V.ASHA (JUDGE)** AL/- True copy P.A to Judge M.A.C.A.No.2629 of 2014 **==> picture [14 x 9] intentionally omitted <==** fair 11.12.