Maneesh v. Harikrishnan S/o Balakrishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938** **MACA.No. 393 of 2014 ()** **-----------------------AGAINST THE AWARD IN OPMV 973/2010 of MACT PALA DATED 28-02-2013** **APPELLANT/PETITIONER:** **-----------------------** ## **MANEESH** **S/O.THANKESHAN, VALAVATHUTHARA HOUSE, CHEMMANATHUKARA P.O., VAIKOM, NOW RESIDING AT POOVATHANI HOUSE, POOVARANY VILLAGE, POOVARANY P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT.** **BY ADVS.SRI.ABRAHAM MATHEW (VETTOOR) SMT.ELIZABETH OLIVER** **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. HARIKRISHNAN S/O.BALAKRISHNAN, KURUMBALIL HOUSE, CHEMMANATHUKARA KARA, VAIKOM VILLAGE, KOTTAYAM DISTRICT, PIN: 686 141.** **2. BABU K.Y.,** **S/O.YAHIYA RAWTHER, SHEEBA MANZIL, THEKKENADA, VAIKOM, KOTTAYAM DISTRICT, PIN: 686 141.** **3. THE NEW INDIA ASSURANCE CO. LTD.,** **REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM, PIN: 686 001.** **R3 BY ADV. SRI.GEORGE CHERIAN (SR.) R3 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.LATHA SUSAN CHERIAN R2 BY ADV. SRI.R.RAJASEKHARAN PILLAI R2 BY ADV. SMT.SABINA JAYAN R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.393 OF 2014** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of December, 2016 ## **JUDGMENT** ## Ravikumar, J. This appeal is preferred by the injured claimant seeking enhancement of compensation granted by the Motor Accidents Claims Tribunal, Pala in O.P.(MV)No.973/2010. The claim petition was filed by the appellant under Section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident occurred on 15.11.2009. He was a pillion rider on a motor cycle bearing Reg.No.KL 36/A 2892 which collied with another motor cycle bearing Reg.No.KL 36/6577 ridden by the first respondent. On sustaining injuries, he was admitted in Indo American Hospital,Vaikom and he remained there as an inpatient for a period of 99 days. The injuries resulted in permanent disability. It is in the said circumstances that seeking a total compensation of Rs.7 lakhs he filed the aforementioned claim petition. As per the impugned award, the MACA No.393/2014 2 Tribunal granted Rs.4,20,706/- with interest @ 7.5% per annum from the date of petition till realization. As noticed hereinbefore, the captioned appeal has been preferred seeking enhancement of the said compensation. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent. In view of the fact that there is no dispute regarding the liability to indemnify the insured owner of the offending vehicle, the sole question survives for consideration is whether the appellant is entitled to get enhanced compensation. In such circumstances, issuance of notice to the other respondents is dispensed with and we are proceeding to consider the appeal on merits at the admission stage itself. 3. The main grievance of the appellant is that disregarding his averment that he was working as a Supervisor in a private company in Rajasthan and was earning Rs.10,000/-, the Tribunal fixed the monthly income notionally at Rs.5,000/-. It is the further contention that the compensation granted under different heads such as loss of earnings, extra nourishment, loss of amenities etc. are on the lower side. MACA No.393/2014 3 4. The learned counsel appearing for the third respondent insurance company submitted that since the appellant has failed to establish his averments regarding occupation and income, the fixation of monthly income by the Tribunal cannot be said to be irrational. It is also submitted that fixation of monthly income as Rs.5,000/- in the said circumstances warrants no interference. It is also the submission of the learned counsel for the third respondent that the appellant was granted just compensation taking note of the injuries sustained by him in the accident and therefore no appellate interference is called for. 5. Having heard the learned counsel on both sides and perusing the records and going through the impugned judgment, we are of the view that an appellate interference is warranted in this case. With reference to the fixation of monthly income notionally, a careful analysis of the evidence on record would constrain us to hold that the Tribunal cannot be found fault with. The appellant had not adduced evidence to establish his averments regarding occupation and income. In such circumstances, the Tribunal is perfectly justified in fixing the monthly income notionally for calculation purpose. But the question is MACA No.393/2014 4 whether the fixation of Rs.5,000/- as monthly income warrants interference. The accident occurred on 15.11.2009 and the appellant was then aged 26 years. Taking note of the year of the accident, the age of the appellant at the relevant point of time and also taking the decision of the Hon'ble Apex Court in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. [( 2011) 13 SCC 236]** for guidance in the matter of notional fixation of the monthly income, we are of the view that it is proper to fix the monthly income of the appellant as Rs.6,000/- for calculation purpose. Accordingly, it is fixed. The Tribunal took the period of loss of earnings as six months. Evidently, in the accident the appellant sustained the following injuries : 1. Type II open fracture both bones of right leg. 2. Crush injury left foot dorsal aspect. 3. Fracture P1. 4. Fracture of heel of 2[nd] and 3[rd] metatarsal. 6. He remained as an inpatient for a period of 99 days. Ext.X1 would reveal that the injuries sustained in the accident resulted MACA No.393/2014 5 in permanent disability. Taking note of all aspects, we are of the view that the period of loss of earnings ought to have been taken as eight months especially taking note of Ext.A11 discharge summary. In such circumstances, taking the monthly income as Rs.6,000/- and the period of loss of earnings as eight months, the appellant would be entitled to get an additional compensation of Rs.18,000/- under the head loss of earnings. It is awarded. 7. The learned counsel appearing for the third respondent submitted that the Tribunal went wrong in identifying the multiplier. It is submitted that in the light of the schedule given in **Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC),** the multiplier applicable with reference to the age of the appellant at the time of the accident is 17. Evidently, the Tribunal took 18 as the multiplier. 8. The learned counsel appearing for the appellant contended that the Tribunal went wrong in not accepting the entire percentage of disability assessed under Ext.X1. Having gone through Ext.X1 and taking note of the reasons that constrained the Board to assess the MACA No.393/2014 6 disability, we are of the view that the Tribunal cannot be said to have committed a wrong which warrants an appellate interference in the matter of assessment of permanent disability. The Tribunal on going through Ext.X1 and the reasons for the assessment made thereunder took the whole body disability as 15%. We do not find any reason to interfere with the same. In such circumstances, a re-assessment of compensation under the head permanent disability is to be made by substituting the monthly income and also the multiplier. On such reassessment, the appellant would be entitled to get an additional compensation of Rs.21,600/- ( 6000 x 12 x 17 x 15% - 162000). 9. Towards extra nourishment, the Tribunal granted only an amount of Rs.1000/-. As noticed hereinbefore, the appellant had been an inpatient for a period of 99 days. Taking note of the fact that the hospitalization was in the year 2009, we are of the view that the rate of expenses towards extra nourishment ought to have been Rs.100/- per day. In that view of the matter, the appellant is entitled to get Rs.8,900/- additionally. It is granted. The nature of the injuries suggests that the dresses worn by the appellant at the time of the MACA No.393/2014 7 accident must have been damaged. Therefore, we are inclined to grant Rs.500/- more towards damage to clothing. 10. Towards pain and suffering and loss of amenities, we are of the view that the appellant is entitled to get enhanced compensation. The nature of the injuries explained hereinbefore and the impact of such injuries constrain us to hold that the appellant is entitled to get Rs.12,000/- each additionally under the heads pain and suffering and loss of amenities. In the light of the discussion as above, the appellant is entitled to get an additional compensation of Rs.73,000/-. It is awarded. The said additional compensation will bear interest @ 8% per annum from the date of petition till realization. The third respondent 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. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 16/12/2016