MANOJ KUMAR @ MANOJ S/O.VELUKUTTY v. MUKUNDAN P. and BAJAJ ALLIANCE GENERAL INSURANCE

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939 MACA.No. 2451 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 216/2009 of M.A.C.T., MANJERI DATED 26-06-2012 APPELLANT(S)/APPELLANTS: ------------------------------- MANOJ KUMAR @ MANOJ S/O.VELUKUTTY, THACHUVATH HOUSE, PATTARKADAVU, PANAKKAD AMSOM, MALAPPURAM DISTRICT. BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI RESPONDENT(S):RESPONDENTS ----------------------------------- ## 1. MUKUNDAN P. S/O.P.K.S.NAIR, PRABHATHAM HOUSE, THENHIPALAM P.O., MALAPPURAM DISTRICT-673 635. ## 2. BAJAJ ALLIANCE GENERAL INSURANCE VTH FLOOR, ARCHID BUILDING, CHEROOTTY ROAD, KOZHIKODE DISTRICT, PIN-673 001. R2 BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A No.2451 OF 2012 ==========================** Dated this the 30[th] day of August, 2017 ## **JUDGMENT** _Ravikumar, J._ In a collision between two motor cycles viz., one bearing Reg.No.KL-10/AB-3586 and the other bearing Reg.No.KL-10/Y8393, the appellant/petitioner, who was the pillion rider on the motor cycle with Reg.No.KL-10/AB-3586 sustained serious injuries. He remained as an inpatient for a period of 11 days. It is in the said circumstances that he filed O.P.(MV)No.216/2009 before the Motor Accidents Claims Tribunal, Manjeri under Section 166 of the Motor Vehicles Act claiming a total compensation of Rs.1,00,000/-. As per the impugned award, the Tribunal awarded an amount of Rs.79,078/as compensation along with interest at the rate of 9% per annum from the date of petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been **M.A.C.A.2451/2012** 2 preferred. 2. We have heard the learned counsel for the appellant and the learned counsel for the second respondent. In view of the absence of any dispute regarding the accident, cause of accident as also the liability of the second respondent to indemnify the rider-cum-insured owner of the offending vehicle, the sole question to be considered in this appeal is whether or not the appellant is entitled to get enhanced compensation. 3. The learned counsel for the appellant contended that the Tribunal went wrong in fixing the monthly income of the appellant notionally. It is submitted that in the claim petition, it was averred that the appellant was working as an electrician and was earning Rs.6,000/- per month. At the very same time, the evidence on record would reveal that besides the oral evidence of the appellant as PW1, there is absolute absence of any cogent evidence to establish his averments regarding occupation and monthly income. It is relevant to note that he admitted before the Tribunal that he was not a licenced **M.A.C.A.2451/2012** 3 electrician. In such circumstances, the Tribunal had declined to accept his averments that he was an electrician by profession and consequently, fixed his monthly income notionally. Taking into account the circumstances that constrained the Tribunal to fix his monthly income notionally, disregarding his averments in the claim petition as to his occupation and income, we do not find any reason to interfere with the action of the Tribunal in fixing the monthly income notionally. However, the question is whether fixation of the monthly income notionally at Rs.3,500/- requires interference. 4. The accident in which the appellant sustained injuries occurred on 4.9.2008. He was then aged 30 years. Taking into account the said facts and also the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** wherein the Apex Court fixed the monthly income of a coolie who met with an accident in the year 2004 as Rs.4,500/-, we are of the view that there is absolutely no reason to disbelieve the claim of the appellant that he **M.A.C.A.2451/2012** 4 was earning Rs.6,000/- per month. In other words, his monthly income for calculation purpose is fixed as Rs.6,000/-. Though the appellant claimed that the injuries sustained by him resulted in permanent disability and in support of his claim, he produced Ext.X1 disability certificate, the Tribunal had declined to accept the said disability certificate and to grant him compensation for disability. The reasons therefor, have been assigned in paragraph 9 of the impugned judgment. True that Ext.X1 was issued by the District Medical Board, Manjeri and as per the same, the appellant had incurred 3% permanent disability. At the same time, it is evident from Ext.X1 that at the time of examination, the implants were in situ. Taking into account all the circumstances, the difficulties experienced by the appellant at the time of examination can only be taken as the difficulties caused by the implantation and at any rate, when the implants were in situ and the disability was assessed only as 3%, we do not find any reason to interfere with the disinclination shown by the Tribunal to act upon Ext.X1. The Tribunal took the period for calculation of loss of **M.A.C.A.2451/2012** 5 earning as three months. The Tribunal has also awarded Rs.3,500/- as partial loss of earning for a period of two months. The learned counsel for the appellant submitted that the compensation awarded towards loss of earnings invites an upward modification. Ext.A2 is the wound certificate. It would reveal that the appellant sustained fracture of both bones of his right leg besides abrasions on forehead, right cheek and right forearm. Under two spells, he had been an inpatient for a period of 11 days. The implants were removed only on 12.5.2011. Taking into account the aforesaid aspects, we are of the view that it is only proper to fix a period of five months for the purpose of calculation of compensation for loss of income. Based on the re-fixation of monthly income as also the period of loss of earning, the amount payable under the said head will be Rs.30,000/-. The Tribunal has already granted Rs.14,000/- under the combined head of loss of earning and partial loss of earning. In such circumstances, after deducting the amount already awarded by the Tribunal, the appellant is entitled to get Rs.16,000/- additionally. Towards **M.A.C.A.2451/2012** 6 bystander expenses, Tribunal has awarded Rs.700/- at the rate of Rs.100/- per day for a period of seven days. Paragraph 7 of the impugned judgment itself would reveal that the Tribunal took note of the fact that the appellant had been an inpatient for a period of 11 days. Taking into account the year of the accident and the economic conditions then prevalent, we are of the view that bystander's expenses ought to have been granted at the rate of Rs.200/- per day. Hence, the appellant will be entitled for an amount of Rs. 2,200/(200x11) under the said head. After deducting the amount already awarded, the appellant will be entitled for an additional sum of Rs.1,500/- towards bystander's expenses. Taking into account the aforesaid aspects, the appellant is granted an amount of Rs.1,100/towards expenses for extra nourishment. Towards damage to clothing, an amount of Rs.250/- was awarded by the Tribunal. We are inclined to grant Rs.750/- additionally under that head. Towards loss of amenities, no amount was awarded by the Tribunal. We have already taken note of the fact that in the accident, the appellant sustained **M.A.C.A.2451/2012** 7 fracture of both bones of his right leg and the implants were removed only on 12.5.2011. In such circumstances, we are inclined to grant an amount of Rs.5,000/- towards loss of amenities. In the light of the assessment/enhancement made by us, the appellant will be entitled to get an additional compensation of Rs.24,350/-. It is granted. The said amount will carry interest at the rate of 8% per annum from the date of the petition till realisation. The second respondent is directed to deposit the said amount before the Tribunal within a period of one month from the date of receipt of a copy of this judgment. Needless to say that upon deposit, the amount shall be disbursed to the appellant, in accordance with law. Appeal is disposed of. No order as to costs. ## **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** ## **Sd/-** ## **ANIL K. NARENDRAN (JUDGE)** ## **spc/** **M.A.C.A.2451/2012** 8 **M.A.C.A.2451/2012** 9 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.2451/2012** 10