Manoj v. George Mathai & The Oriental Insurance Co. Ltd.

WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939 AGAINST THE AWARD IN OPMV 12/2011 of MACT MUVATTUPUZHA DATED 30-04-2014 APPELLANT(S)/PETITIONER MANOJ, S/O.THANKAPPAN, VELLAPPILLIL HOUSE, MAVUDY, PALLARIMANGALAM P.O., PATHANICAD VILLAGE. BY ADVS.SRI.T.K.KOSHY SRI.ABE RAJAN RESPONDENT(S)/RESPONDENTS 1 & 2: 1. GEORGE MATHAI, PAZHAYAMKOTTIL VEEDU, PIDAVOOR KARA, PALLARIMANGALAM, VARAPETTY VILLAGE, PIN-686691. 2. THE ORIENTAL INSURANCE CO.LTD., KOTHAMANGALAM, PIN-686691. R2 BY STANDING COUNSEL SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.Harilal, J.** ==================================== M.A.C.A.No.2047/2014 ==================================== Dated this the 21[st] day of February, 2018. ## **JUDGMENT** - 1.The appellant is the petitioner in O.P. (MV)No.12/2011 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha and this appeal is filed challenging the inadequacy of the quantum of compensation granted under different heads of claim. It was found that the accident has occurred due to the rash and negligent driving of the offending autorickshaw owned and driven by the first respondent and insured with the second respondent insurance company. Thereafter, the Tribunal passed the impugned award granting `3,96,800/- as compensation to the appellant, though he had claimed `4,50,000/-. Maca2047/2014 ## -:2:- 2.In this appeal it is contended that the monthly notional income and the compensation for loss of studies taken by the Tribunal is very low. Further, it is contended that the court below went wrong by taking 16 as the multiplier for the appellant, who was aged 19 years at the time of accident. The Tribunal ought to have taken 18 instead of 16, in view of the decision of the Supreme Court in _**Sarala Varma v. Delhi Transport Corporation**_ **[2009 (6) SCC 121].** The quantum of compensation determined under the head, pain and sufferings and loss of amenities are also inadequate and disproportionate with the grievous nature of the injuries and consequential sufferings and disablement arose therefrom, the learned counsel contends. - 3.Per contra, it is contended that the quantum of Maca2047/2014 -:3:- - compensation determined under the aforesaid heads of claim is just and fair and there is no reason to interfere with the findings of the Tribunal. But, it is fairly admitted that the proper multiplier is 18, as submitted by the learned counsel for the appellant. - 4.In view of the arguments at the bar, the point to be considered is, whether the Tribunal is justified in determining the compensation for loss of earnings, compensation for loss of study, permanent disability, pain and sufferings and loss of amenities. - 5.Going by the impugned award, it is seen that the appellant was aged 19 years only at the time of accident and he was a student at that time. Exts.A12 to 14 wound-cum-discharge certificates issued from Medical Trust Maca2047/2014 -:4:- Hospital, Ernakulam show the grievous nature of the injuries, as shown below: - Compartmental syndrome right forearm, - right elbow fracture dislocation, right comminuted fracture BB forearm - (open), right undisplaced fracture distal 1/3 radius, right cuneiform fracture, right brachial plexus palsy, right AC joint disruption type 1. - 6.He had undergone treatment for altogether 62 days as an inpatient at Medical Trust Hospital at Cochin at two stretches. He was not in a position to attend his class at least for a period of seven months, as rightly observed by the Tribunal. His parents might have spent money to arrange special tuition to cover up the lost classes and it would have increased Maca2047/2014 ## -:5:- - his mental pressure and strain also. Hence, the compensation for loss of study per month would stand enhanced and modified to `4,500/-. Consequently, the quantum of compensation for loss of education would stand enhanced to `31,500/-. The appellant is entitled to get an additional compensation of `10,500/- under the head, compensation for loss of education. - 7.In the impugned award, as pointed out by the learned counsel for the appellant as well as the learned counsel for the respondents, 16 is taken as the multiplier instead of 18. It is not disputed that in _**Sarala Varma v. Delhi Transport Corporation**_ **[2009 (6) SCC 121]** , the Supreme Court held that for the persons aged 15 to 25, the correct multiplier is 18. - 8.This court finds that the quantum of notional Maca2047/2014 -:6:- income fixed by the Tribunal is inadequate, in view of the decision of the Supreme Court in _**Ramachandrappra v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.**_ **[2011 (13) SCC 236].** In the said decision, the Supreme Court held that in the absence of sufficient evidence to prove the exact income of the claimant, `3,500/- to `4,500/- can be fixed as the notional income per month in a claim for compensation under the Motor Vehicles Act. In the said decision, the accident was one occurred in the year 2004. In the above view, the quantum of amount fixed as the monthly income of the appellant is inadequate, considering the fact that the accident has occurred in the year 2010. Consequently, the monthly notional income would stand enhanced to Maca2047/2014 ## -:7:- `4,500/- per month. - 9.Consequently, the compensation for permanent disability would stand enhanced to `1,06,920/(4,500 x 12 x 18 x 11/100). Thus, the appellant is entitled to get an additional compensation of `33,000/- under the said head. 10. I have meticulously gone through the three discharge summaries referred to above and found the fact that the injuries are grievous in nature and he had undergone treatment as an inpatient for 62 days in the hospital. The appellant was aged 19 years only at the time of the accident. So, the compensation granted for pain and sufferings is inadequate and the same would stand enhanced and modified to `50,000/-. Thus, he is entitled to get an additional compensation of `10,000/- under the said head. Maca2047/2014 -:8:- ## 11. On a close reading of Ext.C2 disability certificate, it shows that he had sustained the following injuries: _“Right elbow fracture dislocation, right forearm comminuted fracture both bone, fracture distal 3[rd] , right radius right comminuted fracture foot, right brachial plexus injury gross scarring right forearm, elbow restriction of terminal 30[o] supination, terminal 15[o] flexing extension 10[o] right elbow, x-ray right forearm union of both bone shaft with 5 lateral angulation, 5[o] dorsolateral angulation @ distal radius grade IV power right upper limb, permanent disability 11%.”_ ## 12. In view of the aforesaid permanent disability, this court is of the view that the quantum of compensation granted under the head, loss of amenities, also is inadequate and the same would stand enhanced to `60,000/-. Thus, the appellant is entitled to an total Maca2047/2014 ## -:9:- additional compensation of `30,000/- under the said head. The appellant is entitled to get a total compensation of `83,500/- [10,500 + 33,000 + 10,000 + 30,000]. The total amount payable to the appellant is `4,80,300/[3,96,800 + 83,500]. All other findings of the Tribunal will stand undisturbed and operative. It is needless to say that the said total amount would carry interest as stipulated by the Tribunal. 13. The appeal is allowed to the above extent. Sd/- **K.Harilal, Judge** sl.//True c