MANU MOHAN v. THE DIVISIONAL MANAGER, THE UNITED INDIA INSURANCE COMPANY LIMITED

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939 MACA.No. 2308 of 2015 () ------------------------AGAINST THE AWARD IN OPMV 292/2013 of M.A.C.T., KOTTAYAM DATED 13-03-2015 APPELLANT(S):PETITIONER -------------------------------- MANU MOHAN,AGED 19 YEARS S/O.MOHAN.T.K., PAVEETICKAL @ PAVEETTI HOUSE, KAVUMBHAGOM CHERUVALLY, KANJIRAPPALLY, KOTTAYAM DISTRICT. BY ADVS.SRI.P.M.JOSHI SMT.SIJI K.PAUL RESPONDENT(S)/RESPONDENT NO.2: ---------------------------------------- THE DIVISIONAL MANAGER THE UNITED INDIA INSURANCE COMPANY LIMITED, KOTTAYAM-1, KOTTAYAM. BY ADV. SMT.RAJI T.BHASKAR BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.2308 OF 2015** **==========================** Dated this the 4[th] day of July, 2017 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 13.3.2015 in O.P.(MV).No.292 of 2013 passed by the Motor Accidents Claims Tribunal, Kottayam. The injured-petitioner is the appellant. The appellant got injured in a motor vehicle accident that occurred at about 6.45 p.m on 4.11.2002. While he was walking through Ammancherry-Arpookara road, the car bearing Reg.No.KL 5/AD-3835, driven by the first respondent, knocked him down. On sustaining injuries, he was taken to Medical College Hospital, Kottayam. He remained there as an in patient for a period of 42 days under different spells. The injuries sustained by the appellant resulted in permanent disability. It is in such circumstances that the claim petition was filed under section 166 of the Motor Vehicles Act seeking **M.A.C.A.2308/2015** 2 a total compensation of Rs.4,00,000/-. 2. Before the Tribunal, Exts. A1 to A6 were marked on the side of the appellant. Ext.X1 is a court document which is the disability certificate carrying the certification of the extent of permanent disability of the appellant as 6%. No oral evidence was adduced by both sides. The Tribunal, as per the impugned award, granted a total compensation of Rs.1,58,500/- with interest at the rate of 8.5% per annum from the date of the petition till realisation. It is seeking enhancement of the quantum of compensation that the above appeal has been preferred. 3. We have heard the learned counsel for the appellant and also the learned counsel for the respondent. Evidently, there is no dispute regarding the liability of the insurance company to indemnify the insured owner of the offending vehicle. The main grievance of the appellant is that the Tribunal had not properly considered the averments regarding his occupation and income, made in the claim petition. In the claim petition, it was averred that the appellant was **M.A.C.A.2308/2015** 3 working as a manual worker and was earning Rs.10,000/- per month. True that in the case of a manual worker it will not be possible to adduce cogent evidence to establish his income. But at the same time, it is to be noted that, the appellant had not even mounted the box to give evidence. For all these reasons, we do not find any reason to hold that the Tribunal has gone wrong in fixing the monthly income of the appellant notionally disregarding such averments. The accident had occurred on 4.11.2012 and the appellant was then aged 19 years. In the absence of evidence regarding the monthly income of the appellant, we are of the view that the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** can act as guidance in the matter of its proper fixation. In that case, in respect of an accident which occurred in 2004, the Hon'ble Apex Court fixed the monthly income of a coolie notionally as Rs.4,500/-. The accident in the instant case occurred much thereafter. In such circumstances, taking into account all such aspects, we are inclined to fix the monthly **M.A.C.A.2308/2015** 4 income of the appellant as Rs.7,000/- for calculation purpose. It is submitted by the learned counsel on both sides that the multiplier was correctly fixed with reference to the age of the appellant. The entire percentage of disability assessed under Ext.X1 was also taken into account for calculation of compensation for loss of earning capacity. In such circumstances, a re-assessment is required only by substituting the re-fixed monthly income. On such re-assessment, an amount of Rs.90,720/- (7000x12x18x6/100) is payable under the head loss of earning capacity. The Tribunal has already granted an amount of Rs.64,800/- under that head. Hence, the appellant is entitled to get an additional amount of Rs.25,920/- after subtracting the amount already awarded under that head. It is granted. The Tribunal fixed the period for loss of earning as five months. The appellant had sustained open fracture to both bones of right leg and interlocking and nailing were done as part of the treatment. Taking into account all those aspects, we are of the view that the Tribunal has correctly fixed the period for the aforesaid purpose as five months. Hence, the appellant is entitled **M.A.C.A.2308/2015** 5 to get only proportionate enhancement based on the re-fixed monthly income. In such circumstances, the appellant is entitled to get Rs.10,000/- (7000x5-25000) additionally towards loss of earning. Towards extra nourishment, the Tribunal has granted a sum of Rs.3,000/-. In fact, that was the amount claimed by the appellant under that head. Taking note of the year of the accident and the period of hospitalisation, we are of the view that the appellant is entitled to get an amount of Rs.4,200/- @ Rs.100/- per day during the period of hospitalisation. After deducting the amount already granted by the Tribunal, the appellant is entitled to get an additional compensation of Rs.1,200/- under that head. We do not find any reason to interfere with the compensation granted under other heads. In such circumstances, the appellant is entitled to get an additional compensation of Rs.37,120/-. 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 respondent insurance company is directed to deposit the said amount together with interest thereon within one month from the date of **M.A.C.A.2308/2015** 6 receipt of a copy of this judgment. The appeal is allowed as above. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.2308/2015** 7 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.2308/2015** 8