MANU v NIBU M. VARGHESE & ORS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 MACA NO. 59 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 30.04.2012 IN OPMV NO.1760 OF 2008 OF SPECIAL C SPE/CBI-I&3 ADDITIONAL DISTRICT COURT / I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM APPELLANT/PETITIONER: ``` ``` MANU AGED 25 YEARS LATE VELAYUDHAN, KUNNATHUNADU TALUK, ARACKAPPADY VILLAGE, NOW RESIDING AT THELAKKATTU MOOLEVETTIL HOUSE, PERUMBAVOOR, ERNAKULAM DISTRICT ``` ``` BY ADVS. SRI.ABRAHAM K.JOHN SMT.C.G.ARUNDHATHI ``` ## **`RESPONDENTS:`** - **`1 NIBU.M.VARGHESE S/O VARGHESE, MYLATTUMOLEL HOUSE, VALAMPOOR, KOLAMKUDY, PATTIMATTOM, ERNAKULAM DISTRICT 683 542(DRIVER)`** - **`2 KUNJU MOHAMMED S/O HASSAN, PARAKKUNNATHU HOUSE, CHELAKKULAM, VENGOLA P.O, PERUMBAVOOR, ERNAKULAM DISTRICT, 683554 (OWNER)`** - **`3 NATIONAL INSURANCE COMPANY LTD CHITTOOR ROAD, SOUTH JUNCTION, ERNAKULAM 682016 (INSURER)`** - **`BY ADV SRI.E.M.JOSEPH`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.59 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** ``` The appellant was the petitioner in OP(MV) No.1760/2008 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 16.03.2008. ``` ``` 2.According to the appellant, the accident occurred when he was travelling as a passenger in a bus driven by the 1[st] respondent. During such journey, when it stopped at the bus stop, while he was getting down through the front door, the bus was taken forward in a rash and negligent manner by the 1[st] respondent. Due to its impact, the appellant fell down and the back wheel of the bus ran over his right lower limb thereby causing serious injuries. The appellant was an Office Assistant in a private establishment with a monthly income of Rs.5,000/-. He was 20 years old at the time of the accident. It was also contended that he sustained severe injuries ``` ``` MACA No.59 OF 2013 ``` ``` 3 ``` ``` which resulted in physical disablity. The claim petition is submitted in such circumstances. ``` ``` 3.The 3[rd] respondent, the insurer of the bus filed a written statement denying the negligence on the part of the 1[st] respondent. However, they admitted the coverage of the policy for the bus. The quantum of compensation claimed was also objected to by them. ``` ``` 4.The appellant produced and marked Ext.A1 to A12 to substantiate his contentions. No evidence was adduced by the respondent. After the trial, the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent in driving the bus and since it was insured with the 3[rd] respondent, they were held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,61,936/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. ``` ``` MACA No.59 OF 2013 ``` ``` 4 ``` ``` 5.Heard Sri.Abraham K. John, learned counsel appearing for the appellant and Sri.E.M.Joseph, learned counsel appearing for the 3rd respondent. ``` ``` 6.The only question that arises for consideration is regarding the inadequacy of compensation. Learned counsel for the appellant pointed out that, the Tribunal awarded meagre amounts under various heads, particularly under the head of disability. It is seen from the records that, for the purpose of assessing the compensation for disability, the Tribunal took the monthly income of the appellant as Rs.4,000/- as against the claim of Rs.5,000/-. Considering the fact that this is an accident that occurred in the year 2008, the monthly income of Rs.4,000/- appears to be very low. It is to be noted that, inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd[(2011) 13 SCC 236] the Hon'ble Supreme Court was pleased to take the monthly income of an ordinary worker as Rs.4,500/- for the year 2004. In such circumstances, the amount of ``` ``` MACA No.59 OF 2013 ``` ``` 5 ``` ``` Rs.5,000/- claimed by the appellant cannot be treated as unreasonable, as the accident in this case was in the year 2008. Therefore, the said amount is accepted as the monthly income. ``` ``` 7.The Tribunal has already accepted the percentage of disability as 7% by placing reliance upon Ext.A12 Medical Report. Therefore, while reassessing the compensation with the revised monthly income, the amount would come to Rs.75,600/- (5000x12x18x7/100). The amount already awarded by the Tribunal is Rs.53,760/- and thus the additional amount would come to Rs.21,840/-. ``` ``` 8.Consequent to the revision of monthly income, the appellant would be entitled to some additional amount under the head of loss of earnings. The Tribunal awarded compensation under this head, for a period of four months. The said period appears to be reasonable and therefore a further sum of Rs.4,000/- is awarded under the said head. The next head which requires consideration is pain and ``` ``` MACA No.59 OF 2013 ``` ``` 6 ``` ``` suffering. The amount awarded by the Tribunal under the same is Rs.30,000/-. The injuries suffered by the appellant are mentioned in Ext.A3 which are as follows: ``` `1. Crush injury of right thigh;` `2. Crush injury of right iliac region with loss` - `of skin and subcutaneous tissue;` `3. Deep lacerated wound over right iliac fossa;` `4. Comminuted fracture shaft right femur mid 1/3rd;` `5. Type I open comminuted fracture right tibia;` `6. Fracture right ilium;` `7. Pain bleeding wounds over the right thigh, right leg.` ``` 9.The appellant had undergone inpatient treatment for a period of 31 days. The nature of injuries are very serious, considering that it includes crush injuries as well. Therefore, I am of the view that the amount awarded by the Tribunal towards pain and suffering is on the lower side and ``` ``` MACA No.59 OF 2013 ``` ``` 7 ``` ``` accordingly a further sum of Rs.15,000/- is awarded under the said head. The amount awarded by the Tribunal towards loss of amenities is Rs.18,000/- which appears to be on the lower side. Considering the nature of the injuries, the period of treatment which he undergone and the disability arising therefrom, I deem it appropriate to grant some additional amount under this head. This is particularly because, the said injuries and the disabilities were suffered by him at the young age of 20 years. Therefore, a further sum of Rs.15,000/- is awarded under the said head. ``` ``` 10.The learned counsel for the appellant further submitted that, he requires an enhancement of compensation for disfiguration. It is seen that the amount already awarded by the Tribunal under the said head is Rs.25,000/-. The photographs of the appellant were also made available for perusal which are already on record before the Tribunal as Ext.A10. But considering the nature of the injuries and also the ``` ``` MACA No.59 OF 2013 ``` ``` 8 ``` ``` fact that, the injuries were sustained on the right thigh, I find that the amount awarded by the Tribunal under this head is reasonable and no interference is warranted. ``` ``` In the result, the total additional compensation is determined as Rs.55,840/- (Rupees Fifty Five Thousand Eight Hundred and forty only) and the 3[rd] respondent is directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation with proportionate cost. ``` Sd/- ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` sms ```