Menish Vas v United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** ## **MACA NO. 1023 OF 2018** **AGAINST THE AWARD IN OPMV 272/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER:** MENISH VAS, AGED 31 YEARS, S/O. MARTIN VAS, SNEHA VILLA, KUNNAMANGALAMKUNNU, MEPPADI POST, KOTTAPPADY VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV SMT.CELINE JOSEPH ## **RESPONDENT/RESPONDENT NO.3:** THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD BRANCH OFFICE, KALPETTA, PINANGODE ROAD JUNCTION, MAIN ROAD, KALPETTA-673121. BY ADV SMT.P.A.REZIYA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.1023/2018 2 ## **C.JAYACHANDRAN, J** **----------------------------M.A.C.A.No.1023 of 2018 -------------------------------------Dated this the 4[th] day of November, 2022** ## **J U D G M E N T** 1. Appellant is the injured in an accident which took place on 12.10.2015, who was aged 32 then. He was driving a motor cycle, which rammed against a car, thus sustaining the injuries. 2. Heard Smt.Celine Joseph, learned counsel for the appellant and Smt.P.A.Reziya, learned counsel for the respondent/insurance company. Perused the records. 3. Learned counsel for the appellant first submitted that the petitioner/appellant was working as a Safety Officer having a monthly income on Rs.22,000/-, as against which, the Tribunal has reckoned only Rs.5,000/-. However, learned counsel would fairly 3 ## M.A.C.A.1023/2018 submit that, no proof of income was adduced in support of the above claim. Nonetheless, going by the index available in **Ramachandrappa** v. **Manager,** **Royal Sundaram Alliance Insurance Company Ltd.** [2011 KHC 4675], the notional income to be reckoned for the year 2015 is Rs.10,000/. In the circumstance, this Court is inclined to enhance the monthly income to Rs.10,000/-. 4. The next aspect pointed out by the learned counsel is with respect to the number of days of hospitalization as an inpatient. It was pointed out on the strength of Ext.A5 discharge summary that the petitioner/appellant was hospitalized from 13.10.2015 to 30.11.2015, thus for a period of 48 days. However, the Tribunal, probably by mistake, had reckoned only 18 days. If 48 days are reckoned, the bystander expenses and extra nourishment are to undergo corresponding increase. This submission of the learned counsel is also liable to be reckoned. M.A.C.A.1023/2018 4 5. The next point canvassed by the appellant is with respect to the compensation under the head 'pain and suffering', where the Tribunal reckoned only Rs.10,000/-. It was pointed out that the petitioner/appellant had undergone as many as 4 surgical corrections. He had suffered several fractures, besides head injury. Learned counsel invited the attention of this Court to the injuries specifically noted in Ext.A5 discharge summary. The injuries, several in number, are narrated in pages 3 and 4 of Ext.A5 discharge summary. Having perused the injuries sustained, this Court is of the definite opinion that the amount of Rs.10,000/- granted towards 'pain and suffering' by the Tribunal is on the lower side. The same is liable to be enhanced to Rs.40,000/-. The same is the situation with respect to loss on account of amenities, where the Tribunal awarded Rs.15,000/-. Going by Ext.C1 certificate, permanent disability of 7% has been assessed. Having M.A.C.A.1023/2018 5 regard to the nature of the injuries sustained and the extent of permanent disability, as also, the fact that the petitioner/appellant had to undergo as many as 4 surgeries, this Court is of the view that, loss on account of amenities can be enhanced to Rs.30,000/-. The period for which loss of earnings can be reckoned is also insufficient. The Tribunal reckoned the period as 3 months, which is liable to be enhanced to 5 months atleast is the submission of the learned counsel. The same is also liable to be accepted and it is so done. 6. As against the above claim of the learned counsel for the appellant, learned counsel for the respondent submitted that, in a case where disability to the extent of 7% only has been reckoned vide Ext.C1, the Tribunal chose to grant future prospects, a course impermissible in law. The said submission of the learned counsel is liable to be accepted. Having regard to the fact that the petitioner/appellant had M.A.C.A.1023/2018 6 suffered disability only to the extent of 7%, no future prospects can be granted. 7. In the circumstances, the M.A.C.A is allowed. The compensation amount payable to the petitioner/appellant is as shown in the tabular statement herein below. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| ||Income/notional Income|5,000|10,000| |1|Loss of earning|15,000|50,000 [10,000 x 5]| |2|Transport to hospital|2,000|2,000| |3|Damage to Clothing|1,000|1,000| |4|Extra Nourishment|4,500|12,000 [250 x 48]| |5|Bystanders Expenses|4,500|12,000 [250 x 48]| |6|Future Medical Expenses|Nil|Nil| |7|Pain and Suffering|10,000|40,000| |8|Loss of Amenities|15,000|30,000| |9|Compensation for<br>Partial Permanent<br>Disability|Nil|Nil| |10|Hospital Expenses &<br>Bills|64,230|64,230| M.A.C.A.1023/2018 7 |11|Compensation for the<br>loss of earning power|94,080|1,34,400<br>[10,000x12x16x7/100]| |---|---|---|---| ||Total|2,10,310|3,45,630| |Amount enhanced = Rs.3,45,630/ – Rs.2,10,310/ =**Rs.1,35,320/**|||| 8. The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, M.A.C.A.1023/2018 8 as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. **Sd/-** **C.JAYACHANDRAN** **JUDGE** Sbna/