M.S. Vipin Dev v. Yusuf S/O Mammunni, C.V. Sajeeer S/O C.V. Koyakutty, and Reliance General Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 19[TH] DAY OF MAY 2023 / 29TH VAISAKHA, 1945 MACA NO. 1412 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 1510/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE DATED 28.09.2013 APPELLANT/PETITIONER: ``` ``` M.S.VIPIN DEV S/O.V.SUDHAKARAN, "REVATHI", BALAMENON NAGAR ROAD, THRIKKAKARA P.O., KOCHI-682 021. BY ADVS.T.K.KOSHY ABE RAJAN ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 3:`** ``` 1YUSUF S/O.MAMMUNNI, NELLIPARAMBATHU PURAY HOUSE, PULLIKAL P.O., PARAVOOR (VIA), MALAPPURAM, PIN 673 637. ``` ``` 2C.V.SAJEER S/O.C.V.KOYAKUTTY, KIZHEDATH PALLIYALI HOUSE, PULIKAL P.O., MALAPPURAM, PIN 673 637. 3M/s.RELIANCE GENERAL INSURANCE COMPANY LIMITED MANGALAM TOWERS, OPP: TOWN BUS STAND, T.B.ROAD, PALAKKAD, PIN 678 014. BY ADVS.GEORGE CHERIAN (SR.) K.S.SANTHI LATHA SUSAN CHERIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 28.03.2023, THE COURT 19.05.2023 DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1412 of 2014 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1412 of 2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of May, 2023 ## **JUDGMENT** Appeal on hand is filed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) in O.P.(M.V) No.1510/2010 on 28/09/2013. The petitioner before the Tribunal is the appellant in the appeal on hand. 2. The parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition on hand. 3. Compensation was claimed by the petitioner for the injuries sustained by him in a motor accident occurred at about 3 p.m on 06/02/2010. Petitioner was travelling as pillion rider in a Motorcycle from Calicut towards the University side and was hit by Tipper Lorry bearing Registration No.KL-10AC-622 and thereby he sustained serious injuries. He was admitted at Medical College Hospital, Kozhikode and was treated as inpatient for several days. M.A.C.A.No.1412 of 2014 -:3:- Alleging that the motor accident was occurred due to rash and negligent driving of the Tipper Lorry by it’s driver, the Original Petition seeking compensation was moved. The registered owner, the driver and the insurer of the Tipper Lorry were arrayed a respondents 1 to 3 in the Original Petition on hand. ₹6,00,000/was claimed as compensation for the injuries sustained by him in the motor accident. 4. Though summons was served on respondents 1 and 2, they did not turn up to contest the Original Petition and were declared _ex parte_ . 5. 3[rd] respondent filed written statement admitting that the offending vehicle was validly insured with them as on date of accident. It was contended that the motor accident was occurred not due to negligence of the 2[nd] respondent but due to sole negligence of the petitioner, that the sum claimed as compensation is exorbitant and that the claims of the petitioner on his age, occupation and monthly income are against truth. 6. Exts.A1 to A15 and Ext.C1 were marked on the side of the petitioner. Neither any oral nor documentary evidence was adduced by the respondents. M.A.C.A.No.1412 of 2014 -:4:- 7. On the basis of Ext.A1, the FIR registered with reference to the motor accident and the final report laid after concluding the investigation in the FIR, the Tribunal arrived at a finding that the motor accident in question was occurred due to the rash and negligent driving of the Tipper Lorry bearing Registration No.KL-10AC-622 by the 2[nd] respondent. 8. According to the petitioner he had sustained Type III Open Communited fracture of right patella with fracture of right lateral condyle of right femur, fracture of tibial plateau and lacerated wound over the right knee. Petitioner was treated as inpatient at Medical College Hospital, Kozhikode from 06.02.2010 till 09.02.2010 and thereafater at General Hospital, Ernakulam from 10.02.2010 till 18.02.2010. The pleading of the petitioner found basis in the wound certificate marked in evidence as Ext.A2 and the discharge summaries marked in evidence as Exts.A6, A8, A11 and A12 issued from Medical College Hospital, Kozhikode. 9. C.T. Scan of right knee was taken on 05.01.2011 at General Hospital, Ernakulam and the report obtained is marked in evidence as Ext.A7. Medical bills marked in evidence would also establish the expenditure on treatment, but the uncontested bills M.A.C.A.No.1412 of 2014 -:5:- alone were taken into consideration by the Tribunal to award ₹15,100/- as compensation. 10. Petitioner was examined by the Medical Board constituted at Medical College Hospital, Kozhikode. A certificate issued by the Medical Board wherein his permanent disability due to the injuries sustained in the motor accident in question was certified as 32% is produced by the him and marked in evidence as Ext.C1. Reasons were also stated in Ext.C1, for assessment of disability as above. 11. As per the pleadings of the petitioner in the Original Petition, he was a B-Tech student at Model Engineering College, Thrikkakkara at the relevant time of the motor accident. Document marked in evidence as Ext.A14 would also establish that factum. The Tribunal had fixed the annual income notionally as ₹30,000/- based on the fixation of ₹15,000/- as the annual income in the case of non-earning members as per Second Schedule of 1994. Taking the age of the injured at the relevant time as 20 years and 18 as the multiplier, the tribunal arrived at ₹1,72,800/- (₹30,000/- x18 x 32/100) as compensation for loss of earning power. M.A.C.A.No.1412 of 2014 -:6:- 12. The learned counsel for the petitioner raised a contention mainly on inadequancy of annual income based on which compensation has been arrived at. According to the learned counsel the injured being a 3[rd] year B-Tech student, considering the likelihood of him to obtain an employment shortly, ₹5,000/- ought to have been taken as the monthly income for calculation purpose. According to him, considering the nature of treatment and its duration, the Tribunal ought to have granted compensation for loss of earning at least for six months. He seeks for modification of the compensation under other heads also based on the relevant factums stand established by the documentary evidence on record. According to him, the Tribunal ought to have awarded reasonable compensation towards pain and suffering as well as loss of amenities and enjoyments in life. The learned counsel for the petitioner has also relied on **National Insurance Co. Ltd. v. Fathimath Zuhara** [2016 (3) KLT 459], **Ramakrishnapillai K and Others v. New India Assurance Co. Ltd.** [2015 KHC 3703], **Meena Pawaia and others v. Ashraf Ali and others** [2021 (6) KHC 596], **Mekala v. Malathi M. and Another** [2014 KHC 4325] and M.A.C.A.No.1412 of 2014 -:7:- ## **Arvind Kumar Mishra v. New India Assurance Co. Ltd. And** **Another** [2010 KHC 4729]. 13. The argument advanced by the learned counsel to grant compensation for loss of earning in the case on hand is discarded for the reason that the petitioner was only a student and therefore a non-earning member. 14. The decision relied on by the learned counsel and mentioned supra are irrelevant for consideration in the case on hand for the reason that those are cases where the victim is either dead or suffered 70% permanent disability and evidence has also been adduced by them to establish that their capacity to work has been reduced due to the injuries sustained in the motor accident. 15. In the case on hand, the petitioner was examined by a Medical Board and issued Ext.C1 assessing his permanent disability as 32%. Petitioner did not mount the box and adduced evidence on his incapacity to do the work, which would probably be obtained based on his educational qualification. The assessment of disability was based on restriction of rotation of movements of knee. True that those are difficulties which would M.A.C.A.No.1412 of 2014 -:8:- stand in the way of the petitioner to lead a normal life he was enjoying prior to meeting with the motor accident. But evidence is not forthcoming to indicate that the petitioner had been made unable to do any work or to do the work which he would procure in future based on the educational qualification. Therefore, this Court is declined to follow the decisions relied on by the petitioner. 16. The injured being a 3[rd] Semester student of B-Tech, and the motor accident being occurred in the year 2010, ₹48,000/- is fixed as the annual income. 18 adopted by the Tribunal as the multiplier being correct is maintained. Thus, ₹2,76,480/- (₹48,000/- x 18 x 32/100) is arrived at as compensation for disability. ₹1,72,800/- stands awarded by the Tribunal when adjusted against, the petitioner will get ₹1,03,680/- as additional compensation. 17. Compensation stands awarded by the Tribunal under various other heads being inadequate this Court enhances those in the following manner: As compensation towards transportation expenses, damages to clothing, extra nourishment, bystander expenses, pain and M.A.C.A.No.1412 of 2014 -:9:- suffering and loss of amenities and enjoyments in life, ₹4,000/-, ₹500/-, ₹3,000/-, ₹2,800/-, ₹30,000/- and ₹15,000/- more are awarded. 18. In the above manner of re-assessment, the petitioner will get ₹1,58,980/- rounded off to ₹1,59,000/- Rupees One lakh Fifty nine thousand only) (₹1,03,680 + ₹4,000/- + ₹500/- + ₹3,000/- + ₹2,800/- + ₹30,000/- + ₹15,000/-) in total as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 129 days of delay occurred in filing the appeal on hand. The 3[rd] respondent shall pay the sum awarded by this Court with interest and the sum stands originally awarded with interest (if not already paid) within a period of two months form the date on which a certified copy of this judgment is received, in accordance with the directions in Circular No.03/2019 issued by this Court on 06.09.2019. M.A.C.A. stands allowed accordingly. Sd/- **MARY JOSEPH, JUDGE.** NAB