Nandakumar v. Biju T.J. & ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 8[TH] DAY OF JANUARY 2024 / 18TH POUSHA, 1945 ``` ``` MACA NO. 2114 OF 2013 ``` ``` AGAINST THE AWARD DATED 14.02.2013 IN OP(MV) 1306/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITONER:`** ``` NANDAKUMAR S/O.HARIHARAN NAIR, KUMARAPILLY HOUSE, ANNANDU DESOM & P.O., KALLUR-VADAKKUM MURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.JOSEPH GOPURAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1BIJU T.J. S/O. JOSE, THELEKKATTU HOUSE, KADUKUTTY P.O., THRISSUR DISTRICT-680315. 2BENNY S/O.JOSE, THELEKKATTU HOUSE, KADUKUTTY P.O., THRISSUR DISTRICT-680315. 3ORIENTAL INSURANCE COMPANY LTD. SOUTH JUNCTION, CHALAKKUDY-680307. BY ADVS. SMT.REKHA NAIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2114 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.1306/2007 on the files of the Motor Accident Claims Tribunal, Irinjalakkuda. The said claim petition was submitted by the petitioner herein seeking compensation for the injuries sustained to him in a motor accident that occurred on 05.07.2006. 2. According to the appellant, the accident occurred when the bicycle ridden by him was hit by a motorcycle bearing Registration No.KL 8/U 2535 ridden by the 2nd respondent. The said motorcycle was owned by the 1st respondent, and was insured with the 3rd respondent. He was working as a carpenter at the relevant time with a monthly income of Rs.4,000/-. He was aged 37 years, and according to him, he sustained physical disablement due to the injuries sustained in the accident. The claim petition was submitted in such circumstances. 3. Even though the 3rd respondent appeared, no written statement was filed. The evidence in this case consists of oral testimonies of PWs 1 and 2 and Exts.A1 to A10 from the side of the appellant. The Medical Report was marked as Ext.X1. After ``` MACA NO. 2114 OF 2013 ``` ``` 3 ``` the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2nd respondent in riding the motorcycle and being the insurer, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,85,000/- which was directed to be deposited by the 3rd respondent with interest @ 7.5% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation. 4. Heard Sri.Joseph Gopuran, learned counsel appearing for the appellant and Sri.Rekha Nair, learned counsel appearing for the 3[rd] respondent Insurance Company. 5. The only dispute in this case relates to the quantum of compensation. According to the learned counsel for the appellant, the monthly income took by the Tribunal for assessing the compensation for disability was grossly inadequate. The learned counsel for the appellant pointed out by placing reliance upon the deposition of PW2 that he was a carpenter by profession and was earning Rs.200/- per day. The said claim is not seriously disputed ``` MACA NO. 2114 OF 2013 ``` ``` 4 ``` as no written statement has been filed in this case by any of the respondents. Therefore, the assertion of the appellant as to the avocation and the monthly income can be accepted. This is particularly because, with respect to an accident that occurred in the year 2006, daily wages of Rs.200/- for a carpenter appear to be reasonable. Moreover, it is also to be noted that when the method of computation evolved from the principles laid down by the honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, income as claimed by the appellant in his deposition appears to be reasonable as well. When the daily income as claimed by the appellant is accepted as Rs.2,00/-, the monthly income in this case can be fixed as Rs.5,000/- (200 x 25). The learned counsel for the Insurance Company opposes the said contention by pointing out that, in the claim petition only Rs.4,000/- was claimed as monthly income. However, I am of the view that merely because a lesser amount was shown in the claim petition, that ``` MACA NO. 2114 OF 2013 ``` ``` 5 ``` would not preclude this Court from taking a higher monthly income if the facts and circumstances of the case justify taking such a higher income. This is particularly because the appellant, being a carpenter by profession, belongs to the category of persons whose income would not be static. It depends upon the work he gets every month, and it varies from month to month. Therefore, slight variations in the amount claimed and the actual income are likely to occur. Therefore, in respect of such persons, too much emphasis need not be given to the amount claimed. The income has to be fixed, taking note of the ground realities that existed at the time of the accident and the probable income the said person might have received from his avocation under normal circumstances at the time of the accident. In this case, the amount of Rs.5,000/- is a reasonable amount when taking into account a standard that prevailed in the year 2006. Moreover, in **Minu Rout v. Satya Pradyumna Mohapatra** [(2013) 10 SCC 695] also, the honourable Supreme Court was pleased to take the monthly income of the victim at higher rates than claimed in the claim petition. The monthly income is thus fixed as Rs.5,000/-. ``` MACA NO. 2114 OF 2013 ``` ``` 6 ``` 6. While reassessing the compensation with the revised monthly income and by keeping the other parameters adopted by the Tribunal intact, the amount of compensation for disability due to reduction in earning capacity would come to Rs.90,000/- (5,000 x 12 x 15 x 10/100). The amount already awarded by the Tribunal is Rs.54,000/- and thus the additional amount under this head would come to Rs.36,000/-. 7. The next aspect to be noticed is that, despite the fact that the appellant sustained serious injuries, no compensation was granted towards loss of earnings. The nature of injuries sustained by the appellant are as follows: (1) Fracture nasal bone and maxilla (2) Fracture left zygoma and NOE fracture (3) Fracture left wrist and base of 2[nd] right metacarpal (4) Avulsion 3 teeth left upper incisor (5) Depressed orbit (L) eye-multiple lacerated wounds left eye-lid, right thigh, both legs and both hands. Considering the nature of injuries it is evident that, he must have been prevented from pursuing his avocation as a carpenter at least for a period of three months. Therefore, compensation has to be granted for the said period. Accordingly, an amount of ``` MACA NO. 2114 OF 2013 ``` ``` 7 ``` Rs.15,000/- is granted under this head. 8. When taking note of the nature of injuries as well as the period of hospitalization, which was 11 days, the amount of Rs.17,000/- awarded by the Tribunal towards pain and suffering appears to be on the lower side. In the facts and circumstances of the case, a further sum of Rs.13,000/- is awarded under the said head. It is also to be noted in this regard that, the Tribunal did not award any compensation for loss of amenities as well. It is to be noted that the appellant sustained serious injuries and it resulted in 10% physical disability as certified by the Medical Board. Such disablement has occurred to the appellant at the age of 37 years. Considering the fact that he has to live with that disability throughout the entire period of his life, certainly, he is entitled to a reasonable amount for loss of amenities and discomforts. In the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.25,000/- under this head. 9. Thus, the total additional compensation is determined as Rs.89,000/- (36,000+ 15,000 + 13,000 + 25,000). In the light of the aforesaid observations and findings this ``` MACA NO. 2114 OF 2013 ``` ``` 8 ``` appeal is allowed. The award dated 14.02.2013 passed by the Motor Accident Claims Tribunal, Irinjalakkuda in O.P.(M.V.) No.1306/2007 is hereby modified by granting an additional compensation of Rs.89,000/- (Rupees eighty nine thousand only) and the said amount shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate as ordered by the Tribunal and proportionate cost, within period of three months from the date of receipt of a copy this judgment. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs