## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
```
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944
```
## **`MACA NO. 759 OF 2014`**
```
AGAINST THE AWARD DATED 31.01.2013 IN O.P(M.V) NO.531/2010 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA
```
## **`APPELLANT/PETITIONER:`**
```
NARAYANAN KUTTY
S/O. NARAYANANKURUP, RESIDING AT KIZHAKKELATH HOUSE,
(VAIKUNDAM), IYYAD POST, SIVAPURAM AMSOM, IYYAD DESOM,
KOYILANDY TALUK, KOZHIKODE.
BY ADV SRI.AVM.SALAHUDDEEN
```
## **`RESPONDENTS/RESPONDENTS:`**
```
1NIJESH .N
S/O. NARAYANAN.N. AGE NOT KNOWN, NISHI NIVAS HOUSE,
KUNNATHARA POST, KOYILANDY TALUK, KOZHIKODE 673305.
2BRIJESH.K.
S/O. KRISHNAN.C.K., MUKTHI, 14/529, PANTHALAYANI,
KOYILANDY, KOZHIKODE DISTRICT 673 305.
3UNITED INSURANCE COMPANY LIMITED
BRANCH OFFICE, P.B NO. 17, CITY TOWER, VATAKARA-673101.
R3 BY ADV SRI.T.J.LAKSHMANAN IYER
SRI.JOHN JOSEPH VETTIKAD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
```
```
M.A.C.A.No.759 of 2014
```
```
2
```
## **JUDGMENT**
## **Dated this the 02[nd] day of February, 2023**
This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Vatakara (for short ‘the Tribunal’) on 31.01.2013 in O.P(M.V) No.531/2010. The appellant herein is the petitioner before the Tribunal.
2. For the sake of convenience, 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.
3. The petitioner has been awarded with a total sum of Rs.50,123/- and the 3[rd] respondent insurer was directed to deposit the same with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, within 30 days from the date of receipt of a copy of the award. Cost at a proportionate rate was also awarded. Aggrieved by the quantum of compensation awarded by the Tribunal, petitioner has approached this Court in the appeal on hand seeking for enhancement.
```
M.A.C.A.No.759 of 2014
```
```
3
```
4. According to Sri.A.V.M.Salahuddeen, the learned counsel for the petitioner the Tribunal has fixed the monthly income of the petitioner as Rs.3,500/- on a notional basis. According to him Rs.6,000/- was claimed by the petitioner as his monthly income and since the motor accident which formed the basis of the claim for compensation was occurred in the year 2009, a higher sum ought to have been fixed by the Tribunal as the monthly income. According to him, Rs.4,500/- being the monthly income fixed by the Apex Court while assessing compensation in the case of a coolie worker who met with a motor accident in 2004, Rs.6,500/- could have been fixed as the monthly income. Petitioner had sustained fractures of patella, mandible and maxilla and lacerated wound on chin and knee. According to him, the petitioner’s teeth has become mobile and also suffered fracture due to the accident. He was also hospitalized for 8 days. It is contended by the learned counsel that despite evidence adduced to convince the above effect, the Tribunal failed to award reasonable compensation under various heads.
```
M.A.C.A.No.759 of 2014
```
```
4
```
The learned counsel seeks for modification of the compensation stands awarded by the impugned award, on the basis of the arguments advanced.
5. According to the learned counsel for the 3[rd] respondent, just and reasonable sums have been awarded by the Tribunal as compensation under various heads and therefore, interference is totally unwarranted. The learned counsel has also pointed out that evidence was not adduced by the petitioner to establish his job and monthly income and therefore the Tribunal was constrained to fix Rs.3,500/- as the monthly income on a notional basis. According to him variance of the monthly income is not required in the context on hand.
6. Before delving on various aspects projected by the respective counsel on behalf of the parties to the appeal on hand, this Court is inclined to have a brief discussion on the facts of the case.
7. The accident in the case on hand was occurred at 11.30 am on 24.10.2009 due to the rash and negligent riding
```
M.A.C.A.No.759 of 2014
```
```
5
```
of a Motorcycle bearing Registration No.KL-11/M-6249 by its rider. The petitioner who was riding a Bicycle was knocked down by the Motorcycle abovementioned and in the impact he fell down and sustained serious injuries on his face and right leg. He was rushed to Community Health Centre, Balussery and therefrom to Medical College Hospital, Calicut. He was admitted there on 24.10.2009 and was discharged on 31.10.2009. The rider, owner and insurer of the Motorcycle were arrayed as respondents 1 to 3 in the Original Petition. A total sum of Rs.2,00,000/- was also claimed as compensation. Though served with notice, respondents 1 and 2 remained absent and therefore were declared _ex parte_ .
8. The 3[rd] respondent has filed written statement denying negligence on the part of the 1[st] respondent. A valid and effective driving licence for the 1[st] respondent and other vehicular documents for the vehicle involved in the motor accident were denied. Insurance coverage for the vehicle involved is admitted. The age, occupation, monthly income of the petitioner and quantum of compensation claimed were disputed.
```
M.A.C.A.No.759 of 2014
```
```
6
```
9. Before the Tribunal evidence was adduced by both sides. On the side of the petitioner, Exts.A1 to A6 were marked and on the side of the 3[rd] respondent Ext.B1 was marked. The respondent had also obtained permission to contest the Original Petition with all statutory defences available.
10. It is pertinent to note that the Tribunal had fixed Rs.3,500/- as the monthly income on a notional basis, for failure of the petitioner to substantiate his claims on his occupation and monthly income. Petitioner claimed to be a Coolie worker earning Rs.6,000/- monthly. It is not possible for a Coolie worker to prove his monthly income. In that context, this Court finds it reasonable to fix Rs.6,500/- as the monthly income of the petitioner on the basis of the fixation adopted in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** [(2011) 13 SCC 236].
11. It is noticed from Exts.A2 and A3 that the petitioner had sustained fractures on patella, mandible and
```
M.A.C.A.No.759 of 2014
```
```
7
```
maxilla and lacerated wounds on his chin and knee. He was treated as inpatient for 8 days. The Tribunal has awarded a lumpsum of Rs.12,000/- as compensation towards loss of earning. When viewed in the backdrop of the injuries sustained by the petitioner discussed above, this Court is inclined to take the period for which he was unable to earn income as four months. When compensation is reassessed on the basis of the modified monthly income and the period, Rs.26,000/-(6,500x4)is arrived at. Rs.12,000/- stands awarded by the Tribunal when adjusted against the sum now arrived at, the petitioner will get Rs.14,000/- as additional compensation for loss of earning.
12. Under the head transportation expenses, the sum stands awarded by the Tribunal being Rs.1,000/-, Rs.1,000/more is awarded. Under the head bystander expenses, the Tribunal has arrived at the compensation payable by taking Rs.200/- for 8 days. This Court finds it reasonable to substitute Rs.200/- with Rs.250/- and thus arrived at Rs.2,000/-. Rs.1,600/- being the sum stands awarded by the
```
M.A.C.A.No.759 of 2014
```
```
8
```
Tribunal, Rs.400/- will be the additional compensation. Under the head damages to clothing, this Court is inclined award Rs.500/- more so as to make it to Rs.1,000/-. Under the head extra nourishment also this Court is inclined to assess compensation by taking Rs.250/- per day and thus arrived at Rs.2,000/-. Rs.800/- stands awarded by the Tribunal when adjusted in the sum arrived at now, petitioner will get Rs.1,200/- as additional compensation. Petitioner had sustained fracture of patella as well as facial fractures. When those aspects are considered, Rs.15,000/- stands awarded by the Tribunal as compensation is on the lower side and this Court is inclined to modify it to Rs.40,000/-. Therefore, the petitioner will get Rs.25,000/- as additional compensation. Under the head loss of amenities, when Rs.12,000/- stands awarded by the Tribunal is modified to Rs.15,000/- the petitioner will get Rs.3,000/- as additional compensation.
13. In the re-assessment as above, the petitioner will get Rs.45,100/- (Rupees Forty five thousand and one hundred only) as additional compensation. The said amount will carry
```
9
```
## **`M.A.C.A.No.759 of 2014`**
interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent is exonerated from paying interest for the delay of 294 days occurred in filing the appeal on hand. The 3[rd] respondent insurer shall deposit the additional sum arrived at with interest fixed on it, within a period of two months from the date of receipt of a certified copy of this judgment.
MACA stands allowed accordingly.
Sd/-
**MARY JOSEPH**
**JUDGE** NAB
