Nikhil P. v. M.K. Muhammed & Others

M.A.C.A.No.3274 OF 2015 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 MACA NO. 3274 OF 2015** **AGAINST THE JUDGMENT DATED 11.02.2015 IN OPMV NO.71 OF 2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE APPELLANT:** **NIKHIL.P AGED 25 YEARS S/O. SURENDRAN, POVANGOTT HOUSE, P.O KOTTOOLI, PARAMBATHKAVU VIA, KOZHIKODE BY ADV SMT.DIVYA B.NAIR** ## **RESPONDENTS:** |**1**|**M.K. MUHAMMED**| |---|---| ||**S/O. AHAMMEDKUNHI HAJI, MATHUKOOTTIYATHIL HOUSE,**| ||**P.O KIZHAKKOTH, KODUVALLI, KOZHIKODE 673 001**| |**2**|**MUHAMMED, AGED 43 YEARS,**| ||**S/O.MOIDEENKUTTY, THANIKKAL HOUSE, P.O KIZHAKKOTH,**| ||**KODUVALLI, KOZHIKODE 673 001**| |**3**|**THE ORIENTAL INSURANCE COMPANY LTD**| ||**KING'S WAY BUILDING, 1ST FLOOR, MAVOOR ROAD JN,**| ||**KOZHIKODE 673 001**| ||**BY ADVS.**| ||**SRI.ALEXY AUGUSTINE**| ||**GEORGE A.CHERIAN**| ||**JACOB MATHEW KAITHALIL(K/000596/1989)**| ||**GEORGE CHERIAN (SR.)(G-81)**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 1.07.2024, THE COURT ON 26.7.2024 DELIVERED THE FOLLOWING:** M.A.C.A.No.3274 OF 2015 2 ## **M.B.SNEHALATHA, J.** **------------------------------------------M.A.C.A.No.3274 OF 2015 ------------------------------------------Dated, this the 26[th] July, 2024** ## **JUDGMENT** Claimant in OP(MV) No.71/2012 of Motor Accident Claims Tribunal, Kozhikode [hereinafter referred to as ‘the Tribunal’] has filed this appeal seeking enhancement of compensation awarded by the Tribunal. 2. On 28.11.2011, the claimant met with a motor vehicle accident while he was travelling as a pillion rider as he was knocked down by a bus bearing registration No.KL-12-B-5004. The accident occurred due to the rash and negligent driving of R2, who was the driver of the offending bus. R1 is the RC owner and R3 is the insurer of the said bus. 3. By the impugned award, the Tribunal awarded a sum of ₹1,25,000/- as compensation with interest at the rate of 9% per annum. 4. Dissatisfied with the amount awarded, the claimant has M.A.C.A.No.3274 OF 2015 3 come up in appeal contending that the amount awarded is inadequate;that the notional income of ₹3,000/- per month taken for assessing the compensation is very low; that the amount awarded is not a just and reasonable compensation as mandated by law and therefore he seeks enhancement of the compensation. 5. Heard the learned counsel for both sides. Records perused. 6. Now let us see whether the claimant is entitled to any enhanced compensation and if so, what is the quantum. 7. It is not in dispute that on 28.11.2011, while the claimant was travelling as a pillion rider of a motor cycle, he met with an accident. It is also not in dispute that the accident occurred due to the rash and negligent driving of R2 who was the driver of the offending bus bearing registration No.KL-12-B-5004. It is an admitted fact that the offending vehicle was validly insured with R3. 8. Claimant’s case is that in the accident he sustained type II open fracture right leg middle 1/3rd , lacerated wound over right leg, fracture of two upper incisors and loss of one incisor and multiple abrasions on left hand and he was treated as inpatient for the period from 28.11.2011 till 10.12.2011 and he had to undergo a surgery on 4.12.2011. He has produced the medical records which M.A.C.A.No.3274 OF 2015 4 would reveal the nature of the injuries sustained by him. The Medical Board has issued Ext.C1 disability certificate to the effect that he sustained permanent disability of 10% due to the injuries sustained in the accident. 9. The Tribunal has assessed the compensation under various heads by fixing the notional income as ₹3000/- per month. 10. The specific case of the claimant who was then aged 21 years is that he was a self employed person engaged in furniture works and was earning ₹12,000/- per month. 11. In _Syed Sadiq and Others v. Divisional Manager, United India Insurance Co.Ltd. [(2014) 2 SCC 735]_ the Hon’ble Supreme Court fixed the notional income of a vegetable vendor in the year 2006 at the rate of ₹6,500/- per month. 12. In _Rajani v. Oriental Insurance Company Ltd. [2022(5) KLT Online 1012 (SC)]_ , where the victim of a motor vehicle accident was a self cultivating agriculturist, the Hon’ble Apex Court held that a robust view has to be taken on the quantum of earnings of a self cultivating agriculturist since documentary evidence may not be available to specifically prove the quantum of earnings of self skilled worker/self cultivating agriculturist. M.A.C.A.No.3274 OF 2015 5 13. In _National Insurance Co. Ltd. v. Pranay Sethi [(2017) 16 SCC 680]_ the Hon’ble Supreme Court has recognized the principle that there would be incremental enhancement in the case of even self-employed individuals in the unorganized sector and with respect to an unspecified job of a coolie considering the increase in cost of living and economic advancement over the years, it can be safely assumed that even a coolie worker would be eligible for incremental addition of ₹500/- in every subsequent year. 14. Bearing in mind the above yardsticks, this Court is of the view that the notional income of the claimant herein can be fixed at ₹8,000/- per month for the purpose of awarding just compensation in the claim petition filed by him. 15. The Tribunal has awarded a sum of ₹9,000/- towards loss of earning calculated at the rate of ₹3,000/- per month for a period of three months. This Court has fixed the notional income as ₹8,000/- per month. Accordingly, claimant is entitled to get an amount of ₹24,000/-[8000x3] under the head loss of earning during the period of treatment. 16. Under the head transport to the hospital, the Tribunal has awarded a sum of ₹1,000/-. The amount awarded by the Tribunal is M.A.C.A.No.3274 OF 2015 6 found to be very meager. Therefore, an additional sum of ₹2,000/is awarded under the head transportation charges. 17. Under the head damage to clothing and articles, the Tribunal has awarded only a sum of ₹500/-, which is on a lower side. Accordingly an additional sum of ₹500/- is awarded under the said head. 18. Towards bystander expenses, as against the claim of ₹5,000/- the Tribunal has awarded only a sum of ₹2,600/-, which is on a lower side. Hence, an additional sum of ₹2,400/- awarded under the said head. 19. Under the head pain and suffering the Tribunal has awarded only a sum of ₹25,000/-. Regard being had to the nature of injuries and the pain and suffering he had to undergo, an additional sum of ₹15,000/- is awarded. 20. It is in evidence that in the accident the claimant sustained type II open fracture right leg and he sustained fracture of two teeth and loss of one tooth. Ext.C1 would reveal that the medical board has assessed his permanent disability as 10%. 21. As the claimant was aged 21 and self employed at the time M.A.C.A.No.3274 OF 2015 7 of accident, the multiplier applicable to him is 18. So under the head loss of earning power due to permanent disability he is entitled to an amount of ₹1,72,800/- (₹8000x12x18x10/100) instead of ₹64,800/- awarded by the Tribunal. Amount under the said head is enhanced accordingly. 22. Under the head loss of amenities, the Tribunal has awarded only a sum of ₹5,000/-. Hence an additional sum of ₹10,000/- is awarded under the said head. 23. The Tribunal has awarded an amount of ₹15,384/- towards treatment expenses based on Ext.A8 series medical bills. Award under the said head requires no interference. 24. The compensation under all other heads stand unaltered. 25. In the result, appeal is allowed. The compensation payable to the respondent/claimant is as indicated in the tabular statement here below:- |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the Tribunal|Total amount after<br>reduction in appeal| |---|---|---|---| |1|Loss of earnings|9000|24,000<br>(8000x3)| 8 M.A.C.A.No.3274 OF 2015 |2|Transport to hospital|1000|3000<br>(1000+2000)| |---|---|---|---| |3|Damage to clothing and<br>articles|500|1000<br>(500+500)| |4|Extra nourishment|1500|1500| |5|Bystander's expenses|2600|5000<br>(2600+2400)| |6|Treatment expenses|15384|15384| |7|Pain and sufferings|25000|40000<br>(25000+15000)| |8|Loss of future earning<br>power|64800|172800<br>(8000x12x18x10/100)| |9|Loss of amenities|5000|15000<br>(10000+5000)| ||Total|124784|277684| Amount enhanced is ₹1,52,900/- (₹277684 - ₹124784) 26. R1 to R3 in the O.P are jointly and severally liable to pay the award amount as enhanced by this Court with 9% interest per annum from the date of petition till realisation. 27. R3 insurance company shall deposit the award amount as enhanced by this Court in the Bank Account of the claimant within a period of two months from the date of receipt of a copy of this judgment after deducting the deposit if any already made. Since there was a delay of 73 days in filing the appeal, the claimant will not be entitled to interest on the enhanced amount for the period of 73 days as directed in C.M.Appli.No.1/2015 in M.A.C.A. No.3274/2015. M.A.C.A.No.3274 OF 2015 9 28. The claimant shall produce the details of the bank account before the Motor Accident Claims Tribunal, Kozhikode within two months from the date of receipt of a certified copy of this judgment. 29. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified in O.M.No.D1/62475/2016 dated 07.11.2019 after deducting the liabilities, if any of the claimant towards tax, balance Court Fee and legal benefit fund. Sd/- **M.B.SNEHALATHA, JUDGE** ab