Nikhil P.K v. Kunhimoideenkutty, Haskar Mohammed K.K., and HDFC ERGO General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939 MACA.No. 323 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 304/2010 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 29-11-2011 APPELLANT(S)/PETITIONER: ---------------------- NIKHIL P.K S/O.NARENDRAN PATTERY, KUNNUMMAL HOUSE, CHERUPPA AMSOM VALYANNUR DESOM, CHERUPPA POST, KOZHIKODE. ## BY ADV. SRI.AVM.SALAHUDEEN RESPONDENT(S):RESPONDENTS ----------------------------------- ## 1. KUNHIMOIDEENKUTTY - 5/671, DARUL HUDA, OLVANNA, KOZHIKODE-673 025. 2. HASKAR MOHAMMED K.K. S/O.MARAKKAR, THOREKKETHIL HOUSE, VALIYA PARAMBA P.O, MALAPPURAM-673 637. 3. HDFC ERGO GENERAL INSURANCE CO.LTD. CHAIRSSMAC, GROUND FLOOR, 6/845, YMCA ROAD, CALICUT-673 001. ## R3 BY ADV. SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.323 OF 2012 ========================== Dated this the 14[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out the award passed by the Principal Motor Accidents Claims Tribunal, Kozhikode dated 29.11.2011 in O.P.(MV) No.304 of 2010, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 24.06.2009 while he was riding a motorcycle bearing Reg.No.KL-11/V-4895. At the place of accident, the motorcycle was hit by a mini lorry bearing Reg.No.KL-10/V-4008 owned and driven by respondents 1 and 2 respectively and insured with the third respondent. As a result of the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the mini lorry by the second respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- under different heads. 2. Before the Tribunal, respondents 1 and 3 filed separate written statements alleging negligence on the side of the appellant/ claimant. They denied negligence alleged against the second M.A.C.A.No.323/2012 2 respondent driver of the mini lorry and also contended that the amount of compensation claimed is highly exorbitant. The third respondent insurer admitted the insurance coverage of the mini lorry at the time of accident. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant and the report of the Medical Board was marked as Ext.C1. The respondents have not chosen to adduce any oral or documentary evidence. 4. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of mini lorry by the second respondent driver. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.4,68,544/- and directed the third respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 7% per annum from the date of petition, i.e., from 9.2.2010 till realisation, with a cost of Rs.2,000/-. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this M.A.C.A.No.323/2012 3 Court in this appeal. 6. We heard the arguments of the learned counsel for the appellant/claimant and also the learned counsel for the third respondent insurer. 7. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 8. The accident is of the year 2009 and at the time of the accident, the appellant was aged 18 years. He claimed a monthly income of Rs.9,000/-, as a daily labourer. However, no reliable materials were produced before the Tribunal to prove his monthly income at the time of accident. The appellant has also not chosen to mount the box. It was in such circumstances that the Tribunal fixed the monthly income of the appellant notionally at Rs.2,500/-. 9. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** , the Apex Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 as Rs.4,500/-. In the instant case, the accident is of the year 2009 and at the time of accident, the appellant was an able bodied person aged 18 years. Considering the economic M.A.C.A.No.323/2012 4 conditions prevailing as on the date of accident, we deem it appropriate to re-fix his monthly income notionally at Rs.6,500/-, for the purpose of assessing compensation under different heads. 10. The injuries sustained by the appellant, as borne out from Ext.A2 wound certificate, are as follows; “Fracture of both bones right leg and fracture mandible (left)”. As borne out from Ext.A3 reference card, the appellant had undergone inpatient treatment for a period of 140 days. He sustained serious injuries including hip dislocation. Ext.C1 is the disability certificate issued by the Medical Board, as per which the appellant is having a permanent disability of 53%, as a result of the injuries sustained in the accident. 11. The compensation awarded by the Tribunal under different ## heads reads thus:- |reads thus:-||| |---|---|---| |Head of claim|Amount claimed|Amount allowed| |Loss of earning|40000|15000| |Transport to hospital|5000|1500| |Extra nourishment|10000|1000| |Damage to clothing and<br>other articles|1000|400| |Treatment expenses|155000|152244| |Bystander's expenses|nil|14000| |Pain and sufferings|100000|25000| |Permanent disability|575000|254400| |Loss of amenities of life|75000|5000| M.A.C.A.No.323/2012 5 |Head of claim|Amount claimed|Amount allowed| |---|---|---| |Total||468544| 12. Towards loss of earning, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.2,500/- for a period of six months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, compensation for loss of earning awarded by the Tribunal for a period of six months warrants no interference. Since we have already re-fixed the monthly income of the appellant notionally at Rs.6,500/-, the compensation under this head is re-worked as Rs.39,000/- (6,500x6), resulting an additional compensation of **Rs.24,000/-** . 13. Towards extra nourishment and bystander's expenses, the Tribunal awarded a sum of Rs.1,000/- and Rs.14,000/- respectively. The appellant had undergone inpatient treatment for a period of 140 days. Since the accident is of the year 2009, the appellant is entitled for compensation under the head extra nourishment at the rate of Rs.100/per day and that under the head bystander's expenses at the rate of Rs.200/- per day. In the result, the compensation under the head extra nourishment is re-fixed as Rs.14,000/- (100x140), resulting an additional compensation of **Rs.13,000/-** . Similarly, that under the head bystander's expenses is re-fixed as Rs.28,000/- (200x140), M.A.C.A.No.323/2012 6 ## resulting an additional compensation of **Rs.14,000/-** . 14. Towards damage to clothing, the Tribunal awarded a sum of Rs.400/-. Considering the fact that the accident is of the year 2010, we deem it appropriate to re-fix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.600/-** . 15. Towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of the injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we find that the compensation awarded under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. 16. Towards permanent disability, the Tribunal awarded a sum of Rs.2,54,400/-, taking Rs.2,500/- as the notional monthly income, applying the multiplier of '16' and the percentage of disability as 53%, as certified in Ext.C1 disability certificate. In view of the judgment of the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802]** , the proper multiplier applicable is '18'. Since we have already re-fixed the monthly income of the appellant notionally at Rs.6,500/-, applying the multiplier of '18' and the percentage of disability as 53%, the compensation payable under the head permanent M.A.C.A.No.323/2012 7 disability is re-worked as Rs.7,44,120/- (6,500x12x18x53/100), resulting an additional compensation of **Rs.4,89,720/-** . 17. Towards loss of amenities, the Tribunal awarded only a sum of Rs.5,000/-. Considering the fact that, the injuries sustained by the appellant has resulted in a permanent disability of 53%, as certified in Ext.C1 disability certificate, we deem it appropriate to re-fix the compensation under this head as Rs.50,000/-, resulting an additional compensation of **Rs.45,000/-** . 18. On 13.7.2012, the appellant filed I.A.No.1813 of 2012 under Order XLVI Rule 27 of the Code of Civil Procedure, 1908 producing therewith certain documents to show that, subsequent to the award passed by the Tribunal he had incurred Rs.92,766/- towards medical expenses, transportation expenses, etc. On 4.4.2017, the appellant filed I.A.No.1354 of 2017, another application under Order XLVI Rule 27 of the Code, producing therewith two discharge summaries for the periods from 1.2.2011 to 14.2.2011 and from 22.2.2012 to 5.3.2012. The medical expenses alleged to have been incurred based on the said documents cannot be awarded without proper proof. In such circumstances, we find no reason to allow the amount claimed by the appellant towards medical expenses on the M.A.C.A.No.323/2012 8 strength of the above documents. However, considering the nature of injuries sustained, the treatment undergone and also the disability that has arisen out of such injuries, we deem it just and proper to grant the appellant a sum of **Rs.20,000/-** towards future treatment expenses, which will carry interest at the rate of 8% per annum from the date of this judgment, till realisation. 19. At the time of accident, the appellant was a bachelor aged 18 years. The injuries sustained by the appellant, which includes hip dislocation, has resulted in a permanent disability of 53%, as certified in Ext.C1 disability certificate. The disabilities noted in Ext.C1 will certainly have an adverse impact on his marriage prospects. Therefore, considering the age of the appellant and also the nature of disabilities, we deem it appropriate to grant a sum of **Rs.40,000/-** towards loss of marriage prospects. 20. In the result, the appellant/claimant will be entitled for an additional compensation of **Rs.6,46,320/-** (24,000+13,000+14,000+ 600+4,89,720+45,000+20,000+40,000) in this appeal which will carry interest at the rate of 8% per annum from the date of petition till realisation, excluding Rs.20,000/- granted under the head future treatment expenses, which will carry interest at the rate of 8% per M.A.C.A.No.323/2012 9 annum only from the date of this judgment, till realisation. 21. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. On such deposit being made, the Tribunal shall realise the additional court fee payable by the appellant/claimant for compensation in excess of that claimed in the claim petition. Appeal is disposed of as above. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/**