Nishad K.K v. John P.J and The Manager, Sreeram General Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 ``` ## `MACA NO. 191 OF 2023` ``` AGAINST THE AWARD IN OPMV 162/2018 OF DISTRICT COURT & SESIONS & ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## `APPELLANT/PETITIONER:` ``` NISHAD K.K AGED 41 YEARS S/O VASU, PALAKKAPARAMBIL HOUSE, VIMALANAGAR P.O, THAVINHAL VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN – 670645 ``` ``` BY ADV ABRAHAM MATHEW (VETTOOR) ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1JOHN P.J S/O JOSEPH, PUNNAMTHADATHIL HOUSE, P.O PARAPOYIL CHERUPUZHA, CHORAPADAVU, KANNUR DISTRICT, PIN – 670511 2THE MANAGER, SREERAM GENERAL INSURANCE CO.LTD AMMANKOVIL ROAD, AZAD TOWER, ERNAKULAM, COCHIN, PIN – 682035 ``` ``` BY ADV LINTO FRANCIS ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 191 OF 2023 ``` ``` 2 ``` ## `JUDGMENT` ``` While the appellant was walking through a public road, he was knocked down by the offending vehicle driven in a rash and negligent manner and sustained serious injuries. He was initially taken to the District Hospital, Mananthavady and then shifted to a private hospital, where he had to undergo treatment for ``` ``` over19days.Hethuspreferred ``` ``` OP(MV)No.162/2018 before the Motor Accidents Claims Tribunal, Kalpetta (“Tribunal” for ``` ``` short), seeking compensation to the extent of Rs.6,50,000/-, limited to Rs.5,00,000/-; but which has been allowed only to a sum of Rs.3,10,600/-. He thus assails the compensation as being inadequate. ``` ``` MACA NO. 191 OF 2023 ``` ``` 3 ``` ``` 2.I have heard Sri.Anil Abey Jose – learned counsel for the appellant and Sri.Linto Francis – learned Standing Counsel for the Insurance Company. ``` ``` 3.Sri.Linto Francis argued that the ``` ``` compensation awarded by the Tribunal is without error, particularly because it has accepted the disability of the appellant in terms of Ext.C1 – Disability Certificate. He thus prayed this appeal be dismissed. ``` ``` 4.I have examined the rival contentions of the parties as afore and have tested them on the worth of the evidence on record – copies of which have been made available to this Court by the learned counsel for the parties across the Bar, with the express consent that they can be acted upon, without dispute. ``` ``` MACA NO. 191 OF 2023 ``` ``` 4 ``` ``` 5.Upfront, I notice that the notional income adopted by the Tribunal in favour of the appellant is only Rs.8,000/- and it has cited the reason for this, as being lack of evidence to prove his claim of Rs.25,000/- per month. Even in the case where the income has not been properlyproved,thedeclarationsin ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited.[(2011) 13 SCC 236], should have guided the learned Tribunal and the standardization postulated therein ought to have been adopted by it. Going by the said judgment, even in the case of a person with an unascertainable income in the year of 2017 – when the accident occurred – the minimum notional income to be reckoned is Rs.11,000/-. I see no reason why the Tribunal should not have accepted this. ``` ``` MACA NO. 191 OF 2023 ``` ``` 5 ``` ``` 6.That said, the medical evidence on record, particularly Ext.A5 – Wound Certificate and Ext.A6 – Discharge Summary, establishes that the appellant suffered from“Type II A open fracture both bones left leg upper 1/3 with open mallet finger great toe right with multiple abrasions”(sic). As said above, he had to endure ``` ``` treatment as an inpatient for 19 days. His injuries are not trivial and the pain and suffering suffered by the appellant cannot be ``` ``` understated. I, therefore, propose that the ``` ``` compensation for “Pain and Suffering” be ``` ``` enhanced to Rs,1,00,000/- from Rs.60,000/-, ``` ``` which has been granted by the Tribunal. ``` ``` 7.Even though Sri.Anil Abey Jose – learned counsel for the appellant, sought further amounts under the head “Loss of Amenities”, I ``` ``` MACA NO. 191 OF 2023 ``` ``` 6 ``` ``` do not think it will be warranted, because of the afore escalation and since the disability ``` ``` assessed by the Medical Board, District Hospital, Mananthavady, is only 5%. ``` ``` Resultantly, this appeal is partly allowed ``` ``` in the following manner: ``` ``` a)The compensation under the head “Loss of ``` ``` Earning Power” is enhanced to Rs.99,000/-, ``` ``` reckoning the notional income of the appellant to be Rs.11,000/- and his percentile of ``` ``` disability to be 5%, as certified in Ext.C1. ``` ``` b)Axiomatically, the compensation under the head “Loss of Earning” is revised to ``` ``` Rs.55,000/- from Rs.40,000/-, again reckoning the notional income of the appellant to be Rs.11,000/- per month. ``` ``` c)The compensation under the head “Pain ``` ``` MACA NO. 191 OF 2023 ``` ``` 7 ``` ``` and Suffering” is revised to Rs.1,00,000/- from ``` ``` Rs.60,000/-, now awarded by the Tribunal. ``` ``` In all other heads, the compensation awarded ``` ``` by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled ``` ``` to recover the compensation, as enhanced by this ``` ``` Court, from the respondent – Insurance Company, ``` ``` along with interest at the rate of 8% from the ``` ``` date of filing of the claim until it is realised. ``` ``` However, while calculating the interest, ``` ``` the period of 337 days - being the delay caused by the appellant in filing this appeal - shall stand excluded. ``` ``` The appellant will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` MACA NO. 191 OF 2023 ``` ``` 8 ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` SAS ```