Nixon s/o Peter vs Reliance General Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 ``` ## `MACA NO. 2330 OF 2017` ``` [AGAINST THE AWARD DATED 25.01.2017 IN OP(MV)NO.1767/2012 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR] ``` ``` APPELLANT/PETITIONER: ``` ``` NIXON, S/O PETER, SRAMBICKAL, EDAYAR, BINANIPURAM. ``` ``` BY ADV SRI.A.N.SANTHOSH ``` ## `RESPONDENT/3RD RESPONDENT:` ``` RELIANCE GENERAL INSURANCE COMPANY LTD., 2ND FLOOR, GLOBEL PLAZA, NEW RAILWAY PLATFORM, VANCHIKULAM ROAD, POTHOOLE P.O, THRISSUR -680004. ``` ``` BY ADVS: SRI.R.AJITH KUMAR (128/84) ``` ``` SRI.TAPAS VARMA-SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2330 OF 2017 ``` ``` -2- ``` ## `JUDGMENT` ``` This matter is of the year 2017 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore, admit this Appeal and proceed to dispose it of finally, with the consent of both sides. ``` ``` 2.The appellant was injured in a road accident on 25.09.2012, when he was knocked ``` ``` down by the offending motorcycle, while he was standing in a public bus stop waiting for a bus. He sustained grievous injuries and had to be ``` ``` rushed to the hospital, where he endured treatment, including as an inpatient for three days. He thereupon filed OP(MV)No.1767/2012 before the Motor Accidents Claims Tribunal, Perumbavoor (‘Tribunal’, for short), seeking ``` ``` MACA NO. 2330 OF 2017 ``` ``` -3- ``` ``` compensation of an amount of Rs.3,85,000/-, limited to Rs.2,50,000/-; but which has been allowed only to a sum of Rs.1,11,599/-. He thus assails the compensation as being inadequate. ``` ``` 3.Sri.A.N.Santhosh – learned counsel for the appellant, argued that the primary reason why the compensation in favour of his client has been fixed low by the Tribunal is because it has adopted the notional income to be Rs.5,000/- per month, though he had claimed Rs.9,000/-, asserting that he is a welder. He argued that when there is evidence to establish both these factum, the figure of Rs.9,000/- ought to have been adopted. He then took me extensively ``` ``` through the medical evidence on record, to argue ``` ``` that the compensation awarded by the Tribunal under the heads “Pain and Suffering” and “Loss of Amenities” is too exiguous; while it ought to have granted much higher amounts under the head ``` ``` MACA NO. 2330 OF 2017 ``` ``` -4- ``` ``` “Extra Nourishment” and “Bystander Expenses”. He ``` ``` thus prayed that this Appeal be allowed. ``` ``` 4.In response, Sri.Tapas Varma – learned ``` ``` Standing Counsel for the Insurance Company, contended that the accident happened in the year 2012 and, therefore, that the fiscal standards of that time alone could have guided the learned ``` ``` Tribunal, as it has correctly reckoned in the Award. He thus prayed that this Appeal be dismissed. ``` ``` 5.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the ``` ``` parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 6.On the question of notional income of the appellant, I have no doubt that the learned Tribunal has erred in adopting a mere Rs.5,000/- ``` ``` MACA NO. 2330 OF 2017 ``` ``` -5- ``` ``` in this regard. This is because, in ``` ``` Ramachandrappa v. Manager, Royal Sundaram ``` ``` Alliance Insurance Company Ltd. [(2011) 13 SCC ``` ``` 236], the Hon’ble Supreme Court has postulated that, even in the case of a person who is a ``` ``` ‘Coolie’, or with an unascertainable income, in ``` ``` the year 2012 – when the accident occurred – the ``` ``` minimum figure to be reckoned is Rs.8,500/-. ``` ``` Even though the appellant claims that he is a ``` ``` welder, there is absolutely no evidence on ``` ``` record to establish it; and therefore, I have ``` ``` no doubt that the afore figure alone would have been adopted. ``` ``` 7.That said, the medical evidence, ``` ``` particularly Ext.A5 - Wound Certificate, show ``` ``` that the appellant has suffered following injuries: ``` ``` “Depressed fracture lateral tibial condyle(L), pain with tenderness left knee and left ankle.” (sic) ``` ``` MACA NO. 2330 OF 2017 ``` ``` -6- ``` ``` 8.The appellant was admitted and treated in a hospital as an inpatient for three days; and Ext.A6 – Discharge Summary records that he had sustained “split depressed fracture lateral tibial condyle (L).” (sic) These injuries are not trivial, and I am certain that the appellant must have gone through certain amount of agony and pain, at least until the treatment lasted and his fractures had been united. I have little doubt, therefore, that the compensation under the heads “Pain and Suffering” and “Loss of ``` ``` Amenities” require to be marginally increased, which I propose to be Rs.30,000/- and Rs.25,000/-, respectively. ``` ``` 9.As regards the compensation awarded by ``` ``` the Tribunal under the heads “Extra Nourishment” and “Bystander Expenses”, I notice that it has been awarded at the rates of Rs.500/- and ``` ## `MACA NO. 2330 OF 2017` ``` -7- ``` ``` Rs.200/- respectively. I do not think this is exiguous, going by the fiscal standards of the year 2012. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` ``` (a)The compensation under the head “Loss of Earnings” is enhanced to Rs.25,500/- (Rupees ``` ``` twenty five thousand five hundred only), from Rs.15,000/- awarded by the Tribunal, reckoning the notional income of the appellant to be Rs.8,500/- per month and adopting the period for ``` ``` such purpose being three months, as correctly taken by the Tribunal. ``` ``` (b)The compensation under the head ``` ``` “PermanentDisability”isenhancedto ``` ``` Rs.30,600/- (Rupees thirty thousand six hundred only), from Rs.18,000/-, reckoning the notional income of the appellant to be Rs.8,500/- per month and his percentile of disability to be ``` ``` MACA NO. 2330 OF 2017 ``` **==> picture [22 x 9] intentionally omitted <==** ``` ‘3’, as certified in Ext.C1 and correctly taken by the learned Tribunal. ``` ``` (c)The compensation under the head “Pain ``` ``` and Suffering” is enhanced to Rs.30,000/-, ``` ``` (Rupees thirty thousand only), from Rs.20,000/- now awarded by the Tribunal. ``` ``` (d)The compensation under the head “Loss of ``` ``` Amenities” is enhanced to Rs.25,000/- (Rupees twenty five thousand only), from Rs.15,000/- now awarded by the Tribunal. ``` ``` (e) In all other heads, the compensation ``` ``` granted by the Tribunal will remain intact. ``` ``` Consequently, the appellant will be at full liberty to recover the compensation, as enhanced ``` ``` by this Court, from the Insurance Company, along with interest at the rate of 8.5% (modifying the rate of interest of 9% granted by the Tribunal, in view of the escalation granted by this Court), from the date of claim until it is ``` ## `MACA NO. 2330 OF 2017` **==> picture [22 x 9] intentionally omitted <==** ``` recovered.He will also be entitled to ``` ``` proportionate costs on the enhanced amount as ``` ``` ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy ``` ``` this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```