Ouseph U.P v. Tharish Rahiman and The Royal Sundaram Alliance Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 ``` ## `MACA NO. 502 OF 2015` ``` [AGAINST THE AWARD DATED 01.10.2014 IN OP(MV)NO.1877/2010 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAULAM] ``` ## `APPELLANT/PETITIONER:` ``` OUSEPH U.P, AGED 48 YEARS, S/O. POULOSE, RESIDING AT NO.240 (10/213), UTHUPPAN HOUSE, KAYUTHIYAL, KOOVAPPADY POST, ERNAKULAM. ``` ``` BY ADVS. SRI.T.M.RAMAN KARTHA SMT.SYAMA MOHAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1THARISH RAHIMAN, AGED 39 YEARS, S/O. M.M.ABDUL RAHIMAN, 6/635(11/553), NELLIPARAMBATH HOUSE, CHUNANGANVELY, KEEZHMAD, ALUVA, NOW RESIDING AT MANADAN HOUSE, EDATHALA POST, ERNAKULAM DISTRICT, PIN-683 561. ``` ``` 2THE ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., SUNDARAM TOWERS, 46 WHITES ROAD, ROAYAPETTAH, CHENNAI-600 014. ``` ``` BY ADVS.ABHILASH J SRI.P.JACOB MATHEW, SC SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 502 OF 2015 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellant was injured in a road accident on 14.12.2008, when the motorcycle ridden by him was hit by the offending vehicle, driven in a rash and negligent manner.He asserts that he was severely injured and thus treated as an inpatient, as well as requiring follow-up treatment; and that he, therefore, filed OP(MV)No.1877/2010 before the Motor Accidents Claims Tribunal, Ernakulam ('Tribunal', for short), seeking compensation of Rs.36,33,200/-, ``` ``` but allowed only to a sum of Rs.1,80,500/-. He assails the compensation as being inadequate. ``` ``` 2.Sri.T.M.Raman Kartha – learned counsel ``` ``` for the appellant, argued that his client is an Agent of Quarry Rubble; and that Ext.A10 - Pass Book maintained by him would show that he was enjoying an income of Rs.20,000/- at the time of accident. He argued that, however, the learned ``` ``` MACA NO. 502 OF 2015 ``` ``` -3- ``` ``` Tribunal has adopted his notional income to be only Rs.5,000/- and has then granted very less amount under the heads “Loss of Earning”, “Extra Nourishment”, “Bystander Expenses”, “Pain and Suffering” and “Loss of Amenities”; and thus prayedthatcompensationbeenhanced, ``` ``` particularly because the injuries sustained by his client was so severe that he required hospitalization for 14 days and follow-up ``` ``` treatment for nearly three years thereafter. ``` ``` 3.In response, Sri.Mathew Jacob – learned ``` ``` Senior Counsel, instructed by Smt.Preethy R.Nair ``` ``` - appearing for the Insurance Company, submitted ``` ``` that there is absolutely no evidence on record to show that appellant required follow-up ``` ``` treatment for three years; and hence, taking note of the injuries sustained by him, the ``` ``` compensation awarded by the Tribunal is just and ``` ``` fair and does not require any modification. He ``` ``` MACA NO. 502 OF 2015 ``` ``` -4- ``` ``` thus prayed that this Appeal be dismissed. ``` ``` – 4.Sri.J.Abhilashlearnedcounsel ``` ``` appearing for respondent No.1, submitted that the findings of the learned Tribunal against his ``` ``` client, that he was negligent at the time of the ``` ``` accident and thus mulcting him with the liability to paycompensation,after the ``` ``` Insurance Company honours the claimant, is ``` ``` illegal and unlawful. ``` ``` 5.I have considered the afore rival ``` ``` submissions, on the touchstone of the evidence ``` ``` on record, which I have analyzed very carefully. ``` ``` 6.It must be kept in cognizance upfront that the appellant does not have a case that he ``` ``` suffered any permanent disability; and there is no evidence to show that either. Sri.T.M.Raman Kartha, his learned counsel, concedes this, but says that, taking note of Ext.A6 – Medical Report, it is evident that his client was ``` ``` MACA NO. 502 OF 2015 ``` ``` -5- ``` ``` carrying an implant within his body, for union of his fractured femur, for nearly three years; and therefore, thatcompensation for“Loss of Earnings” ought to have been granted for that period. As I have already said above, he also argues that thecompensation for “Loss of Amenities” and “Pain and Suffering” must be enhanced, again taking note of the injuries sustained. ``` ``` 7.Before I move on to the medical evidence ``` ``` on record, I will have to first decide whether ``` ``` the notional income adopted by the Tribunal, in favour of the appellant, was just and proper. As I have recorded above, the appellant’s assertion ``` ``` is that he was earning Rs.20,000/- in his avocation as an Agent of ‘Quarry Rubble’, and he tried to prove it through Ext.A10, which is the Pass Book maintained by him in a Bank; and through Ext.A11, which is the Certificate ``` ``` MACA NO. 502 OF 2015 ``` ``` -6- ``` ``` containing the details of his deposits and withdrawals from 08.03.2011, i.e., after the accident. The learned Tribunal has correctly found that these are not reliable evidence to establish his income, and that there is nothing specifically to indicate what exactly was his earnings. It then, therefore, went on to fix his notional income; but while doing so, adopted a mere Rs.5,000/- for such purpose, which I am certain is inadequate, even going by the judgment of the Hon’ble Supreme Court in ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. ``` ``` 8.As perRamachandrappa(supra), the ``` ``` Hon’ble Supreme Court has postulated that, even for a person with an unascertainable income, or who is working as a ‘Coolie’, the minimum reckonable income in the year 2008 – when the ``` ## `MACA NO. 502 OF 2015` ``` -7- ``` ``` accident occurred – is Rs.6,500/-. Since the evidence, including Exts.A10 and A11, would certainly establish that he was not a mere ‘Coolie’ at the time of the accident, but was ``` ``` engaged in an avocation through which his income was much more, I am of the firm view that, by a rough estimate, his notional income can be fixed at Rs.8,000/-. ``` ``` 9.That being said, it is without doubt ``` ``` from the medical evidence that appellant was ``` ``` hospitalized for 14 days and that he continued to have an implant for fixing the fracture of femur, which was removed only on 17.03.2011, as is evident through Ext.A6. Obviously, he carried ``` ``` the implant for nearly three years; but in the absence of anything to show that he had lost earnings during the said entire period, I cannot find the Tribunal - in having taken a period of four months forcompensation under the head ``` ``` MACA NO. 502 OF 2015 ``` ``` -8- ``` ``` “Loss of Earning” - to have acted incorrectly, particularly when the treatment would have lasted not more than that. ``` ``` 10.However, taking note of the singular ``` ``` fact that the appellant had carried the implant ``` ``` in his body for nearly three years, juxtaposed by the expensive treatment that he had to ``` ``` undergo, I am persuaded to hold that the ``` ``` compensation under the head “Pain and Suffering” ``` ``` and “Loss of Amenities” has to be marginally ``` ``` enhanced. ``` ``` 11.Similarly, as regards thecompensation ``` ``` awarded under the heads “Extra Nourishment” and ``` ``` “Bystander Expenses”, the learned Tribunal has ``` ``` calculated it roughly at the rate of Rs.142/- ``` ``` and Rs.205/- per day, respectively. I propose to enhance them as being Rs.200/- and Rs.300/-, ``` ``` respectively, taking note of the prevalent fiscal standards of the year 2008 - when the ``` ``` MACA NO. 502 OF 2015 ``` ``` -9- ``` ``` accident occurred. ``` ``` 12.There is a corollary argument made by Sri.T.M.Raman Karthawith respect to the ``` ``` interest awarded by the Tribunal, because it has allowed it only from 16.05.2014 on the ground that it was dismissed on 26.10.2013 and restored ``` ``` only on 16.05.2014. His argument is that, the learned Tribunal has acted incorrectly in doing so because, on 30.10.2013 itself, his client had filed the application to restore the claim petition; but which was kept pending until ``` ``` 16.05.2014, when it was allowed. I must say that ``` ``` this argument has substantial force because, the attention of the Tribunal has not engaged to the ``` ``` fact that the application to restore the claim petition was filed by the appellant within four days of the dismissal. I have no doubt that, therefore, no interest could have been deducted for these reasons. ``` ``` MACA NO. 502 OF 2015 ``` **==> picture [30 x 9] intentionally omitted <==** ``` 13.Finally, as regards the argument of the ``` ``` 1[st] respondent, that the findings against him are wrong, I do not think this Court is required to consider it at all, since he is not in appeal. ``` ``` Resultantly, this Appeal is allowed in part in the following manner: ``` ``` (a)The compensation under the head “Loss of ``` ``` Earning” is enhanced to Rs.32,000/- (Rupees ``` ``` thirty two thousand only), from Rs.20,000/- ``` ``` granted by the Tribunal, reckoning the notional income of the appellant to be Rs.8,000/- per ``` ``` month and adopting the period of four months for such purpose. ``` ``` (b) The compensation under the head “Pain ``` ``` and Suffering” is enhanced to Rs.60,000/- ``` ``` (Rupees sixty thousand only), from Rs.30,000/- now awarded by the Tribunal. ``` ``` (c) The compensation under the head “Loss ``` ``` of Amenities” is enhanced to Rs.40,000/- (Rupees ``` ``` MACA NO. 502 OF 2015 ``` ``` -11- ``` ``` forty thousand only), from Rs.20,000/- now granted by the Tribunal. ``` ``` (d) The compensation for “Extra Nourishment” is enhanced to Rs.2,800/- (Rupees two thousand eight hundred only), from Rs.2,000/- as awarded by the Tribunal, reckoning Rs.200/- as the per diem expenses. ``` ``` (e)The compensation under the head ``` ``` “Bystander Expenses”(Attender Expenses) is enhanced to Rs.4,200/- (Rupees four thousand two ``` ``` hundred only), from Rs.3,500/-, reckoning Rs.300/- as the per day expenses. ``` ``` (d)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%, as awarded by the Tribunal, from the date of claim, until it ``` ``` MACA NO. 502 OF 2015 ``` **==> picture [30 x 9] intentionally omitted <==** ``` is recovered.He will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` Consequently, every other finding of the ``` ``` Tribunal, including those against the 1[st] respondent and the liberty granted to the Insurance Company to recover the compensation ``` ``` from the said respondent are left intact; though ``` ``` I clarify that the contentions of the 1[st] respondent have not been touched upon or ``` ``` answered in any manner in this judgment. ``` ``` 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` ``` akv ``` ``` JUDGE ```