## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR**
**& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**
**WEDNESDAY, THE 19TH DAY OF JULY 2017/28TH ASHADHA, 1939**
**MACA.No. 1277 of 2011 ( ) --------------------------**
**OP MV 2601/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,THRISSUR DATED 27-04-2011**
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## **APPELLANT/PETITIONER:**
**-------------------------------------**
**P.A.JOSE, S/O.ANTHONY, PUTHOOR HOUSE, P.O.ADATT, THRISSUR DISTRICT**
## **BY ADV. SRI.P.V.CHANDRA MOHAN**
## **RESPONDENT(S):**
- **--------------**
**1. RAJAMUTHU CHITHAMBARAM, S/O.KANDASAMY UDAYAR, NANGAVALLI MAIN ROAD,, ASIRIAR COLONY,8/24,SITHI VALAYAPURI STREET,, THARAMANGALAM**
**P.O.,OMALLUR, SALEM**
**2. SEKHARA M,S/O.MANICKAN, 7/6A, PILLAYARKOIL STREET,THARAMANGALAM P.O.,OMALLUR, SALEM, TAMILNADU**
**3. UNITED INDIA INSURANCE CO.LTD, 19/2A,JUNCTION MAIN ROAD, OPP.RAJA MALYANA MANAL, SALEM. 6000 001. R3 BY ADV. SMT.P.K.SANTHAMMA**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**sdr/-**
## **C.T. RAVIKUMAR & ANIL K.NARENDRAN, JJ.**
**............................................ M.A.C.A.No. 1277 of 2011 ...............................................** Dated this the 19[th] day of July, 2017
## **JUDGMENT**
## **Anil K.Narendran, J**
This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Thrissur dated 27.04.2011 in O.P. (MV) No.2601 of 2004, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident occurred on 15.11.2003, while he was driving an autorickshaw, bearing registration No.KL8/G-5230. At the place of accident, it was hit by a tempo van bearing registration No.TN-27/S-5455, owned, driven and insured by the respondents 1 to 3 respectively. As a result of the accident, the appellant/claimant sustained injuries and damages were caused to the autorickshaw owned by him. Alleging that the accident occurred due to the rash and negligent driving of the tempo van by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of 2,39,500/- under different heads. ₹
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2. Before the Tribunal Exts.A1 to A16 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence.
3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the tempo van by the 2[nd] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent owner. Under different heads, the Tribunal awarded a total sum of 97,578/- as₹ compensation, which includes a sum of 10,600/- awarded for₹ the damage sustained to the autorickshaw, and directed the 3[rd]
respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of petition, i.e., from 14.10.2004, till deposit with proportionate costs.
4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal.
5. We heard arguments of the learned counsel for the appellant/claimant and also the learned counsel for the 3[rd]
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respondent insurer.
6. 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.
7. The accident is of the year 2003 and at the time of accident, the appellant/claimant was aged 46 years. The accident occurred while he was driving his own autorickshaw and he claimed a monthly income of 7,000/-. In the absence₹ of any reliable materials and since he has not even chosen to mount the box, the Tribunal fixed the monthly income notionally at ₹2,500/for the purpose of assessing compensation under different heads.
8. The accident occurred while the appellant/claimant himself was driving the autorikshaw. The driving licence of the appellant/claimant is also placed on record and marked as Ext.A15 before the Tribunal. In _**Ramachandrappa v. The Manager, Royal Sundaram Aliance Insurance Company Limited**_ [ _**AIR 2011 SC 2951]**_ the Apex Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004, as 4,500/-.₹ The accident in the instant case
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took place on 15.11.2003. The materials on record would indicate that the appellant/claimant was eking his livelihood as an auto driver. In such circumstances, we deem it appropriate to re-fix his monthly income at 5,000/- for the purpose of₹ assessing compensation under different heads.
9. The injuries sustained by the appellant/claimant, as borne out from Ext.A6 Accident Register-cum-wound Certificate, read thus;
_“Lacerated wound 4x.5cm on chin area and another lacerated wound 5x.5cm on mid part of forehead and mild cerebral edema and in the CT scan, fracture of ethmoid complex was also detected_ .”
The medical records would show that he had undergone impatient treatment for a period of 15 days. Ext.A10 is the disability certificate issued by Dr.V.R.Ramakrishnan of Jubilee Mission Hospital, Thrissur certifying a permanent whole body disability of 12%. However, the appellant/claimant has not chosen to prove the said documents by examining the doctor concerned. In the absence of any reliable materials, the Tribunal took the percentage of disability as 4%, for the purpose of awarding compensation under the head disability. Since the appellant/claimant has not chosen to prove Ext.A10
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disability certificate in accordance with law, the procedure adopted as above by the Tribunal warrants no interference in this appeal.
10. The compensation awarded by the Tribunal under
different heads reads thus:-
|**_Sl._**<br>**_No._**|**_Head of Claim_**|**_Amount Claimed_**<br>**_(in Rupees)_**|**_Amount_**<br>**_Awarded_**<br>**_(in Rupees)_**|
|---|---|---|---|
|1|Loss of earning (Total)|40000|7500|
|2|Loss of earning (partial)|||
|3|Medical and Miscellaneous Expenses|45000|43878|
|4|Future treatment|7500||
|5|Bystander Expenses|3500|2000|
|6|Transportation Expenses|1500|1000|
|7|Extra Nourishment|2000|1500|
|8|Damages to Clothing, etc|500|500|
||Damages to Autorickshaw|14500|10600|
|9|Pain and suffering|25000|15000|
|10|Disability, etc.<br>Loss of amenities<br>Loss of earning power<br>Discomfort|100000|15600|
||Total|2,39,500|97578|
11. Towards loss of income, the Tribunal awarded a
sum of 7,500/- for three months, by taking the monthly₹ income as ₹2,500/-. Considering the nature of injuries sustained and the treatment the appellant/claimant had
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undergone, as borne out from medical records, he is entitled for loss of earnings for a period of three months. Since we have already re-fixed the notional monthly income of the appellant/claimant as ₹5,000/-, the compensation payable under this head is re-worked as 15,000/- (5000x3),₹ resulting an additional compensation of **₹7,500/-.**
12. Towards bystanders expenses and extra nourishment, the Tribunal awarded a sum of 2,000/- and₹ ₹1,500/- respectively. The appellant/claimant had undergone impatient treatment for a period of 15 days. Since the accident is of the year 2003, he is entitled for compensation under the head bystanders expense at 150/- per day and that₹ under the head extra nourishment at ₹100/per day. Therefore, under the head bystanders expenses, the appellant/claimant is entitled for a sum of 2,250/-(150x15),₹ resulting an additional compensation of ₹ **250/-** . The compensation of 1,500/-awarded by the Tribunal under the₹ head extra nourishment warrants no enhancement.
13. Towards pain and suffering the Tribunal awarded a sum of 15,000/-. Considering the nature of injuries sustained₹ and the treatment, the appellant/claimant had undergone, as
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borne out from medical records, we deem it appropriate to refix the compensation under this head as 20,000/-, resulting₹ an additional compensation of **₹5,000/-** .
14. Towards loss of amenities, no amount has been awarded by the Tribunal. Considering the nature of injuries sustained and the disability that may arise therefrom, we deem it appropriate to grant a sum of **₹10,000/-** under the head loss of amenities.
15. Towards disability compensation, the Tribunal awarded a sum of 15,600/- taking the monthly income as₹ ₹2,500/-, applying the multiplier of 13 applicable to the age group of appellant/claimant and the percentage of the disability as 4%. Since we have already re-fixed the monthly income of the appellant/claimant as ₹5,000/-, the compensation under this head is re-worked as 31,200/-₹ (5000x12x13x4/100), resulting an additional compensation of **₹15,600/-.**
16. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which warrants no enhancement in this appeal.
17. In the result, the appellant/claimant will be entitled
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**-** for an additional compensation of **₹38,350/** (7500+250+5000+10000+15600) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation.
18. Since the insurance coverage of the offending vehicle is not in dispute, the 3[rd] 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.
Appeal is disposed of as above. No orders as to costs.
Sd/-
**C.T.RAVIKUMAR, JUDGE**
sd/-
**ANIL K.NARENDRAN JUDGE**
AMV/22/07/2017
/TRUE COPY/ P.A.TO JUDGE
