Peter N.J. @ Thomas v. Mathew Johnson, Jancy Johnson & The Divisional Officer, New India Assurance Company Limited, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937** **MACA.No. 2065 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 1192/2011 of M.A.C.T., KOTTAYAM DATED 14-03-2013** ## **APPELLANT(S)/PETITIONER: ------------------------** **PETER.N.J @ THOMAS,** **S/O.JOSEPH, NEDUMPARAMBIL HOUSE, DIVINE NAGAR, KURISUMOODU, CHANGANACHERY, KOTTAYAM DISTRICT. (PETITIONER IN M.A.C.T)** **BY ADVS. SRI.P.M.JOSHI SRI.K.T.SAJU SMT.SIJI K.PAUL** ## **RESPONDENT(S)/RESPONDENTS:-:** **----------------------------** **1. MATHEW JOHNSON, S/O.JOHNSON, KAILATHU HOUSE, THRIKODITHANAM P.O., CHANGANACHERY, PIN - 686 105, KOTTAYAM DISTRICT.** **2. JANCY JOHNSON, W/O.JOHNSON, KAILATHU HOUSE, THRIKODITHANAM P.O., CHANGANACHERRY, PIN - 686 105, KOTTAYAM DISTRICT.** **3. THE DIVISIONAL OFFICER,** - **NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAYAM. (RESPONDENTS IN M.A.C.T)** **R3 BY ADV. SRI.M.JACOB MURICKAN R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA/-** ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------M.A.C.A. No. 2065 of 2013 -------------------------------------------------Dated this the 8[th] day of March, 2016 ## **J U D G M E N T** ## Anil K. Narendran, J. The appeal is for enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Kottayam in OP(MV) No.1192/2011 in respect of the injuries sustained by the appellant, pursuant to a road traffic accident occurred on 09.07.2011 2. The factual position revealed from the proceedings is that the appellant/claimant was proceeding along the road and while so, when he reached the place of occurrence, he was knocked down by a car, bearing Reg.No.KL 33/B-6005, driven, owned and insured by respondents 1 to 3 before the Tribunal, causing serious injuries to him. This led to the claim petition filed by him before the Tribunal seeking compensation. 3. The matter was contested by the 3[rd] respondent. Respondents 1 & 2 were remained ex parte. The nature M.A.C.A. No. 2065 of 2013 **==> picture [20 x 9] intentionally omitted <==** of contention raised by the respondent insurer was mainly on quantum and negligence. 4. The evidence adduced before the Tribunal consists of Exts.A1 to A8 from the part of the appellant and Ext.X1 disability certificate. No oral or documentary evidence was adduced from the part of the respondent insurer. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred solely because of the negligence on the part of the 1[st] respondent, who was the driver of the car and proceeded to fix the compensation accordingly. 6. Coming to the quantum of compensation payable, the case projected by the appellant before the Tribunal was that he was a business man with a monthly income of 8,000/-. Referring to serious consequences₹ resulted because of the injury, a total sum of 7,00,000/-₹ was claimed. But, the Tribunal observed that the occupation and income were not properly proved and accordingly, only 4,500/- was fixed as notional monthly₹ M.A.C.A. No. 2065 of 2013 ..3.. income for working out compensation under different heads. Awarding amounts under different heads, total compensation was fixed as ₹5,64,765/-, which was directed to be satisfied with interest @ 7.5%. The liability, accordingly, was mulcted upon the shoulders of the respondent insurer. 7. Inadequacy of the compensation awarded by the Tribunal is the subject matter of challenge in this appeal. 8. Heard the learned counsel for the appellant and the learned counsel for the respondent insurer. 9. The injuries sustained by the appellant/claimant as noted in paragraph 10 of the Award are as follows; “Petitioner sustained traumatic brain injury, left basal gaylio contusion and right 3[rd] nerve palsy, fracture right humerus, fracture right tibia, fracture both bones of right leg distal 3[rd] .” 10. The amounts awarded by the Tribunal under different heads as given in paragraph 12 are as follows; Extra nourishment ₹1,500/Damage to clothing and articles ₹500/Bystander expenses ₹7,900/Medical expenses ₹2,11,765/Loss of earning ₹27,000/Pain and suffering ₹40,000/- M.A.C.A. No. 2065 of 2013 ..4.. Loss of amenities ₹25,000/Permanent disability ₹2,49,600/----------------Total ₹5,64,765/======= 11. At the time of the accident, the appellant was aged 50 years. He claimed his monthly income as ₹8,000/-. However, no documents were produced before the Tribunal in order to substantiate the same. It was in that circumstances, the Tribunal fixed his notional monthly income as 4,500/-. The appellant has not₹ chosen to enter the box. He has also not chosen to produce any material like the licence issued by the local authority to show that he was conducting business as claimed. However, considering the fact that the accident occurred in the year 2011 and at the time of the accident, the appellant was an able bodied person aged 50 years, we deem it appropriate to refix the notional monthly income of the appellant as 6,000/-.₹ 12. At the time of the accident, the appellant was aged 50 years. In view of the principle laid down by the apex court in **Sarla Verma v. Delhi Transport** M.A.C.A. No. 2065 of 2013 ..5.. **Corporation** [2010 (2) KLT 802 (SC)], the proper multiplier applicable to the age group of the appellant, who has crossed 50 years, is 11. In Ext.X1 disability certificate, the percentage of disability has been certified as 40%, which has already been reckoned by the Tribunal while calculating disability compensation. In the said circumstances, by refixing the notional monthly income of the appellant as ₹6,000/-, the compensation payable under the head, permanent disability comes to ₹3,16,800/- (6000 x 12 x 11 x 40/100). The Tribunal awarded a sum of 2,49,600/- under this head. In the₹ result, the appellant will be entitled for an additional compensation of **₹ 67,200/-** . 13. In the accident, the appellant sustained serious injuries as borne out from Ext.A4 discharge summary. He has also undergone inpatient treatment for a period of 27 days. Considering the nature of the injuries sustained and the treatment the appellant had undergone, the Tribunal awarded loss of earnings for a period of six months, amounting to 27,000/-. Since we have already₹ M.A.C.A. No. 2065 of 2013 ..6.. refixed the notional monthly income of the appellant as ₹6,000/-, on reworking the compensation towards loss of earnings, applying the refixed notional monthly income, the appellant will be entitled to get a sum of 36,000/-₹ (6000 x 6). Thus, after deducting 27,000/- awarded by₹ the Tribunal towards loss of earnings, the balance comes to **₹ 9,000/-** . 14. Towards loss of amenities and enjoyment in life, the Tribunal awarded only a sum of ₹25,000/-. Considering the fact that the appellant sustained serious injuries in the accident, we deem it appropriate to refix the compensation towards loss of amenities and enjoyment in life as 40,000/-, resulting in an additional₹ compensation of **₹15,000/-** . 15. Towards extra nourishment, the Tribunal awarded only 1,500/-. Considering the nature of the₹ injuries sustained and the treatment undergone, we find it appropriate to refix the compensation as 3,000/-₹ towards extra nourishment, resulting in an additional compensation of **₹1,500/-** . M.A.C.A. No. 2065 of 2013 ..7.. 16. The amounts awarded by the Tribunal under other heads appear to be just and reasonable, which do not require any enhancement in the appeal. In the result, the appellant is entitled to get an additional compensation of **₹92,700/-** (Rupees ninety two thousand and seven hundred only), which shall be satisfied with interest @ 9% per annum from the date of the petition till satisfaction. Since the policy is admitted, the 3[rd] respondent insurer shall deposit the additional compensation awarded in this appeal together with interest @ 9% per annum from the date of petition, within one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge