Prabhakaran Nair v. Divisional Manager, National Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939 MACA.No. 1050 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 592/2010 of M.A.C.T., KOLLAM DATED 25-10-2012 APPELLANT(S)/PETITIONER: ----------------------- PRABHAKARAN NAIR S/O.GOVINDAN NAIR, G. B. SADANAM, POOTHAKKULAM, KOLLAM BY ADV. SRI.PRATHEESH.P RESPONDENT(S)/3[rd] RESPONDENT: -------------------------- DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD. KOLLAM-691001 BY ADV. SRI.RAJAN P.KALIYATH BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ. --------------------------------------------------------M.A.C.A.No. 1050 of 2013** **---------------------------------------------------** Dated this the 14[th] day of December, 2017 ## **JUDGMENT** ## **MARY JOSEPH, J:** The petitioner in O.P(MV) No.592 of 2010 has approached this Court in this appeal seeking enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Kollam (for short 'the M.A.C.T.') According to him, he was knocked down by a motor cycle bearing Reg.No.KL-4/J-167, at 9.30 p.m. on 28.6.2009 while walking through ParippallyMadathara public road. It is contended that the accident was resulted from the rash and negligent riding of the motor cycle by its rider. Claiming a total compensation of `1,25,000/-, the claim . petition was preferred by him as O.P(MV) No.592/2010 2. Before the Tribunal, the rider of the motor cycle, its owner and insurer were arrayed respectively as the first, second and third respondents. The first and second respondents remained ex parte **M.A.C.A.1050/2013** 2 before the Tribunal, whereas the third respondent/insurer had contested the claim petition. 3. The petitioner has let in evidence as Exts.A1 to A12. No evidence, either oral or documentary, was let in by the third respondent. 4. The evidence on record was appreciated and compensation payable to the petitioner was arrived at by the Tribunal as `45,080/- and rounded it off to `45,500/-. The respondent insurance company was directed to pay the said sum, with interest at the rate of 7.5% per annum from the date of the claim petition till the date of realisation, within three months from the date of the award and in case of failure to do so, to pay interest at the rate of 9% per annum. A cost of `1000/- was also awarded. Highly aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner has approached this Court in this appeal. 5. Sri.Pratheesh.P., the learned counsel for the petitioner contended that the Tribunal failed to compute compensation **M.A.C.A.1050/2013** 3 adequately. According to him, the monthly income of the petitioner was fixed notionally by the Tribunal as `3000/- and it is on the lower side. The claim raised by the petitioner before the Tribunal was that he was a Security Guard and was aged 64 years at the relevant time of accident. It is contended by the counsel that the year of accident was 2009 and that should also be a relevant factor for the Tribunal while fixing the monthly income and in the case on hand, the Tribunal failed to consider the same. The argument of the learned counsel secondly was that the compensation awarded by the Tribunal under the head 'extra nourishment' requires interference, it being on the lower side. The third argument of the learned counsel was that the Tribunal failed to award any sum as compensation under the heads, 'loss of amenities' and 'damages to clothing'. Lastly and finally, it is contended by the learned counsel that injuries sustained by the petitioner would have a serious impact on the petitioner, he being at the age of 64 years at the relevant time and therefore, the **M.A.C.A.1050/2013** 4 percentage of disability ought to have been considered by the Tribunal on the higher side for fixation of compensation. 6. The contention of Sri.Rajan.P.Kalliyath, the learned counsel representing the respondent, was that the award passed by the Tribunal is a well considered one and the compensation granted to the petitioner is reasonable and adequate and interference by this court on any count is uncalled for. 7. In the backdrop of the rival contentions advanced, it is incumbent upon us to appreciate the evidence on record to see whether the computation done by the Tribunal is improper and unreasonable in any respect. The first contention of the learned counsel is about the adoption of the monthly income by the Tribunal, being on the lower side. Evidently, the petitioner had mounted the box to depose as PW1. He has stated categorically his age as 64 years and his job as a Security Guard. But, the claims are strictly not supported by any materials. As rightly pointed out by the learned counsel representing the petitioner, the Tribunal **M.A.C.A.1050/2013** 5 should have borne in mind the year of accident also while fixing the monthly income. It is pertinent to note that the Apex Court in v. **Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] had fixed the monthly income in the case of a coolie, who met with a motor accident, in the year 2004 as `4500/-. The petitioner in the case on hand was aged 64 years at the relevant time of accident and therefore, we will be justified to take his monthly income as `4000/- in the place of the notional income adopted by the Tribunal. The argument secondly advanced is related to the meagerness of the compensation awarded under the head 'extra nourishment'. The Tribunal seems to have fixed a lumpsum amount of `1000/- as compensation under the said head. The third argument was related to the non-granting of any amount as compensation under the heads 'loss of amenities' and 'damages to clothing'. It is evident from the documentary evidence available as Exts.A6 to A11 that the petitioner had sustained fracture of both **M.A.C.A.1050/2013** 6 bones of his wrist. It is also borne out therefrom that the petitioner had undergone inpatient treatment for a period of 20 days. In the said circumstances, there is every justification for the claim of the petitioner that the Tribunal failed to compensate him reasonably under the aforementioned heads. 8. The accident being in the year 2009, `100/- per day would be a reasonable sum for computation of compensation for extra nourishment. On account of the fracture of both bones of wrist sustained by the petitioner, necessarily he must have been kept out of enjoyment of the amenities in life. 'Damages to clothing' is also a probable consequence of the accident, the gravity of which could easily be ascertained on a glance of the injuries suffered. The Tribunal has taken 4% as the permanent disability of the petitioner without the same being supported by any evidence. The argument of the learned counsel for considering a higher percentage of disability in view of the old age of the petitioner, in the absence of any supportive evidence being let in, **M.A.C.A.1050/2013** 7 does not seem to be sound and acceptable. However, in our refixation of monthly income as `4000/-, there would be corresponding increase in the quantum of compensation under that head also. 9. In the backdrop of the discussion had by us as aforesaid, the compensation payable is reassessed in the following manner:- Loss of earnings (4000x3) - `12,000/Extra nourishment (100 x 20) - `2,000/Loss of amenities - `10,000/Disability (4000x12x7x4/100) - `13,440/Damages to clothing - `1,000/- 10. The Tribunal has already awarded `10,080/- as compensation under the head 'disability', `9,000/- under the head 'loss of earnings', and `1000/- under the head 'extra nourishment'. On deduction of those amounts from the sums now arrived at by us as shown hereinabove, the total sum payable to the petitioner in addition would come to `18,360/-, rounded off to `18,400/-. The said amount would carry interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. **M.A.C.A.1050/2013** 8 In the result, this appeal stands allowed and the petitioner is found entitled to get a sum of `18,400/- in addition to the compensation already awarded by the Tribunal as per the impugned award with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. The insurer, the sole respondent herein is directed to deposit the said sum within one month from the date of receipt of a copy of this judgment. No order as to costs. **Sd/-** ## **C.T.RAVIKUMAR, JUDGE** **Sd/-** ## **spc** / **MARY JOSEPH , JUDGE** **M.A.C.A.1050/2013** 9 **M.A.C.A.1050/2013** 10 **M.A.C.A.1050/2013** 11