PRADEESH.M.D. v United India Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946 MACA NO. 2306 OF 2019** **OPMV NO.637 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **PRADEESH.M.D., AGED 35 YEARS S/O DEVASSYKUTTY, MALIAKKAL HOUSE, WEST CHALAKUDY VILLAGE, DESOM AND P.O.THRISSUR DISTRICT** **BY ADV A.N.SANTHOSH** ## **RESPONDENT/2ND RESPONDENT:** **UNITED INDIA INSURANCE COMANY LTD. PB NO 1, SREEKUMAR BUILDING , SOUTH JUNCTION, CHALAKUDY-680 307, REP BY ITS MANAGER** **( NO RELIEF IS CLAIMED AGAINST THE 1ST RESPONDENT IN THE CLAIM PETITION AND THEY HAVE NOT BEEN MADE PARTIES TO THIS APPEAL).** ## **OTHER PRESENT:** **SRI. P.K. MANOJKUMAR -SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 31.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 2306 OF 2019 ..2.. ## JUDGMENT This appeal has been filed by the claimant in OP(MV) No.637 of 2016 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondent herein was the second respondent before the tribunal. 2. The case of the appellant/claimant is that on 29.11.2015, while he was pillion riding on a motorcycle bearing Reg.No.KL-64-A-8114 through Chalakudy - Mala public road, ridden by the first respondent before the tribunal, the motorcycle skidded, whereby the appellant sustained serious injuries. He approached the tribunal claiming a total compensation of 2,50,000/-.₹ 3. The first respondent remained ex parte before the tribunal. The respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, Exts.A1 to A10 were marked on the side MACA NO. 2306 OF 2019 **==> picture [31 x 8] intentionally omitted <==** of the appellant/claimant. No evidence was adduced by the respondents. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the rider of the offending vehicle and awarded a sum of 2,28,760/- as compensation under₹ different heads against the second respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellant claims enhancement under the following heads; 5.1. Notional income - The learned counsel for the appellant submits that though the appellant claimed that he was earning 30,000/- per month, the tribunal has fixed the₹ notional monthly income at 9,000/-. It is submitted that the₹ appellant was an MBA graduate and was working in a private firm as Marketing Manager. As per the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the notional MACA NO. 2306 OF 2019 **==> picture [31 x 8] intentionally omitted <==** monthly income of the appellant ought to have been fixed at ₹10,000/-. However, though no documents have been produced to prove the monthly income of the appellant, considering the fact that he was an MBA graduate at the time of accident, I deem it appropriate to refix his notional monthly income at 12,000/-.₹ 5.2. Loss of earnings - The learned counsel for the appellant submits that the tribunal awarded loss of earnings only for a period of two months, which is on the lower side. On a consideration of the injuries sustained by the appellant, I am of the opinion that loss of earnings can be granted to the appellant for a period of four months. Since the notional monthly income of the appellant is refixed at 12,000/-, the₹ total compensation towards loss of earnings for a period of four months would come to 48,000/-. Thus, the appellant will₹ be entitled to get an additional compensation of 30,000/-₹ towards loss of earnings. 5.3. Pain and suffering - The learned counsel for the appellant submits that though the appellant claimed 50,000/-₹ towards pain and suffering, the tribunal awarded only MACA NO. 2306 OF 2019 **==> picture [31 x 8] intentionally omitted <==** ₹25,000/-. Considering the injuries sustained by him, I am inclined to grant an amount of 40,000/- to the appellant as₹ total compensation towards pain and suffering. Thus, the appellant will be entitled to get an additional amount of ₹15,000/- as compensation towards pain and suffering. 5.4. Permanent disability - The learned counsel for the appellant submits that as per Ext.A6 disability certificate, permanent disability of the appellant was assessed at 10.04%, which was reduced by the tribunal to 7% while assessing compensation. This reasoning of the tribunal does not appear to be acceptable in view of the decisions of this Court in Manikantan G. v. K.Janardhanan Nair [2021(5) KHC 305] and Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC]. Therefore, I deem it appropriate to consider 10.04% disability, as assessed in Ext.A6 disability certificate, for the purpose of calculating compensation. Thus, following the decisions reported in National Insurance Co.Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)] and Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], the appellant will be entitled to get a total compensation of 2,31,321/- (12000 x 12 x 16 x 10.04%)₹ MACA NO. 2306 OF 2019 **==> picture [31 x 8] intentionally omitted <==** towards permanent disability. Hence, there will be an additional amount of 1,10,361/- under the head of permanent₹ disability. 5.5. Loss of amenities - Though the appellant claimed an amount of 50,000/- under this head, the tribunal awarded₹ only an amount of 18,000/-,₹ which, according to the appellant, is on the lower side. Considering the injuries sustained by the appellant and the sufferings that he might have undergone, I deem it appropriate to award a total compensation of 30,000/- towards loss of amenities. Thus, the₹ appellant will be entitled to get an additional amount of ₹12,000/- towards loss of amenities. 6. Though the appellant claimed enhancement of compensation under other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable. Thus, the impugned award of the tribunal is modified as follows: MACA NO. 2306 OF 2019 ..7.. |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in )<br>₹|Amount<br>awarded<br>by the<br>tribunal<br>(in )<br>₹|Modified<br>in appeal<br>(in )<br>₹|Total<br>compensation<br>(in )<br>₹| |---|---|---|---|---|---| |1.|Loss of earnings|180000|18000|30000|48000| |2.|Transportation<br>expenses|5000|1500||1500| |3.|Extra<br>nourishment|5000|1000||1000| |4.|Damage to<br>clothings|5000|1000||1000| |5.|Attendant<br>expenses|5000|2400||2400| |6.|Medical<br>expenses|50000|40900||40900| |7.|Pain and<br>suffering|50000|25000|15000|40000| |8.|Permanent<br>disability|100000|120960|110361|231321| |9.|Loss of amenities|50000|18000|12000|30000| |10.|Loss of earning<br>power|100000|||| |11.|disfiguration|50000|||| |12.|Anticipated<br>medical expenses|50000|||| ||Total|650000|228760|167361|396121| MACA NO. 2306 OF 2019 **==> picture [31 x 8] intentionally omitted <==** Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of ₹1,67,361/- (Rupees one lakh sixty seven thousand three hundred and sixty one only) over and above the compensation awarded by the tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. ## SD/- ## SHOBA ANNAMMA EAPEN ## JUDGE bka/-