Prasanth K.N. v. GOPAN & Oriental Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 ``` ``` MACA NO. 2924 OF 2014 ``` ``` AGAINST THE AWARD IN OPMV 1296/2007 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM ``` ## `APPELLANT/PETITIONER:` ``` PRASANTH K.N. S/O.NARAYANAN NAIR, KOODATHINAL HOUSE, KIDANGOOR VILLAGE, CHEMPILAVU PO, MEENACHIL TALUK ``` ``` BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE ``` ## `RESPONDENT/RESPONDENT:` ``` 1GOPAN S/O.NARAYANAN,PARATHANATHU HOUSE, CHEMPILAVU PO, CHEMPILAVU KARA, KIDANGOOR VILLAGE, 686 584. ``` ``` 2THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, KOTTAYAM 686 001. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2924 OF 2014 ``` ``` 2 ``` ## `JUDGMENT` ``` This appeal, filed by the claimant in OP(MV) No.1296 of 2007 on the file of the Motor ``` ``` Accidents Claims Tribunal, Kottayam (“Tribunal” for short), seeks that the compensation awarded by it be enhanced. ``` ``` 2.Sri.Sreenath Vijayaraghavan – learned ``` ``` counsel appearing for the appellant, asserted ``` ``` that the compensation awarded by the Tribunal is exiguous and that this is primarily because it has incorrectly taken his client’s notional income to be Rs.3,450/-, though he had claimed Rs.6,000/-. He argued that, even going by ``` ``` Ramachandrappa v. Manager, Royal Sundaram ``` ``` Alliance Insurance Company Limited. [(2011) 13 ``` ``` SCC 236], the standardised figure for a person with unascertainable income in the year 2006, ``` ``` MACA NO. 2924 OF 2014 ``` ``` 3 ``` ``` ought to have been taken as Rs.5,500/- and that to such extent, the Tribunal has erred. He then pointed out that, since his client had suffered fracture both in his forearm and in his leg, the compensation for “Pain and Suffering” of Rs.20,000/- granted is too low; while he ought to have been granted more under the head “Bystander’s Expenses”, since the Tribunal itself has found that he was mostly bed ridden for three months. He thus prayed that this appeal be allowed, revising the “Loss of Earnings” also, taking note of the claim of Rs.6,000/- as the monthly income of his client. ``` ``` 3.Smt.Latha Susan Cherian- learned counsel ``` ``` appearing for the Insurance Company, on the other hand, argued that the Tribunal has not erred in any manner in computing the compensation; and thus prayed that this appeal be dismissed. ``` ``` MACA NO. 2924 OF 2014 ``` ``` 4 ``` ``` 4.I have examined the rival contentions of the parties as afore and have tested them on the worth of the evidence on record – copies of which have been made available to this Court by the learned counsel for the parties across the Bar, with the express consent that they can be acted upon, without dispute. ``` ``` 5.I must say upfront that I find ``` ``` substantial force in the submissions of Sri.Sreenath Vijayaraghavan – learned counsel for the appellant, that the notional income of his client has been taken incorrectly by the Tribunal. This is because, even though the Tribunal could not have accepted Rs.6,000/- per month as being the wages of the appellant, for want of corroboration, it certainly ought to have gone by the standardisation postulated by the Hon’ble Supreme Court in Ramachandrappa (supra) ``` ``` MACA NO. 2924 OF 2014 ``` ``` 5 ``` ``` and to have taken it as being Rs.5,500/- per month. There is no dispute as regards the disability suffered by the petitioner, since it is supported by Ext.C1 – Disability Certificate; and therefore, the only remaining issue is whether he is entitled to more under the head “Bystander’s Expenses”, as also “Pain and Suffering”. ``` ``` 6.The medical evidence on record, ``` ``` particularly Ext.A5 – Discharge Summary; Ext.A4 – Wound Certificate and Ext.A8 – Medical Certificate would indicate that he had suffered fracture of both the bones in the right forearm and had to undergo an open reduction and internal fixation with plate and screw. The Tribunal has also found that even several months later, the fracture had not ``` ``` MACA NO. 2924 OF 2014 ``` ``` 6 ``` ``` been united and that therefore, the appellant had to suffer continuous treatment and prolonged trauma. It is also stated before me that, on account of the accident, the appellant had sustained injuries on his leg also and therefore, that he was bedridden, though this has not been reflected ``` ``` specifically by the Tribunal. ``` ``` 7.Taking note of the totality of the ``` ``` afore circumstances, I am of the view that the ``` ``` compensation under the head “Pain and Suffering” is diserving of enhancement by a small margin, which I propose to be Rs.35,000/-. However, as regards “Bystander’s Expenses”, I do not think that any ``` ``` modification is necessary because the appellant, admittedly, was in hospital only ``` ``` MACA NO. 2924 OF 2014 ``` ``` 7 ``` ``` for seven days. ``` ``` In the afore circumstances, this appeal is ``` ``` partly allowed in the following manner: ``` ``` a)The compensation for permanent ``` ``` disability is revised to Rs.56,100/-, instead ``` ``` of Rs.35,100/-, taking the notional income of the appellant to be Rs.5,500/- per month and adopting the proper multiplier ‘17’ (in ``` ``` modification of 18) and applying the ``` ``` percentile of 5 towards disability. ``` ``` b)Axiomatically, the compensation under the head “Loss of Earnings” is revised to ``` ``` Rs.22,000/-, instead of Rs.13,000/- awarded by the Tribunal, taking the notional income of the appellant to be Rs.5,500/- as said above. ``` ``` c) The compensation under the head “Pain and Sufferings” is enhanced to Rs.35,000/-, ``` ``` MACA NO. 2924 OF 2014 ``` ``` 8 ``` ``` instead of Rs.20,000/-. ``` ``` In all other heads, the compensation ``` ``` granted by the Tribunal will remain unaltered; though the liberty to the ``` ``` petitioner to seek expenses for future treatment, as the case may arise in future, is left open. ``` ``` Resultantly, the appellant will be entitled ``` ``` to recover the amount of compensation, as ``` ``` enhanced by this Court, from the Insurance Company, along with interest at the rate of ``` ``` 7.5% per annum as granted by the Tribunal, from ``` ``` the date of claim until the date of ``` ``` realisation. ``` ``` However, while calculating the interest, the period of 860 days - being the delay caused by the appellant in filing this appeal - shall stand excluded. ``` ``` MACA NO. 2924 OF 2014 ``` ``` 9 ``` ``` After I dictated this part of the judgment, Smt.Latha Susan Cherian, submitted that even going by the Award of the Tribunal, her client has been mulcted with the responsibility to pay interest only from 29.10.2011, since they were brought into the party array only on that date. This conclusion of the Tribunal stands unaltered and obviously, the interest will be calculated in such manner. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN JUDGE ``` ``` SAS ```