Rajagopalan v. The Managing Director, Phoenix Cars India Private Limited and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 MACA NO. 2868 OF 2014 ``` ``` AGAINST THE AWARD DATED 19.08.2013 IN OP(MV) NO.1693/2012 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT:`** ``` RAJAGOPALAN, AGED 46 YEARS S/O.PADMANABHAN NAIR, THAITHOTTATHIL HOUSE, SREENILAYAM, CHEVAYOOR POST, KOZHIKODE DISTRICT. ``` ``` BY ADVS. SRI.R.SUDHISH SMT.M.MANJU ``` ## **`RESPONDENTS:`** ``` 1THE MANAGING DIRECTOR, PHONEIX CARS INDIA PRIVATE LIMITEDDOOR NO.6/570-A, PUTHIYANGADI POST,KOZHIKODE - 673 021. 2SUMES E.R., AGED 27 YEARS, S/O.RADHAKRISHNAN, NEELANGATTU HOUSE, KODAKARAPOST, AZHAKAM, THRISSUR -680 684. 3H.D.F.C. ERGO GENERAL INSURANCE COMPANY LIMITED RAMON HOUSE, HT.PARKH MARG, 169, BACK BAY R TECLAMATION, MUMBAI – 400020. BY ADV SRI.K.B.RAMANAND - SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2868/14 2 ## **`JUDGMENT`** This matter is of the year 2014 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore, admit this Appeal and proceed to dispose it of finally, with the consent of both sides. 2. The appellant was injured in a road accident on 10.07.2012, while the motor cycle he was riding was hit by the offending car, driven in a rash and negligent manner. He sustained grievous injuries and therefore, filed OP(MV) No.919/2009 before the Motor Accidents Claims Tribunal, Kozhikode (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of an amount of Rs.1,50,000/-; but which has been allowed only to an extent of Rs.72,820/-. He assails this amount as being inadequate. 3. Smt.M.Manju – learned counsel for the appellant, pointed out that the primary reason why the compensation has been fixed low by the learned Tribunal is because it has adopted MACA 2868/14 3 the notional income of her client as being only Rs.4,000/- per month, when there is evidence on record to establish that he was earning Rs.12,000/-. She then asserted that the amounts granted by the Tribunal under the heads ‘Extra Nourishment’ and ‘Bystander’s Expenses’, as also for ‘Pain and Suffering’ and ‘Loss of Amenities’, are so inadequate that it defies logic. She, therefore, prayed that the compensation awarded by the Tribunal under these heads be adequately enhanced, reckoning the income of her client to Rs.12,000/- as has been claimed for. 4. – Smt.Dhanya Babu M.A. learned Standing Counsel for the Insurance Company, argued that the accident happened in the year 2012 and that the income claimed by the appellant has not been properly proved. She contended that, therefore, the Tribunal notional income as has committed no error in adopting his Rs.4,000/- and thus prayed that this Appeal be dismissed. 5. I have considered the afore rival contentions on the touchstone of the evidence on record, which I have analyzed very carefully. 6. On the question of notional income adopted by the MACA 2868/14 4 Tribunal in favour of the appellant, I find in his favour because he had contended before the Tribunal that he was working as a ‘Logistic Assistant’ in a Private Company and earning Rs.12,000/per month as salary. Since no evidence was led to substantiate this and since he did not offer testimony in its fortification either, the learned Tribunal was certainly forced to fix his notional income. However, while doing so, it ought to have gone by the postulations in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], wherein the Honourable Supreme Court has declared that, even in the case of a person whose income is otherwise unascertainable, or who was working as a ‘Coolie’, in the year 2012 – when the accident occurred – the minimum figure to be adopted is Rs.8,500/-. That said, going by Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT Online 1012], a more robust view has to be taken in the case of a person who is not merely a ‘Coolie’, but engaged in an avocation which requires specialization or technical knowledge. Since the appellant is conceded to be a ‘Logistic Assistant’, I am certain that an amount of Rs.10,000/- can be taken as his notional MACA 2868/14 5 income, which is a mere Rs.1,500/- more than what has been authorised by Ramachandrappa (supra) in the case of a ‘Coolie’. 7. That being said, the learned Tribunal has awarded compensation under the heads ‘Extra Nourishment’ and ‘Bystander’s Expense’ at the rate of Rs.100/- and Rs.200/respectively per day. I am certain that this requires to be enhanced to Rs.200/- and Rs.400/- per day, going by the standards available in the year 2012. 8. The medical evidence on record, particularly Ext.A2Wound Certificate, establishes that appellant suffered ‘bimalleollar fracture of left ankle and comminuted fracture of fibula right’ (sic). He was hospitalised for 10 days as an in-patient, which is evident from Ext.A8-Discharge Summary; and had to undergo a surgical procedure of ‘ORIF under SAB’ (sic). Obviously, he must have gone through great amount of trauma and pain. I am, therefore, of the view that the compensation awarded by the Tribunal under the head ‘Pain and Suffering’ requires to be enhanced as prayed for; while, that under the head ‘Loss of Amenities’ must be enhanced to Rs.20,000/-. MACA 2868/14 6 9. Finally, on the question whether more months have to be reckoned for the purpose of computation of compensation under the head ‘Loss of Earnings’, I am certain that it should be increased by at least for a period of one month because of the nature of injuries seen above and the normal period that would have been required for uniting the fracture. In the afore circumstances, this Appeal is partly allowed with the following directions: a) The compensation awarded by the Tribunal under the head ‘Loss of Earnings’ is enhanced to Rs.40,000/-, from Rs.12,000/-; reckoning the notional income of the appellant to be Rs.10,000/-, for a period of four months. b) The compensation under the head ‘Extra Nourishment’ is enhanced to Rs.2,000/-, from Rs.1,000/-, reckoning Rs.200/- per day for 10 days of hospitalisation. c) The compensation under the head ‘Bystander’s Expenses’ is enhanced to Rs.4,000/-, from Rs.2,000/- granted by the Tribunal, reckoning Rs.400/- per day for 10 days of hospitalisation. MACA 2868/14 7 d) The compensation under the head ‘Pain and Suffering’ is enhanced to Rs.25,000/-, from Rs.20,000/- as awarded by the Tribunal. e) The compensation under the head ‘Loss of Amenities’ is enhanced to Rs.20,000/-, from Rs.10,000/- as granted by the Tribunal. f) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, the appellant will be at liberty to recover the full compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. Needless to say, while calculating the interest as afore, a period of 189 days – being the delay in filing this Appeal – shall stand excluded. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, MACA 2868/14 8 within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ```