Rajan @ Antony Raj P. v. Raj Kumar Y., Satheesh Kumar, The New India Assurance Co. Ltd., United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938** ## **MACA.No. 1607 of 2012 () -------------------------** ## **AGAINST THE AWARD IN OPMV 677/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,NEYYATTINKARA DATED 15-06-2009** ## **APPELLANT(S)/PETITONER: ----------------------** **RAJAN @ ANTONY RAJ P.** **S/O.SONU @ PAKKIRI SWAMY, ADHARSH BHAVAN, KAZHIVOOR, KAZHIVOOR P.O., KANJIRAMKULAM-695 526** ## **BY ADV. SRI.AJITH KRISHNAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. RAJ KUMAR Y.** - **S/O.YOHANNAN, NO.5/324, MOUNT CARMAL, VAZHIMUKKU, KARIMKULAM P.O-695 526** **2. SATHEESH KUMAR** - **S/O.SUKUMARAN NADAR, KOVILUVILA VEEDU, NEAR P.K.S.H.S.STATION, KANJIRAMKULAM P.O-695 526** **3. THE NEW INDIA ASSURANCE CO.LTD.,** - **DIVISIONAL OFFICE, KOTTARATHIL BUILDINGS, PALAYAM, THIRUVANANTHAPURAM- 695 033** **4. UNITED INDIA INSURANCE CO.LTD. CHANDAR PLAZA, 1ST FLOOR NO.48, AROOT ROAD, SALIGRAMAM, CHENNAI-600093.** **R3 BY ADV. SMT.P.K.SANTHAMMA R4 BY ADV. SRI.A.R.GEORGE R BY SRI.JOHN JOSEPH VETTIKAD R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **.................................................... M.A.C.A. NO 1607 of 2012 ..................................................... Dated this the 25[th] day of July, 2016** ## **JUDGMENT** ## **C.T. RAVIKUMAR** , J. The injured applicant comes up in appeal feeling aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Neyyattinkara as per judgment and award dated 15.6.2009 in OP(MV) 677/2005. He filed the claim petition under Sec.166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 25.12.2004. The Tribunal granted a total compensation of 4,66,912/- (Rupees Four Lakhs₹ sixty six thousand nine hundred and twelve only) with interest @7.5% per annum from the date of petition till realization. 2. We have heard the learned counsel appearing for the appellant and also the learned counsel appearing for the third respondent Insurance Company. 3. There is no dispute regarding the accident, the cause of the accident as the negligence from the part of the second respondent and the insurance coverage of the offending vehicle bearing registration No.KL 01 AD 9135. In the said circumstances, 2 ## M.A.C.A. NO 1607 of 2012 the sole question to be decided in this appeal is whether or not the appellant is entitled to get enhanced compensation. 4. To buttress the contention that he is entitled to get enhanced compensation, the appellant mainly raised the contention that the Tribunal has erroneously fixed the monthly income as 3,000/- ignoring the specific averments in the claim₹ petition that he was an extra actor in films and he was earning ₹15,000/- per month. The further contention is that the Tribunal fixed compensation under the heads 'transportation expenses', 'loss or earnings', 'expenses for extra nourishment and bystander' and 'compensation for pain and sufferings', so meagerly and it is the erroneous estimation of compensation under such heads that resulted in denial of just compensation. 5. The learned counsel appearing for the third respondent submitted that the Tribunal cannot be found fault with in fixing the monthly income notionally and a careful perusal of evidence on record itself would reveal that the appellant himself had no consistent case with respect to his income. Originally he claimed that his income was 6,000/- per month and later, got it amended₹ as 15,000/- . It is further contended that despite taking up such₹ 3 ## M.A.C.A. NO 1607 of 2012 contentions he had failed to establish the contention regrading the monthly income and occupation. In such circumstances, the Tribunal is justified in taking the monthly income as 3,000/-, it is₹ contended. The learned counsel for the third respondent further contended that a bare perusal of the impugned judgment would reveal that the Tribunal has granted adequate compensation under all heads. In short, it is submitted that no appellate interference is called for. 6. It is true that the appellant had averred in the claim petition that he was an extra film actor and a member of South Indian Artist Association, Madras. Though he claimed 6,000/- as₹ his monthly income originally he got it amended to 15,000/-.₹ But, it is a fact that the appellant had not adduced any evidence even to establish that he was getting 6,000/- as monthly income.₹ In the said circumstances, the Tribunal cannot be said to have erred in fixing the monthly income notionally, but then, the question is whether the Tribunal is justified in taking the monthly income as 3,000/-. In the contextual situation, it is relevant to₹ refer to the decision of Apex Court in **(Ramachandrappa vs. The Manager, Royal Sundaram Alliance Insurance** 4 M.A.C.A. NO 1607 of 2012 **Company Ltd** reported in **2011 (13) SCC 236.** In that case in respect of a coolie who met with an accident in the year 2004, the Hon’ble Appex Court fixed the monthly income as Rs.4,500/notionally for calculation purpose. The accident in this case also occurred in the year 2004, to be precise, on 25.12.2004. The appellant was then aged 35 years. In the said circumstances, we are inclined to fix the monthly income as Rs.4,500/-. The Tribunal took the period of loss of earnings as five months. We do not think that the said fixation invites any interference. Hence, calculating the amount payable towards compensation for loss of earnings by taking his monthly income as Rs.4,500/- the appellant would be entitled to get an amount of Rs.7,500/- additionally. It is granted. Towards transportation, the Tribunal granted an amount of Rs.2,000/-. The evidence on record would reveal that even after the initial admission and discharge, the appellant had three more reviews. In such circumstances, we are of the view that an amount of Rs.4,000/- has to be granted additionally towards transportation expenses, it is granted. Towards bystander expenses, the Tribunal granted an amount of Rs.4,500/evidently, at the rate of Rs.100/- per day as he had been 5 ## M.A.C.A. NO 1607 of 2012 impatient only for a period of forty five days. Taking note of the year of the accident, we are of the view that the rate ought to have been Rs.150/- per day and in that view of the matter, the appellant is entitled to get an amount of Rs.2,250/- more under that head. Towards pain and sufferings, the Tribunal granted an amount of Rs.40,000/-. Ext.A6 is the wound certificate and Ext.A9 is the discharge card. They would go to show that he had avulsion of GERDY'S tubercle right; punctured wound right shin; type III B compound fracture 3[rd] metatarsal right foot and type III B compound fracture P1 of 2[nd] toe right foot with doubtful vascularity to the region. Ext.A9 would also reveal that his right leg was amputated above knee. Though no disability certificate was produced by the appellant, taking note of the fact which was recorded in Ext.A9 that his right leg was amputated above knee, the Tribunal took permanent disability as 60%. Taking note of all such circumstances, we are of the view that the appellant is entitled to get Rs.10,000/- more towards compensation for pain and sufferings. Since we have already refixed the monthly income of appellant as Rs.4,500/-, a reassessment of compensation for permanent disability has to be made. Based on such calculation 6 ## M.A.C.A. NO 1607 of 2012 the appellant would be entitled to get an amount of Rs.1,72,800/(Rupees One lakh seventy two thousand eight hundred only) -- (4500 x 12 x 16 x 60 3,45,600/-) additionally. Based on the 100 reassessment and enhancement made as above, the appellant is entitled to get a total enhanced amount of Rs.1,96,550/- (Rupees One lakh ninety six thousand five hundred and fifty only) which is rounded off to Rs.1,96,600/-(Rupees One lakh ninety six thousand six hundred only). It is granted. The said enhanced amount will carry interest @ 8% per annum from the date of petition till realization. The third respondent is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a copy of this judgment. No order as to costs. ## **C.T. RAVIKUMAR, JUDGE** ## **K.P. JYOTHINDRANATH, JUDGE** _sks/27.7.2016_ 7 M.A.C.A. NO 1607 of 2012