Rajeesh v. Raneesh and The Oriental Insurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ``` MACA NO. 2691 OF 2014 ``` ## **`AGAINST THE AWARD IN OPMV 516/2008 OF MOTOR ACCIDENT CLAIMS`** ``` TRIBUNAL, VATAKARA ``` ## **`APPELLANT:`** ``` RAJEESH AGED 27 YEARS, S/O.RARICHAN, RESIDING AT AYYAPANKUZHI HOUSE, P.O. MODAKKALLUR, (VIA) ATHOLY, KOZHIKODE. ``` ``` BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN ``` ## **`RESPONDENTS:`** ``` 1E.RANEESH AGE NOT KNOWN, RESIDING AT EDATHIL HOUSE, FLORICAN HILL ROAD, KOZHIKODE - 673 315. 2THE ORIENTAL INSURANCE COMPANY LIMITED DIVL.OFFICE, II PRAMOD BUILDING, CHEROOTTY ROAD, KOZHIKODE-673 032. ``` ``` BY ADV SRI.N.S.NAJEEB ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2691 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 09[th] day of March, 2023 The appellant is the claimant in O.P.(MV) No.516/2008 on the file of the Motor Accidents Claims Tribunal, Vatakara impugning the award on the ground of inadequacy of compensation. 2. The 1[st] respondent is the owner and 2[nd] respondent is the insurer of the offending vehicle. The driver (2[nd] respondent) in the OP (MV) is not made a party in the appeal. 3. On 21.07.2007, at about 9 PM, while travelling in a jeep, the appellant met with a road traffic accident. KL-11-G8379 – bus, driven by Sri.Rajesh Kumar [2[nd] respondent in OP (MV)] in a rash and negligent manner dashed against the jeep and the appellant sustained serious injuries including fracture lateral wall orbit, fracture nasal bone and fracture (Rt) Zygomatic Arch and diffuse brain odema. He was hospitalised for 85 days, and he suffered disability of 75%. He ``` MACA NO.2691 OF 2014 ``` ``` 3 ``` approached the Tribunal claiming compensation of Rs.10,00,000/-. But the Tribunal awarded only Rs.6,75,864/and hence this appeal. 4. The 2[nd] respondent insurer is nor disputing the accident, injuries or the policy of the offending vehicle. 5. Before the Tribunal, PWs 1 and 2 were examined and Exts.A1 to A12 and C1 were marked. 6. Now let us see whether any interference is warranted in the impugned award. 7. Heard learned counsel Sri.V.S.Chandrasekharan, appearing for the appellant and learned counsel Sri.N.S.Najeeb, appearing for the 2[nd] respondent – Insurer. 8. The appellant would contend that he was a 27 year old welder earning monthly income of Rs.8,000/-, but the Tribunal fixed his notional income @ Rs.3,500/-. It is true that no documents were produced by him to prove his job or ``` MACA NO.2691 OF 2014 ``` ``` 4 ``` income. Learned counsel for the appellant relied on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , to say that even a casual laborer was eligible to get his notional income fixed @ Rs.6,000/- per month in the year 2007. Relying on that decision this Court is also of the view that, in the absence of any documents to prove his monthly income his monthly income can be fixed @ Rs.6,000/-, as the accident was in the year 2007. 9. The Tribunal awarded Rs.25,000/- towards loss of earnings. Learned counsel for the appellant submitted that since he suffered 75% permanent disability, he was not able to do any job for more than a year. Considering the nature of injuries and the period of hospitalisation of 85 days, this Court is of the view that absence of duty for 10 months is justifiable. So, @ Rs.6,000/- per month, his loss of earnings can be taken as Rs.60,000/- for 10 months. He was already paid ``` MACA NO.2691 OF 2014 ``` ``` 5 ``` Rs.25,000/-. So he is eligible to get the balance amount of Rs.35,000/- under the head ’loss of earnings’. 10. Though he was hospitalised for 85 days and he suffered permanent disability of 75%, the learned Tribunal awarded only Rs.17,000/- towards bystander expenses. Considering the nature of injuries, disability suffered, period of hospitalisation, and subsequent rest, this Court is of the view that he might have been in need of a bystander even for a further period of 3 months @ Rs.200 per day. So, this Court is inclined to award Rs.18,000/- more towards ‘bystander expenses’. 11. Towards extra nourishment, the Tribunal awarded only Rs.4,000/-. Ext.A2 wound certificate will show that most of the injuries were on his face and head, and so, he might not have been able to take normal food during the period of hospitalisation or even thereafter for some more period. Considering that fact, this Court is inclined to award ``` MACA NO.2691 OF 2014 ``` ``` 6 ``` Rs.2,000/- more towards extra nourishment. 12. Towards pain and suffering, the Tribunal awarded Rs.20,000/- against his claim of Rs.30,000/-. Considering the nature of injuries suffered, the period of hospitalisation, and also the period of rest after discharge from hospital, this Court is inclined to award Rs.5,000/- more under the head ‘Pain and sufferings’. 13. The appellant suffered permanent disability of 75% as seen from Ext.C1 – disability certificate which was proved through PW2 doctor. The Tribunal took his monthly income @ Rs.3500/- and no addition towards future prospects was given. We have fixed his notional income at Rs.6,000/- per month. Since he had suffered permanent disability of 75%, this Court is inclined to give addition of 40% towards ‘future prospects’ as he was aged below 40, based on the dictum laid down in the decision **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680].** So, his ``` MACA NO.2691 OF 2014 ``` ``` 7 ``` monthly income can be taken as Rs.8,400/- (6,000 + 40%). The multiplier applicable is 17 as he was aged 27. So, the compensation for 75% disability can be assessed as Rs.12,85,200/- (8,400 x 12 x 17 x 75/100). Since he was already paid Rs.5,67,000 under the head disability, he is entitled to get the balance amount of Rs.7,18,200/- as enhanced ‘compensation for disability’. 14. The compensation awarded under other heads seems to be reasonable and so it needs no interference. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in the<br>appeal|Amounts<br>deducted in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>earnings|Rs.25,000/-|Rs.60,000/-|---|Rs.35,000/-| |By stander<br>expenses|Rs.17,000/-|Rs.35,000/-|---|Rs.18,000/-| |Extra<br>nourishment|Rs.4,000/-|Rs.6,000/-|----|Rs.2,000/-| |Compensation<br>for disability|Rs.5,67,000/-|Rs.12,85,200/-|---|Rs.7,18,200/-| ``` MACA NO.2691 OF 2014 ``` ``` 8 ``` |Pain and<br>Sufferings|Rs.20,000/-|Rs.25,000/-|----|Rs.5,000/-| |---|---|---|---|---| |Total||||**Rs.7,78,200/-**| 15. The appellant is entitled to get enhanced compensation of Rs.7,78,200/- ( 35,000 + 18,000 + 2,000 + 7,18,200 + 5,000 ). 16. The finding of the learned Tribunal that the 2[nd] respondent - Insurer is liable to compensate the injured is not under challenge, so the 2[nd] respondent – Insurer is directed to deposit the enhanced compensation of Rs.7,78,200/- (Rupees Seven Lakh Seventy Eight Thousand and Two Hundred only) in the bank account of the appellant with 7.5% interest per annum from the date of petition till the date of deposit (excluding 657 days of delay in filing the appeal), within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated ``` MACA NO.2691 OF 2014 ``` ``` 9 ``` 06.09.2019 and clarified in O.M. No.D1/62475/2016 dated 07.11.2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. Accordingly, the appeal is allowed. No order as to costs. Sd/- **SOPHY THOMAS, JUDGE** ded/09.03.2023