## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.NAGARESH**
**MONDAY, THE 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942**
**MACA.No.177 OF 2017(F)**
**AGAINST THE AWARD IN OP(MV)No.217/2014 DATED 24-05-2016 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA.**
## **APPELLANT/PETITIONER:**
**REGI @ REGIMON.T.V, AGED 47 YEARS, S/O. VARGHESE, THEKKEDATH HOUSE, SOUTH MARADY KARA, MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.**
**BY ADVS. SRI.DILEEP VARGHESE SRI.K.K.KURUVILLA SMT.TESMY VARGHESE**
## **RESPONDENTS/RESPONDENTS:**
**1 ANITHA BINO, W/O. BINO, KUNNATHU KOCHUKUDIYIL HOUSE, MUDAVOOR P.O, MUVATTUPUZHA-686 669 2 SHAJU A.K, S/O. KURIAKOSE, AIKARAKANDATHIL HOUSE, SOUTH MARADY KARA, SOUTH MARADY P.O-686 673 3 THE NEW INDIA INSURANCE CO.LTD, KAVIKUNNEL CHAMBERS, MUVATTUPUZHA-686 661**
## **R3 BY ADV. SRI.M.M.IRSHAD MOOPPAN**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
~ ~ ~ ~ ~ ~ ~ ~ ~
_**Dated this the 6[th] day of July, 2020**_
The petitioner in OP(MV) No.217/2014 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 24.05.2016.
2. In his petition under Section 166 of the Motor Vehicles Act, 1988, the appellant stated that he was walking through the side of Piravom – Muvattupuzha public road on 23.08.2013. When he reached near Soolatmthazham, a bus bearing registration No.KL-33/1649 driven by the 2[nd] respondent at an excessive speed came and hit him. The appellant suffered serious injuries due to the accident. The 1[st] respondent is the owner of the offending bus and 3[rd] respondent is the insurer. The appellant stated that
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respondents 1 to 3 are jointly and severally liable to pay ₹10 lakhs as compensation to the appellant.
3. Respondents 1 and 2 filed a joint written statement. The ownership of the vehicle was admitted. The negligence of the driver was denied. The appellant was crossing the road without obeying traffic rules, which resulted in the accident. The accident was solely due to the negligence of the appellant, contended respondents 1 and 2.
4. The 3[rd] respondent-insurer filed written statement admitting insurance coverage. The 3[rd] respondent also denied negligence on the part of the 2[nd] respondent-Driver and blamed the appellant for the accident. The insurer disputed the age, occupation and monthly income of the appellant. The compensation claimed is excessive, stated the 3[rd] respondent-insurer.
5. The appellant produced Exts.A1 to A12 documents. The respondents produced Ext.B1 policy. Disability Certificate issued from Medical College Hospital,
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Kotayam was marked as Court Ext.C1. PW1 was examined on behalf of the appellant.
6. The Tribunal, on appreciation of evidence, awarded a compensation of ₹6,60,000/- to the appellant under the following heads:-
|**Head**|**Amount**<br>**claimed**|**Amount**<br>**awarded**|**Remarks**|
|---|---|---|---|
|Loss of earnings|`1,20,000/-|`33,000/-||
|Pain and sufferings|`1,00,000/-|`50,000/-||
|Loss of amenities|`60,000/-|`40,000/-||
|Bystander expenses|`10,000/-|`5,000/-||
|Extra nourishment charges|`20,000/-|`3,750/-||
|Transportation charges|`8,000/-|`2,500/-||
|Medical treatment charges|`5,00,000/-|`3,79,862/-||
|Compensation for loss of<br>permanent disability|`4,00,000/-|`1,45,860/-||
|**Total**||`**6,59,972**||
The Tribunal also awarded 9% interest per annum from the date of the OP(MV).
7. The learned counsel for the appellant argued that the appellant was a businessman and an active partner of a
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brick manufacturing unit. The appellant had ₹10,000/monthly income from the business. The Managing Partner of the industrial unit mounted the witness box as PW1 and gave evidence proving the monthly income of the appellant. However, the Tribunal assessed the income as ₹5,500/- per month. Such low fixation of notional income of the appellant has seriously impacted the compensation amount. There was no reason for the Tribunal to disbelieve PW1, contended the learned counsel for the appellant.
8. The learned counsel for the appellant further pointed out that the appellant was hospitalised for a period of 25 days consequent to the surgery, from 23.08.2013 to 17.09.2013. Multiple fractures resulted from the accident and surgery had to be conducted on the appellant. Taking into account all these facts, the compensation amount assessed by the Tribunal under various heads, is too low.
9. The learned counsel for the appellant especially drew the attention of this Court to the fact that the
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transportation expenses, consequent to the accident of the appellant was huge, but the Tribunal granted only an amount of ₹2,500/-. Similarly, the appellant was subjected to implant on the left forearm following the accident. The implant has not been removed so far. The Ortho Surgeon has issued Ext.A1 medical certificate on 10.12.2019 to the effect that it is time to remove the implant, the cost of which will be ₹35,000/-. The appellant is entitled to the said amount because the implantation as well as its removal was necessitated as a result of the accident.
10. The learned Standing Counsel for the 3[rd] respondent-insurer argued that the appellant did not produce any documentary evidence to prove his monthly income. Though the Managing Partner of the alleged industry was examined as PW1, even the said witness did not produce any Profit and Loss Account or tax returns in respect of the industrial unit. In the absence of any documentary evidence, the Tribunal fixed the notional
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income of the appellant as ₹5,500/-. The Tribunal took the entire 17% physical disability endorsed by the Medical Board, towards functional disability of the appellant. Therefore, the appellant is not entitled to any additional amount.
11. As regards Ext.A1 Certificate relating to expenditure of ₹35,000/- for removal of implant, the learned counsel for the 3[rd] respondent argued that the Doctor who issued Ext.A1 is not examined and the amount of ₹35,000/stated therein is very much on a higher side. For removal of similar implant from the body of a human being, so much amount is not required towards surgical expenses, contended the learned Standing Counsel for the 3[rd] respondent.
12. I have heard the learned counsel for the appellant and learned Standing Counsel for the 3[rd] respondent.
13. PW1, who is the Managing Partner of the industry in which the appellant was a partner, deposed before the
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Tribunal that the appellant was having an income of ₹10,000/-. The Tribunal disbelieved the said income claimed since the claim was not supported by any documentary evidence whatsoever. The Tribunal fixed the notional income as ₹5,500/-. In _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ , the Hon'ble Apex Court held that a selfemployed person should be treated as having a monthly income of ₹6,500/- in the year 2008. Allowing moderate increase in such income from year to year, a self-employed person should be treated as earning at least ₹9,000/- per month in the year 2013. In the present case, though the income claimed by the appellant was not accepted, the nature of self-employment of the appellant is not in dispute. Therefore, this Court finds that the notional income of the appellant should be fixed as ₹9,000/- per month. Consequently, the compensation for permanent disability should be revised to ₹2,38,680/- (₹9,000 x 12 x 13 x 17/100). The Tribunal has already awarded ₹1,45,860/-
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under this head. Therefore, it is declared that the appellant will be entitled to an additional compensation of **₹92,820/-** (₹2,38,680 – ₹1,45,860 already awarded by the Tribunal) under this head.
14. The Tribunal has granted ₹5,000/- towards bystanders expenses. The appellant was hospitalised for a period of 25 days in the year 2013. Taking ₹250/- as daily bystander expense, the appellant will be entitled to ₹6,250/(₹250 x 25 days). Accordingly, there will be an additional compensation of **₹1,250/-** under this head. Similarly, towards extra nourishment, the appellant should be compensated at the rate of ₹200/- per day. The appellant would therefore be entitled to a compensation for extra nourishment of ₹5,000/-. The Tribunal has granted only ₹3,750/- under this head. The appellant will therefore be entitled to an additional compensation of **₹1,250/-** (₹5,000 – ₹3,750 already awarded by the Tribunal) towards additional compensation for extra nourishment.
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15. As regards transportation charges, it is to be noted that the accident occurred at Muvattupuzha. After the accident, the appellant was taken to Medical Mission Hospital, Kolenchery. From there, the appellant had to be taken to Medical Trust Hospital, Ernakulam for specialised treatment. The Tribunal has granted only ₹2,500/- towards transportation charges. On a moderate estimate, the appellant has expended ₹5,000/- towards transportation for medical treatment. In the circumstances, it is declared that the appellant will be entitled to ₹5,000/- as compensation towards transportation charges and the additional compensation under this head to which the appellant will be entitled to, will be **₹2,500/-** (₹5,000 - ₹2,500 already awarded by the Tribunal).
16. As regards surgery charges for removal of implant, the requirement of removal of implant is not under dispute. What is under dispute is the amount of ₹35,000/stated to be approximate cost for removal of implant. In the
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absence of any further materials in this regard, this Court finds that an award of ₹10,000/- would sufficiently meet the requirement of the appellant. It is therefore, declared that the appellant will be entitled to an additional compensation of **₹10,000/-** towards medical expenses for removal of implant.
17. Thus, the appellant will be entitled to a total additional compensation of **₹1,07,820/-** under the following
heads:-
|(i)|Additional compensation towards permanent|₹92,820/-|
|---|---|---|
||disability||
|(ii)|Additional compensation towards bystander's|₹1,250/-|
||expenses||
|(iii)|Additional compensation towards extra|₹1,250/-|
||nourishment||
|(iv)|Additional compensation towards|₹2,500/-|
||transportation expenses||
|(v)|Additional compensation towards medical|₹10,000/-|
||expenses for removal of implant||
||**Total**|**₹1,07,820/-**|
|||**=========**|
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The 3[rd] respondent-insurer is directed to deposit the said sum of **₹1,07,820/-** along with interest at the rate of ₹9% per annum from the date of the OP(MV), within a period of 30 days.
MACA is allowed in part.
Sd/-
**N. NAGARESH, JUDGE**
aks/03/07/2020
