Rejeesh S/o Sudan v. Dileep Kumar and The National Insurance Company Limited

``` MACA NO. 953 OF 2014 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` THURSDAY, THE 4 [ TH ] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` ``` MACA NO. 953 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 03.07.2012 IN OPMV NO.988 OF 2006 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM ``` ## **`APPELLANT/PETITIONER:`** ``` REJEESH S/O.SUDAN, VAZHUTHUKATTIL HOUSE, VALLAKOM BHAGOM, PADINJAREKARA, NADUVILE VILLAGE, VAIKOM TALUK. BY ADV SRI.P.M.NATESAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 DILEEP KUMAR S/O.CHANDRASEKHARA PANICKER, PERAYIL HOUSE, PERUMCHERY JUNCTION, CHEMMANATHUKARA, VAIKOM, PIN-686606.`** - **`2 THE NATIONAL INSURANCE COMPANY LIMITED ERNAKULAM BRANCH, REPRESENTED BY ITS BRANCH MANAGER, PIN-682011.`** ``` BY ADVS. SRI.E.M.MURUGAN SMT.RAJI T.BHASKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 953 OF 2014 ``` ``` 2 ``` ``` J U D G M E N T ``` ``` This appeal is at the instance of the petitioner in OP(MV) No.988 of 2006 on the file of Motor Accidents Claims Tribunal, Kottayam, challenging the quantum of compensation awarded by the Tribunal. ``` ``` 2. The appellant who was a 28 year old man, met ``` ``` with a road traffic accident, while he was riding a scooter. He was knocked down by a maruti van bearing registration No.KL-5S-1167 driven by the 1st ``` ``` respondent in a rash and negligent manner. He sustained injuries including fracture of shaft of ``` ``` femur right and fracture of clavicle right. He was admitted and treated in hospital for 16 days. He suffered permanent disability also due to the ``` ``` injuries suffered in that accident. Though he approached the Tribunal claiming compensation of Rs.3 lakh, the Tribunal awarded only Rs.54,238/-, and hence this appeal. ``` ``` MACA NO. 953 OF 2014 ``` ``` 3 ``` `3. The 1st respondent is the owner cum driver of` ``` the offending maruti van, and the 2nd respondent is its insurer. The 2nd respondent admitted the ``` ``` policy. ``` `4. In the appeal respondents 1 and 2 entered` ``` appearance, and the 2nd respondent/insurer admitted policy. ``` ``` 5. Heard learned counsel for the appellant and learned counsel for the 2nd respondent/insurer. ``` `6. The main ground urged by the appellant is` `that, though he was earning monthly income of` ``` Rs.7,000/-, learned Tribunal fixed his notional income only @ Rs.3,000/- per month. He was said to ``` ``` be a computer photo editor, but no documents were produced to prove his job or income. According to the appellant, he was eligible to get his notional income fixed at least @ Rs.5,000/- relying on the decision ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance ``` ``` MACA NO. 953 OF 2014 ``` ``` 4 ``` ## _**`Insurance Company Limited [AIR 2011 SC 2951].`**_ `7. Learned Tribunal assessed loss of earning for` ``` three months, considering the nature of injuries suffered by the appellant. He is entitled to get Rs.15,000/-, for three months at the rate of ``` ``` Rs.5,000/- per month. Deducting Rs.6,000/- already awarded, he is entitled to get the balance amount of Rs.9,000/-, under the head loss of earning. ``` `8. Towards transportation to the hospital, the` ``` Tribunal awarded only Rs.500/-. He was treated at CHC, Vaikom, and thereafter at Medical College Hospital, Kottayam. So towards transportation expenses, this Court is inclined to award Rs.1,500/- more, apart from Rs.500/- awarded by the Tribunal. ``` `9. Towards extra nourishment, learned Tribunal` ``` awarded only Rs.500/-. He was hospitalized for 16 days. So this Court is inclined to award Rs.1,600/-, towards extra nourishment, after deducting Rs.500/- ``` ``` MACA NO. 953 OF 2014 ``` ``` 5 ``` ``` already awarded, he is entitled to get the balance amount of Rs.1,100/-. ``` ``` 10. Towards bystander expenses, the Tribunal awarded only Rs.5,00/-, though the appellant was hospitalized for 16 days. Learned counsel for the appellant would submit that, even after discharge he was in need of a bystander, as he was taking rest at home. So apart from the amount awarded by the Tribunal, this Court is inclined to award Rs.2,500/- more, towards bystander expenses. ``` ``` 11. Towards pain and suffering, the Tribunal awarded Rs.15,000/- against his claim of Rs.35,000/-. He had suffered fracture of shaft of femur right and fracture of clavicle right, and he was hospitalized for 16 days. So this Court is inclined to award Rs.5,000/- more, towards pain and suffering. ``` `12. Towards permanent disability, the Tribunal` `awarded Rs.24,480/- taking his disability as 4%.` ``` MACA NO. 953 OF 2014 ``` ``` 6 ``` ``` Ext.X1 disability certificate issued by the medical board will show that he had suffered 5.6% permanent disability. Learned Tribunal, on the reason that none ``` ``` of the Doctors in that medical board was examined, reduced the percentage of disability, and accepted the disability to the extent of 4% only. Since Ext.X1 disability certificate was issued by a competent medical board, this Court finds no justification for reducing the percentage of disability to 4%. This Court has fixed his notional income @ Rs.5,000/-. The ``` ``` multiplier applicable is 17, as he was aged 28. So for 5.6% disability he is eligible to get Rs.57,120/- [5000x12x17x5.6%]. After deducting Rs.24,480/- ``` ``` awarded by the Tribunal, he is entitled to get the balance Rs.32,640/-. ``` ``` 13. Learned Tribunal awarded Rs.5,000/- as compensation for loss of future earnings. The ``` ``` compensation for permanent disability will take in ``` ``` MACA NO. 953 OF 2014 ``` ``` 7 ``` ``` the loss of future earnings also, and so Rs.5,000/- ``` ``` awarded by the Tribunal, for loss of future earnings ``` ``` is liable to be deducted. ``` `14. Towards loss of amenities, no amount was seen` ``` awarded by the Tribunal. Ext.X1 disability ``` ``` certificate issued by the medical board will show ``` ``` that, the appellant had suffered 5.6% permanent ``` ``` disability. He was a 28 year old man. So the ``` ``` disability might have affected his amenities in life to certain extent. So this Court is inclined to award Rs.10,000/-, towards loss of amenities. ``` `15. The compensation awarded under all other` ``` heads seems to be reasonable, and hence it needs no modification. ``` `16. The enhanced compensation awarded in this` `appeal is stated in the table below:-` ``` MACA NO. 953 OF 2014 ``` ``` 8 ``` |Head of claim|Amount<br>awarded<br>by the<br>Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted<br>in appeal|Di�erence to be<br>drawn as enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>earnings|`6,000/-`|`15,000/-`<br>`[5,000x3]`|`—`|`9,000/-`| |Transportation<br>expenses|`500/-`|`2,000/-`|`—`|`1,500/-`| |Extra<br>nourishment|`5,00/-`|`1,600/-`|`-`|`1,100/-`| |Bystander<br>expenses|`5,00/-`|`3,000/-`|`-`|`2,500/-`| |Pain and<br>su�ering|`15,000/-`|`20,000/-`|`-`|`5,000/-`| |Compensation<br>for continuing<br>permanent<br>disability|`24,480/`<br>`-`|<br>`57,120/-`<br>`[5,000x`<br>`12x17x`<br>`5.6%]`|`-`|`32,640/-`| |Loss future<br>earnings|`5,000/-`||`5,000/-`|| |Loss of<br>amenities||`10,000/-`||`10,000/-`| |TOTAL<br>`5,000/- 61,740/-`||||| ``` MACA NO. 953 OF 2014 ``` ``` 9 ``` ``` 17. So the appellant is entitled to get enhanced compensation of Rs.56,740/- [(9,000 + 1,500 + 1,100 + 2,500 + 5,000 + 32,640 + 10,000)- 5000] towards enhanced compensation. ``` ``` 18. The 2 nd respondent/insurer is directed to ``` ``` deposit the enhanced compensation with 7.5% interest per annum, from the date of petition till the date of deposit (excluding 541 days of delay in filing the appeal) before the Motor Accident Claims Tribunal concerned within a period of two months from the date ``` ``` of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund. ``` ``` The appeal is allowed to the extent as above, and no order is made as to costs. ``` ``` Sd/- SOPHY THOMAS, JUDGE ``` ``` ska ```