Sajith v. Rajesh Kuppuseeril, Abdul Karim Mookabrkachira & The United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA** **FRIDAY, THE 19[TH] DAY OF JULY 2024 / 28TH ASHADHA, 1946** ## **MACA NO. 2254 OF 2013** **AGAINST THE JUDGMENT DATED 18.02.2013 IN OPMV NO.1567 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM APPELLANT:** ## **SAJITH** **THOTTIKUNATHUTHARA (H),THALAYAZHAM P.O,ULLALA,VAIKOM TALUK PIN 686 501** **BY ADV SRI.P.M.NATESAN** ## **RESPONDENTS:** - **1 RAJESH KUPPUSEERIL,KOTHAVARA P.O, VAIKOM PIN 686 610** - **2 ABDUL KARIM MOOKABRKACHIRA, SOUTH GATE P.O, VAIKOM PIN 686 605** - **3 THE UNITED INDIA INSURANCE CO.LTD KOTTAYAM PIN 686 001** **R3 BY SRI.V.JAYAPRADEEP-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR HEARING ON 1.07.2024, THE COURT ON 19.7.2024 DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2254 OF 2013 2 **M.B.SNEHALATHA, J. ------------------------------------------M.A.C.A.No.2254 OF 2013 ------------------------------------------Dated, this the 19[th] July, 2024** ## **JUDGMENT** Claimant in OP(MV) No.1567/2009 of Motor Accident Claims Tribunal, Kottayam [hereinafter referred to as ‘the Tribunal’] has filed this appeal seeking enhancement of compensation awarded by the Tribunal. The parties shall be referred to as claimant and respondents as shown in the O.P(MV). 2. On 9.10.2008 while the claimant was travelling as a pillion rider of a motor cycle bearing registration No.KL-5/T-881 ridden by R1, the motor cycle dashed against a K.S.R.T.C Bus and the claimant sustained injuries in the said accident. The accident occurred due to the rashness and negligence of R1, who was riding the motor cycle. R2 is the RC owner of the offending motorcycle and R3 is the insurer. 3. By the impugned award, the Tribunal awarded a sum of M.A.C.A.No.2254 OF 2013 3 ₹1,19,310/- as compensation with interest at the rate of 7.5% per annum. The claimant has preferred this appeal contending that the amount awarded is inadequate; that the amount awarded under all heads are on a lower side and it is not a just and reasonable compensation. 4. Heard the learned counsel for both sides. Records perused. 5. The accident is admitted. It is also an undisputed fact that the accident occurred due to the rash and negligent driving of R1, who was the rider of the motor cycle. 6. Now let us see whether the claimant is entitled to enhanced compensation and if so what is the quantum. 7. According to the claimant, he sustained grievous injuries in the accident; that he had to undergo treatment for a long period; that on account of the injuries suffered in the accident, he sustained permanent disability. 8. Exts.A2 to A5 medical records would reveal that the claimant sustained fracture shaft of femur right, type I open fracture both bones of right leg, open knee injury right and he was treated as an inpatient from 9.10.2008 to 3.11.2008 and M.A.C.A.No.2254 OF 2013 4 thereafter he was again readmitted at the Medical College, Kottayam on 17.8.2009 due to malunited fracture right tibia and fibula, open reduction and internal fixation and bone grafting were done on 21.8.2009. The medical records would reveal that he was treated as an inpatient for a period of 35 days. In Ext.X1 disability certificate issued by the Medical Board, his permanent disability has been assessed as 4.05%. 9. The case of the claimant is that he is a painter by occupation and he was earning ₹9,000/- per month. In the absence of any materials to prove the income, the Tribunal fixed his notional income as Rs.4,000/- per month, which according to the learned counsel for the claimant is very low. 10. In _Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],_ the Hon’ble Supreme Court fixed the notional income of a coolie worker in the year 2004 as ₹4,500/- per month. In _Syed Sadiq and Others v. Divisional Manager, United India Insurance Co.Ltd. [(2014) 2 SCC 735]_ the Hon’ble Supreme Court fixed the notional income of a vegetable vendor in the year 2006 at the rate of ₹6,500/- per month. M.A.C.A.No.2254 OF 2013 5 11. In _National Insurance Co. Ltd. v. Pranay Sethi [(2017) 16 SCC 680]_ the Hon’ble Supreme Court has recognized the principle that there would be incremental enhancement in the case of even self-employed individuals in the unorganized sector and with respect to an unspecified job of a coolie considering the increase in cost of living and economic advancement over the years, it can be safely assumed that even a coolie worker would be eligible for incremental addition of ₹500/- in every subsequent year. 12. Bearing in mind the above yardsticks, this Court is of the view that the notional monthly income of the claimant who is a painter by occupation can be fixed at ₹7,000/- per month for the purpose of assessing the compensation payable in the claim petition filed by him. Therefore, under the head loss of earnings, he is entitled to get an amount of ₹42,000/- [7000x6]. 13. Under the head extra nourishment, the Tribunal has awarded a sum of ₹1,000/-, which is found to be very low. Hence, an additional sum of ₹2,000/- is awarded. 14. Under the head transport to hospital, the Tribunal has awarded only ₹2,000/- which is found to be very meager. Hence, M.A.C.A.No.2254 OF 2013 6 an additional sum of ₹2,000/- is awarded under the head transportation charges. 15. Under the head damage to clothing and articles, instead of the claim of ₹1,000/-, the Tribunal has awarded only ₹500/-, which is on a lower side. Accordingly an additional sum of ₹500/- is awarded under the said head. 16. Under the head pain and suffering, the Tribunal has awarded ₹20,000/-, which is on the lower side. Hence, an additional sum of ₹20,000/- is awarded under the head pain and suffering. 17. Ext.XI is the disability certificate, wherein the Medical Board has assessed his whole body disability as 4.05%. Claimant was in the age group of 21-25. The multiplier applicable to him is 18. Accordingly, under the head compensation for loss of income on account of permanent disability an amount of ₹60,480/- is awarded (7000x12x18x4/100). 18. Under the head loss of amenities an additional amount of ₹5,000/- is awarded. 19. The learned counsel for the claimant contended that though he claimed an amount of ₹50,000/- for future M.A.C.A.No.2254 OF 2013 7 treatment, no amount was awarded by the Tribunal under the said head. According to the learned counsel, for removal of internal fixation claimant has to incur huge amount. 20. The medical records would reveal that open reduction and internal fixation was done for the injuries sustained by the claimant. Therefore, there is merit in the contention of the claimant that for removal of nail he has to incur further expenses. Accordingly, an amount of Rs.15,000/- is awarded under the head. 21. Amount awarded by the Tribunal under other heads do not require any interference. In the result, M.A.C.A stands allowed. 22. The compensation payable to the claimant is as indicated in the tabular statement shown herein below: |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the Tribunal|Total amount<br>after<br>enhancement<br>in appeal| |---|---|---|---| |1|Transport to hospital|2000|4000| |2|Extra nourishment|1000|3000| |3|Damage to clothingand articles|500|1,000| |4|Bystander expenses|7000|**7000**| |5|Medical expenses|15250|15250| |6|Loss of earning|24000|42000| M.A.C.A.No.2254 OF 2013 8 ||||[7000x6]| |---|---|---|---| |7|Loss of pain and sufferings|20,000|40,000| |8|Loss of amenities|15,000|20,000| |9|Loss of permanent disability|**34560**|60,480| |10|Future treatment|-------|15,000| ||Total|1,19,310|2,07,730| ||Amount enhanced is ₹88,420/-(₹2,07,730-119310)||| 23. R1 to R3 are jointly and severally liable to pay the award amount as enhanced by this Court with 9% interest per annum from the date of petition till realisation. 24. The 3[rd] respondent/insurer is directed to deposit the award amount with interest in the Bank Account of the claimant within a period of two months from the date of receipt of a copy of this judgment, after deducting the deposit if any already made. Since there was a delay of 159 days in filing the appeal, the claimant will not be entitled to interest on the enhanced amount for the period of 159 days as directed in C.M.Appli.No.2783/2013 in M.A.C.A.No.2254/2013. 25. The claimant shall produce the details of the bank account before the Motor Accident Claims Tribunal, Kottayam within two months from the date of receipt of a certified copy of M.A.C.A.No.2254 OF 2013 9 this judgment. 26. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified in O.M.No.D1/62475/2016 dated 07.11.2019 after deducting the liabilities, if any of the claimant towards tax, balance Court Fee and legal benefit fund. ## **Sd/-** **M.B.SNEHALATHA, JUDGE** ab