Salimkumar v. Divisional Manager, National Insurance Co. Ltd., Kottayam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` MACA NO. 144 OF 2016 ``` ``` AGAINST THE AWARD DATED 07.08.2015 IN O.P(M.V) NO.1304 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM ``` ``` APPELLANT/PETITIONER: ``` ``` SALIMKUMAR, S/O BHASKARAN, AGED 47 YEARS, RESIDING AT ARYAPALLY HOUSE, (KOKKAPPALLIYIL), VELAKULAM BHAGAM, MANNAANAM P.O, ATHIRAMPUZHA, KOTTAYAM ``` ``` BY ADV SRI.P.M.JOSHI ``` ## **`RESPONDENT/RESPONDENT NO.2:`** ``` THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD, KOTTAYAM-686 001 ``` ``` BY ADVS. SRI.LAL K.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.144 of 2016 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 18[th] day of March, 2024** The appeal on hand is filed challenging an award passed by Motor Accidents Claims Tribunal, Kottayam (for short ‘the Tribunal’) on 07.08.2015 in O.P(M.V) No.1304/2013. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 and 2 in accordance with their status in the Original Petition. 3. The appellant is the petitioner who sustained injuries in a motor accident occurred at about 11.45 hours on 22.03.2013 at Athirampuzha market junction situated in Mannanam-Athirampuzha public road. Petitioner was walking through the footpath of the road and was knocked down by a motorcycle bearing ``` 3 ``` ``` M.A.C.A.No.144 of 2016 ``` registration No.KL-5/AB 1530 ridden by its rider in a rash and negligent manner. He himself was the registered owner of the said vehicle. Arraying the rider cum owner as the 1[st] respondent and the insurer as the 2[nd] respondent, the Original petition on hand is filed seeking for a total sum of `2,00,000/- as compensation. 4. Notice was issued to all respondents from the Tribunal and served on them. 1[st] respondent entered appearance and filed written statement admitting the motor accident, but denying negligence on his part. Negligence was sought to be attributed to the petitioner himself. Compensation claimed is also disputed for being exorbitant in nature. 2[nd] respondent was also served with notice and in the written statement filed by them, insurance coverage of the motorcycle bearing registration No. KL-5/AB 1530 as on the date of the motor accident is admitted. Negligence on the part ``` M.A.C.A.No.144 of 2016 ``` ``` 4 ``` of the 1[st] respondent is denied and it was sought to be attributed to the petitioner himself. Compensation claimed was also disputed for it’s exorbitant nature. 5. Before the Tribunal, evidence was adduced by both sides. On the side of the petitioner Exts.A1 to A7 and X1 were marked. On the side of the respondents, Exts.B1 and B2 were marked. On appreciation of the entire evidence, the Tribunal found negligence on the part of the 1[st] respondent who was riding the motorcycle at the relevant time. The Tribunal also fastened liability on the 2[nd] respondent to pay the compensation and thereby to indemnify the 1[st] respondent. `1,11,250/- was arrived at as the compensation payable and interest was also ordered to be paid at the rate of 9% per annum from the date of the Original Petition till the date of payment. 2[nd] respondent was directed to deposit the above sum with interest accrued on it and proportionate costs. ``` M.A.C.A.No.144 of 2016 ``` ``` 5 ``` 6. The learned counsel for the petitioner has contended that the monthly income was not reasonably fixed by the Tribunal. According to him, the motor accident was occurred in the year 2013 and the Tribunal ought to have taken a proportionate sum, having due regard to **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [ (2011) 13 SCC 236] where `4,500/- was fixed by the Apex Court as the monthly income of a coolie worker in the case of a motor accident occurred in the year, 2004. Accordingly, it was canvassed to re-fix `9,000/- in the place of `6,000/- already fixed. According to the learned counsel though the petitioner had sustained fracture of tibia in the motor accident, the Tribunal awarded loss of earning only for three months. According to him, it ought to have considered loss of earning for 6 months. The learned counsel pointed out ``` 6 ``` ``` M.A.C.A.No.144 of 2016 ``` furthermore that the Tribunal failed to award compensation towards extra nourishment. According to him, the compensation stood awarded by the Tribunal towards bystander expenses and transportation expenses are also inadequate and modification by way of enhancement is required in interference. 7. The learned counsel has pointed out that 6% was assessed by the Medical Board as the permanent disability of the petitioner, but the compensation for that being calculated by the Tribunal on the basis of `6,000/as the monthly income, the petitioner is aggrieved. According to him, calculation based on a re-fixed sum as monthly income is essential in the interest of justice and he seeks for that. 8. Learned counsel for the respondent contended on the contrary that the compensation stood awarded by the Tribunal is adequate in all respects. According to ``` M.A.C.A.No.144 of 2016 ``` ``` 7 ``` him, interference is totally unwarranted for the reason that just and reasonable compensation has been awarded by the Tribunal taking into account of the entire evidence adduced by the petitioner. 9. As already stated, the motor accident in question was occurred at about 11.45 hours on 22.03.2013. Petitioner was knocked down by a motorcycle ridden by the 1[st] respondent in a rash and negligent manner. He was rushed to Medical College Hospital, Kottayam for treatment. Initially only abrasion on left leg was noted, but during the course of treatment, in the investigation followed, fracture was detected. Initially the petitioner was treated by application of AK cast but lateron it was changed to application of plaster of paris and it continued for six weeks. When viewed in that backdrop, Tribunal is found unjustified in granting compensation for loss of earning ``` M.A.C.A.No.144 of 2016 ``` ``` 8 ``` only for 3 months. The petitioner was a driver by occupation and therefore, he may not be able to resume his work atleast for a period of six months. Relying on the fixation of monthly income in **Ramachandrappa** supra, `9,000/- is re-fixed as the monthly income of the petitioner. When compensation for loss of earning is calculated on the basis of `9,000/- as the monthly income, `54,000/- (`9,000/- x 6) is arrived at. The Tribunal has already awarded `18,000/- as compensation under that head and that when adjusted against the sum now arrived at, the petitioner will get `36,000/- (`54,000/- - `18,000/-) as additional compensation. 10. It is pertinent to note that the petitioner had undergone treatment at Medical College Hospital, Kottayam. A claim of `2,000/- was made in the Original Petition towards transportation expenses. Tribunal ``` 9 ``` ``` M.A.C.A.No.144 of 2016 ``` awarded only `1,000/- and it being inadequate, this Court awards `1,000/- more under that head. The Tribunal failed to award any compensation towards extra nourishment and therefore, this Court awards `2,000/under that head. The Tribunal has awarded only `1,000/- as compensation towards bystander expenses. In view of the fracture sustained by the petitioner on his leg and application of AK cast and POP for a considerable period, this Court finds it appropriate to award compensation at least for five months. Thus `4,000/- more is awarded towards bystander expenses. 11. Petitioner was granted only `18,000/- and `10,000/- respectively as compensation towards pain and suffering and discomforts and inconveniences which undoubtedly are inadequate, when viewed in the backdrop of the fracture sustained by the petitioner and the treatment followed. Therefore, this Court finds it ``` M.A.C.A.No.144 of 2016 ``` ``` 10 ``` reasonable to award `22,000/- and `20,000/- more as compensation respectively under those heads. 12. Compensation for disability needs to be recalculated since the monthly income was re-fixed as `9,000/-. The Tribunal has adopted ‘14’ as the multiplier but in the table of calculation, ‘13’ was shown incorrectly. But the calculation was made only on the basis of the multiplier ‘14’. Compensation for permanent disability is recalculated on the basis of `9,000/-, the re-fixed monthly income, and all other factors considered by the Tribunal, `90,720/- (`9,000/- x 12 x 14 x 6/100) is arrived at. `60,500/- stood awarded by the Tribunal when adjusted against, the petitioner will get `30,220/- (`90,720/- - `60,500/-) as additional compensation. 13. In the above manner of calculation afresh, the petitioner will get `1,15,220/- (`36,000/- + `1,000/- + ``` M.A.C.A.No.144 of 2016 ``` ``` 11 ``` `2,000/- + `4,000/- + `22,000/- + `20,000/- + `30,220/-) (Rupees one lakh fifteen thousand two hundred and twenty only) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding 51 days of delay occurred in filing the appeal on hand. 2[nd] respondent, being the insurer of the offending vehicle shall deposit the above sum with interest accrued on it at the rate fixed, within a period of two months from the date on which a certified copy of this judgment is received. The Tribunal shall follow the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019, while disbursing the additional compensation in favour of the petitioner. M.A.C.A stands allowed accordingly. Sd/- ## **MARY JOSEPH, JUDGE** NAB