Saneesh v. Divisional Manager, Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938 MACA.No. 3352 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 810/2013 of M.A.C.T., KOLLAM DATED 16-07-2016 APPELLANT(S)/PETITIONER: ----------------------- SANEESH, AGED 28 YEARS, S/O. PAPPACHAN, RESIDING AT KAITHAVANTHARAYIL, THEKKUMURY, SOORANAD, KOLLAM DISTRICT. BY ADVS.SRI.BINU GEORGE SMT.HEMALATHA RESPONDENT(S)/RESPONDENT: ---------------------------------- THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD, LIC BUILDING, KOLLAM- 691 001. BY ADV. SRI.MATHEWS JACOB (SR.) BY ADV. SRI.P.JACOB MATHEW BY ADV. SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.3352 OF 2016 ==========================** Dated this the 24[th ] day of November, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-claimant preferred this appeal on being aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Kollam in O.P.(MV).No.810 of 2013. The said claim petition was filed under section 166 of the Motor Vehicles Act seeking a total compensation of `10,00,000/- for the injuries sustained by him in a motor vehicle accident occurred on 11.5.2012. He was riding his motor cycle when an autorickshaw bearing Reg.No.KL-04 T 2846 dashed against his motor cycle. On sustaining injuries, he was taken to the hospital wherein he remained as an inpatient for a period of 40 days. The injuries sustained in the accident resulted in permanent disability. On considering the evidence on record consisting of the evidence of the appellant as PW1 **M.A.C.A.3352/2016** 2 and Exts.A1 to A14 and Ext.C1 which is a court exhibit, the Tribunal passed the impugned award. As per the same, a total compensation of `6,61,082 with interest @ 9% from the date of the petition till realisation was granted. It is seeking enhancement of the said quantum of compensation that the captioned appeal has been preferred. 2.In view of the absence of any dispute regarding the liability to indemnify the insured-owner of the vehicle, the sole question to be resolved in this appeal is regarding the entitlement of the appellant to get enhanced compensation. Therefore, we are proceeding to consider the appeal on merits at the admission stage itself. 3.The learned counsel for the appellant submitted that the Tribunal erroneously fixed the monthly income ignoring the averments in the claim petition regarding occupation and income and also the documents produced in support of the same. It is the further contention that though the appellant sustained 30% disability, the Tribunal failed to grant any amount towards future treatment. The fact that the nature of the injuries would adversely affect the marriage **M.A.C.A.3352/2016** 3 prospects of the appellant was also not taken into consideration by the Tribunal, it is submitted. - 4.The learned senior counsel, Sri.Mathews Jacob, appearing for the insurance company submitted that though the appellant had failed to establish the occupation and income, the fixation of monthly income by the Tribunal as `5,000/- cannot be said to be too low warranting an appellate interference considering the relevant factors and facts. It is the further submission that a glance at the schedule of compensation given in the impugned award would reveal that the Tribunal has granted adequate compensation under all heads. It is also submitted that the entire percentage of disability assessed under Ext.C1 certificate was taken by the Tribunal, for calculation purpose. 5.While considering the grievance of the appellant regarding the fixation of the monthly income, we are of the view that though the Tribunal is justified in fixing the monthly income notionally, there is substance in the contention of the appellant that the Tribunal erred in fixing the monthly income. The appellant was aged only 25 years on the date of the accident and the accident occurred on 11.5.2012. **M.A.C.A.3352/2016** 4 Exts.A12 and A13 would reveal that he was a qualified person as he possesses a national trade certificate in Process Control Instrumentation. Taking into account the aforesaid factors and taking the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** as guidance in the matter of fixation of monthly income, we are of the view that the monthly income fixed by the Tribunal is too low. The accident in question occurred about 8 years since the accident involved in **Ramachandrappa** 's case. In **Ramachandrappa** 's case, in respect of a coolie who met with an accident occurred in the year 2004, the Apex Court fixed the monthly income as `4,500/-. Therefore, taking into account all the aforesaid aspects, we are inclined to fix the monthly income as `7,000/-, for calculation purpose. It is accordingly fixed. There is no dispute regarding the multiplier adopted by the Tribunal. As noticed hereinbefore, the Tribunal accepted the entire percentage of disability certified under Ext.C1. In such circumstances, a re-assessment of compensation for permanent disability is required only by substituting **M.A.C.A.3352/2016** 5 the monthly income fixed by us. On such re-assessment, the amount payable to the appellant would be `4,53,600/-. The Tribunal has already granted an amount of `3,24,000/- under that head. After deducting the said amount, the appellant would be entitled to get an additional compensation of `1,29,600/-. The Tribunal took the period of loss of earning as eight months. Recalculating the compensation by retaining the said period but taking the monthly income as `7,000/-, the appellant would be entitled to get `16,000/- (7000x8-40000) additionally. The nature of the injuries sustained by the appellant in the accident is revealed from Exts.A8 and A11. Ext.A8 discharge card would reveal that the appellant sustained head injury and chest injury and also sustained fracture of 1, 2, 3, 4 ribs apart from brain injury. Ext.C1 disability certificate would reveal that he sustained physical impairment due to mild speech disability and partial ankylosis of right hip. Taking into account the nature of the injuries and the permanent disability, we are of the view that the appellant is also entitled to some amount towards future treatment and compensation for adverse impact of injuries on marriage prospects. Towards future treatment, we are **M.A.C.A.3352/2016** 6 inclined to grant `20,000/- and towards adverse impact on marriage prospects, an amount of `25,000/- is granted. In the light of the assessment/re-assessment made by us, the appellant would be entitled to get an additional compensation of `1,90,600/-. It is awarded. The said amount will carry 8% interest from the date of the petition till realisation. The respondent is directed to deposit the said amount along with interest thereon within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.3352/2016** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.3352/2016** 8 **JUDGMENT September, 2010**