Santosh Kumar v. N.K. Anilkumar, Nadeera Faizal & The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 17TH DAY OF DECEMBER 2013/26TH AGRAHAYANA, 1935** ## **MACA.No. 1480 of 2005 ( )** **-------------------------OPMV.1929/1997 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM.** **......** **APPELLANT/PETITIONER.:** **---------------------------------------** **SANTHOSH KUMAR. J., S/O.T.P. JANARDHANAN NAIR, UDAYAGIRI HOUSE, KUNCHITHANNY P.O., IDUKKI.** **BY ADV. SRI.T.K.KOSHY.** ## **RESPONDENTS/RESPONDENTS.:** **-------------------------------------------------** **1. N.K. ANILKUMAR, S/O.N.T. KESAVAN, CHAKKALAPARAMBIL, NILAMPATHINJA MUGAL, KAKKANAD, KOCHI -30.** **2. NADEERA FAIZAL, IOTTA PARAMBATH HOUSE, NETTOOR P.O.** **3. THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, PUTHENPURACKAL CHAMBERS, PALLURUTHY, KOCHI- 682 006.** **R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE. ADV. SRI.P.JACOB MATHEW.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 1480 of 2005 ================== Dated this the 17[th] day of December, 2013 J U D G M E N T K.Ramakrishnan, J.: The claimant in O.P.(M.V).No.1929/1997 on the file of the Motor Accidents Claims Tribunal, Ernakulam, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disability suffered by him in a motor vehicle accident caused on account of the rash and negligent driving of a vehicle by the 1[st] respondent, owned the 2[nd] respondent and insured with the 3[rd] respondent. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: ||Head of claim||Amount<br>awarded<br>`|Amount<br>awarded<br>`|Amount<br>awarded<br>`| |---|---|---|---|---|---| |1|Loss of earnings||18,000.00||| |2|Transport to hospital||2,000.00||| |3|Damage to clothing||500.00||| |4|Extra nourishment||2,000.00||| |5|Medical expenses||157,000.00||| |6|Attendant expenses|||6,000.00|| |7|Loss of amenities & enjoyment in life|||15,000.00|| |8|Pain & suffering|||30,000.00|| ||||||| |9|Permanent disability||||5,000.00| |10|Loss of earning power|||74,880.00|| ||||||| |11|Disfiguration||||5,000.00| ||Total||3,15,380.00||| m.a.c.a.1480/05 - : 2 :- Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhanced compensation. 2. Heard the learned counsel for the appellant and the learned counsel for the insurance company. 3. The learned counsel for the appellant submitted that the appellant was aged only 20 years and working as a sales representative for Eureka Forbes Limited and getting ` 4,000/as monthly income. But the Tribunal has arbitrarily fixed his monthly income as ` 1,500/- per month, which is very low. Further, he suffered severe injuries including several fractures on vital parts. He was under treatment as inpatient for 378 days. His treatment continued for a period of nearly four years and he could not attend his work during the period of his treatment. But the Tribunal has taken only twelve months' loss of earning during the period of treatment, which is also on the lower side. Considering the nature of treatment and the period of treatment undergone, the amount awarded under the head, 'pain and suffering' is also very low. Further, meagre amounts have been awarded for transport to hospital, extra nourishment etc. without considering the nature of treatment undergone and the period of treatment undergone etc. Further, he suffered 26% disability. m.a.c.a.1480/05 - : 3 :- But the amounts awarded under the heads, 'loss of earning power' and 'loss of amenities in life' are also on the lower side. According to the learned counsel for the appellant, the appellant is entitled to get enhancement of compensation of all heads. 4. On the other hand, the learned counsel for the insurance company submitted that the documents produced will go to show that he suffered another fracture after two years and he was treated for the same as well. So it cannot be said that he was under continuous treatment for the injuries sustained in the accident in question. Further, no document has been produced to show that he was working as a sales representative for Eureka Forbes and getting ` 4,000/-. Under the circumstances, the Tribunal was perfectly justified in notionally fixing the monthly income as ` 1,500/- and in the year 1994, it cannot be said that the monthly income assessed by the Tribunal is on the lower side. The total compensation awarded is just and proper and no interference is called for at the hands of this Court. 5. We have considered the rival contentions of both parties in detail. 6. Though the appellant claimed as a sales representative working for Eureka Forbes Ltd. and getting ` 4000/- per month, he had not produced any document to prove m.a.c.a.1480/05 - : 4 :- his avocation or income. But the learned counsel for the appellant wants to rely on the address given in the driving licence, in which, it is sated that he is employed in Eureka Forbes Forbes. But that alone is not sufficient to come to the conclusion regarding his income as such. But at the same time, considering the fact that he is a graduate and he was working in a firm it cannot be said that he was not getting any income as such. So considering these aspects and also his future prospect the amount of ` 1,500/- fixed by the Tribunal appears to be on the lower side and we re-fix the same as ` 2,000/- per month. 7. It is seen from the certificate that he suffered the following injuries: “Fracture femur - (R) shaft - compound. Closed fracture (L) femur -shaft Fracture tibia - middle part - (R) side. Fracture pelvis - ileum - (L) side. Laceration - both hands. Abrasion- nose/both leg.” It is also seen from the award as well as the treatment certificate produced that he was treated as inpatient for 378 days on various occasions and underwent several operations for the fractures suffered by him. It is also mentioned in one of the treatment certificates that subsequent fracture projected by the learned counsel for the insurance company was also a result of some negligence on the part of the claimant while treated with m.a.c.a.1480/05 - : 5 :- weight bearing due to slipping on account of the same. So it can also be treated only as consequence of the injuries suffered by him in the accident happened in 1994. Though the learned counsel for the appellant submitted that loss of earning will have to be taken for four years, there is nothing on record to show that he could not do any work during this period as such. However, considering the number of days of inpatient treatment and the nature of treatment, proved by the appellant by producing documents, we feel that the 12 months' loss of earning taken appears to be on the lower side and we take two years for the purpose of assessing compensation under the head, 'loss of earning' during the period of treatment and award ` 48,000/instead of ` 18,000/- awarded by the Tribunal under that head. 8. The Tribunal has awarded only ` 30,000/- under the head, 'pain and suffering'. It is seen from the documents produced that he was treated as inpatient for 378 days on several occasions and underwent several surgical operations as well. So he must have suffered severe pain on account of the same. So we are inclined to enhance the compensation under the head, 'pain and suffering, to ` 50,000/-. The Tribunal has taken 16 as the multiplier for awarding compensation under the head, 'loss of earning capacity'. The Tribunal has accepted 26% m.a.c.a.1480/05 - : 6 :- disability assessed by the medical board for that purpose. As per the decision in **Sarla Verma v. Delhi Transport Corporation** , 2009 ACJ 1298 (SC), the proper multiplier applicable to the age group of 20 years, as the appellant was at the time of the accident, (which is proved from the date of birth shown in the driving licence produced by him) is 18 and not 16 as taken by the Tribunal. If a re-calculation is made on the above inputs, the appellant will be entitled to get ` 1,12,320/- ( ` 2000 x 12 x 18 x 26%) instead of ` 74,880/- awarded by the Tribunal. 9. The Tribunal has awarded only ` 6,000/- under the head, 'bystander's expenses'. He was treated as inpatient for 378 days. He continued his treatment thereafter as well. During this period, he may require the assistance of somebody to look after his affairs. So considering this aspect, we enhance the compensation under the head, 'bystander's expenses' to ` 37,800/-. Similarly, we enhance the amount awarded under the heads, 'transport to hospital' and 'extra nourishment' to ` 5,000/each instead of ` 2000/- each awarded by the Tribunal. He will be having some difficulty in his personal life as well on account of the injuries sustained. The Tribunal has awarded compensation of ` 25,000/- under various heads, namely, ` 15,000/- under the head, 'loss of amenities and enjoyment in m.a.c.a.1480/05 - : 7 :- life', ` 5,000/- for permanent disability and ` 5,000/disfigurement, though all these heads come under the same head, 'loss of amenities and enjoyment in life'. Considering the fact that he suffered severe disability, with disfiguration, we feel that this can be enhanced to ` 30,000/-. Despite the persuasive arguments of the learned counsel for the appellant, we are unable to persuade ourselves to enhance compensation under the other heads. In all, the appellant will be entitled to get additional compensation of ` 1,30,240/- over and above what has been awarded by the Tribunal, which the 3[rd] respondent insurance company is liable to pay with 9% interest from the date of petition till date of payment. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE sdk+ Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge