Santosh v. Jose Abraham and Ors.

``` MACA NO. 325 OF 2013 1 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945 ``` ## `MACA NO. 325 OF 2013` ``` [AGAINST THE JUDGMENT AND AWARD DATED 28.4.2012 MADE IN OP(MV)NO.768/2005 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS ``` ## `TRIBUNAL, MUVATTUPUZHA]` ``` APPELLANT/PETITIONER: ``` ``` SANTHOSH, AGED 34 YEARS, S/O.DAMODHARAN, C/O.ANILKUMAR, AJITH NIVAS, MEKKADAMBU P.O., KADATHI, MUVATTUPUZHA BY ADVS. SRI.JOY C. PAUL DR.ABRAHAM P.MEACHINKARA ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1JOSE ABRAHAM, KOOTTINGAL HOUSE, VELLIYAMATTOM, THODUPUZHA, IDUKKI-685588 2NATIONAL INSURANCE CO LTD PULIMOOTTIL SHOPPING ARCADE,THODUPUZHA-685584 3LIJUMON AGED 45 YEARS S/O GOPALAN,THADATHIL HOUSE,ALAKODU PO,PIN 685588 BY ADVS. FOR R1 BY SRI.THOMAS J.ANAKKALLUNKAL FOR R2 BY SRI.A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 325 OF 2013 2 ``` ## `JUDGMENT` ``` The appellant was the petitioner in O.P(MV) No.768/2005 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha. The said claim petition was submitted by him seeking compensation for the injuries sustained in a Motor Accident occurred that on ``` ``` 17.02.2005. ``` ``` 2.According to the appellant,the accident occurred when the motorcycle ridden by him was hit by a bus driven by the 3[rd] respondent in a rash and negligent manner. The bus was owned by the 1[st] respondent and was insured with the 2[nd] respondent. According to the appellant, he was working as an Aluminum Fabricator with a monthly income of Rs.5,000/-. He was aged 26 years and he sustained serious injuries in the accident which resulted in physical disablement as well. The claim petition was submitted in such circumstances. ``` ``` MACA NO. 325 OF 2013 3 3.The 2[nd] respondent alone contested the matter by filing a written statement wherein they admitted the coverage of policy but ``` ``` disputed the liability on various grounds. The negligence as well as the quantum of compensation was also disputed by them. ``` ``` 4.The evidence in this case consists of ``` ``` oral testimonies of PWs 1 to 3 and Exts. A1 to A10 from the side of the appellants. From the side of the respondents Ext.P1 was marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to ``` ``` the negligence on the part of the 3[rd] respondent in driving the bus and being the insurer, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was determined as Rs.74,500/- and the 2[nd] respondent was directed to deposit the said amount with interest @ 8% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking ``` ``` MACA NO. 325 OF 2013 4 ``` ``` enhancement of compensation. ``` ``` 5.Heard Sri.Joy C. Paul, learned counsel ``` ``` appearing for the appellant, Sri.Thomas.J. ``` ``` Anakkalunkal learned counsel appearing for the ``` ``` 1[st]respondent and Sri.A.R.George learned ``` ``` counsel appearing for the 2[nd] respondent. ``` ``` 6.The learned counsel for the appellant ``` ``` contents that, the amount awarded by the Tribunal, particularly under the head of ``` ``` disability, is extremely on the lower side. It was pointed out that a very meager monthly income was taken by the Tribunal. On perusal of the records, I find some force in the said ``` ``` contention. It is to be noted that even though ``` ``` Rs.5000/- was claimed as monthly income, the Tribunal took the same as Rs.2,500/- only, ``` ``` which is inadequate. It is to be noted that the ``` ``` accident occurred in the year 2005. In ``` ``` Ramachandrappa v. Manager, Royal Sundaram ``` ``` Alliance Insurance Co.Ltd [(2011) 13 SCC 236], ``` ``` the Honorable Supreme Court was pleased to take ``` ``` MACA NO. 325 OF 2013 5 ``` ``` the monthly income of an ordinary employee even ``` ``` without any evidence as Rs.4,500/- for an accident occurred in the year 2004. Therefore, ``` ``` the monthly income of Rs.5,000/- claimed by the appellant appears to be reasonable and hence the same is accepted. The percentage of disability as certified in the Medical Certificate was 7% which is already accepted by the Tribunal. The appellant was aged 26 years at the time of the accident and, therefore the multiplier applicable is 17. When the ``` ``` compensation is reworked with the above revised criteria, it would come to Rs.71,400/- ``` ``` (5000x12x17x7/100). The amount already awarded by the Tribunal is Rs.37,800/- and thus the additional amount would come to Rs.33,600/- ``` ``` 7.Another aspect relates to the compensation for loss of income. The Tribunal awarded compensation under this head for a period of three months. It is seen from the records that, consequent to the accident, the appellant ``` ``` MACA NO. 325 OF 2013 6 sustained the following injuries; ``` ``` “Injury on the right fronto temporal area, multiple abrasions right hand and forearm, near total amputation of the right ring finger at DIP level and crushing of fingers medial 3 present in the right hand. CT scan of head showed right temporal bone fracture, right anterior temporal epidural hematoma.” ``` ``` Considering the nature of the injuries and the ``` ``` nature of employment, which was Aluminum Fabrication, I am of the view that, he would have been prevented from pursuing his ``` ``` employment at least for a period of four ``` ``` months. Therefore the compensation for loss of ``` ``` earning is granted for the said period. This resulted in an additional amount of Rs.12,500/- (5000x4-7,500) ``` ``` 8.The amount awarded by the Tribunal towards pain and suffering was Rs.10,000/-. Considering the nature of the injuries referred to above, I deem it appropriate to grant a further sum of Rs.15,000/- under the said head. Similarly, the amount awarded by the tribunal ``` ``` MACA NO. 325 OF 2013 7 ``` ``` towards loss of amenities was Rs.8,000/- only, ``` ``` which is also on the lower side. Considering the nature of injuries, the physical disability arising therefrom and the possible impact of such disability on the avocation and his personal life, I deem it appropriate to grant a further sum of Rs.17,000/- under the said head. Thus the total additional ``` ``` compensation is determined as Rs.78,100/- ``` ``` [Rs.33600+12500+15000+17000] ``` ``` In the result this appeal is allowed. The award dated 28.04.2012, passed by the Motor ``` ``` Accidents Claims Tribunal, Muvattupuzha in O.P ``` ``` (MV) No.768/2005 is hereby modified by granting ``` ``` an additional compensation of Rs.78,100/- ``` ``` (Rupees seventy-eight thousand and one hundred ``` ``` only) which shall be deposited by the 3[rd] ``` ``` respondent with interest at the rate as ordered ``` ``` by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. As the ``` ``` MACA NO. 325 OF 2013 8 appeal was filed with a delay of 168 days, the ``` ``` 2[nd] respondent shall be entitled to exclude the said period while computing the interest on the additional compensation. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` Asw/pkk ```