# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 25[ TH ] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946`**
## **`MACA NO. 1258 OF 2013`**
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AGAINST THE AWARD DATED 22.01.2013 IN OP(MV) NO.612 OF 2007 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA
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## **`APPELLANT/PETITIONER:`**
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SHANEEJ T.R.,
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THALACHIRAYIL HOUSE, KOZHIPILLY KARA, PALAKKUZHA VILLAGE,
MUVATTUPUZHA TALUK.
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BY ADV SRI.SABU FRANCIS
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## **`RESPONDENTS/RESPONDENTS:`**
- **`1 SUBIN K.V.,`**
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S/O.VISWAMBARAN, KOLLAMMOLAYIL HOUSE, ELANADU P.O.,
CHELAKKARA, THRISSUR DISTRICT, PIN:680586.
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2 NATIONAL INSURANCE CO.LTD.
THRISSUR, 2ND FLOOR, AMBIKA ARCADE, M.G.ROAD,
THRISSUR-680001.
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3 SUJITH,
S/O.VISWAMBARAN, KOLLAMMOLEL HOUSE, ELANADU P.O.,
CHELAKKARA, THRISSUR DISTRICT, PIN-680 586.
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R2 BY ADV SRI.RAJAN P.KALIYATH, SC, NATIONAL INSURANCE
CO.LTD.
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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MACA 1258 of 2013
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## **J U D G M E N T**
This appeal has been preferred by the petitioner in OP(MV) No.612 of 2007 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, challenging the quantum of compensation awarded by the Tribunal as per award dated 22.01.2013.
2. The appellant claims that he was a goldsmith, aged only 26. He met with a road traffic accident on 15.07.2006, at 10.45 p.m., while he was riding a motorcycle, through NH-47 when it reached Vettickal near Mannuthy. KL-11/G-5452 Tata Sumo car driven by the 3rd respondent in a rash and negligent manner knocked down his motorcycle and he fell down and sustained serious injuries including fracture to both femur. He was admitted in Jubilee Mission Medical College Hospital, Thrissur, and he underwent impatient treatment there, for 48 days. Thereafter also he was continuing his treatment including physiotherapy. He approached the Tribunal claiming
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compensation of Rs.3,00,000/-. But the Tribunal awarded only Rs.1,83,800/- as compensation. Hence the appeal.
3. Though the 1st respondent was served with notice, he opted to remain absent. Service to the 3rd respondent was dispensed with, since the 1st respondent-owner was already on the party array and service was complete on him. The 2nd respondent entered appearance through Adv.Rajan P. Kaliyath. The policy is admitted, but there was violation of the policy conditions as the offending vehicle had no fitness certificate during the relevant period.
4. Heard learned counsel for the petitioner and learned
counsel appearing for the 2nd respondent-Insurer.
5. Now let us see whether there is any illegality,
irregularity or impropriety in the impugned award warranting interference by this Court .
6. The main contention taken up by learned counsel for
the petitioner is that the petitioner was a goldsmith by
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profession, aged only 26, and he was earning monthly income of Rs. 12,000/-. But learned Tribunal, without any justification, fixed his monthly income notionally @ Rs.2,500/-. He is relying on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , to say that even a coolie worker was eligible to get his notional income fixed @ Rs.5,500/- per month in the year 2006. Since the appellant was an expertised goldsmith, his notional income could have been fixed at least @ Rs.6,000/-. But no documents are there to show that the appellant was a goldsmith during the period of accident, earning monthly income of Rs. 12,000/-, except Ext.A2 FI Statement, in which the appellant himself had stated that he was a goldsmith. Since no documents are there to support the case of the appellant that he was a goldsmith by profession, relying on **Ramachandrappa’s case** cited supra, this Court is inclined to fix his notional income @ Rs.5,500/-.
7. Learned counsel for the appellant would submit that
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the appellant was not able to do his job for eight months, as he suffered fracture to both femur. Ext.A6-wound certificate also will show that he had suffered fracture to both femur, and Ext.A10 disability certificate shows that he had suffered disability of 10%. There was bilateral fracture, shaft of femur with bone loss of 2 inches. Moreover, there was shortening of right lower limb by 1.5 inches. He was not able to squat properly and the right and left knee movements were reduced to 90-100 flexion. Being so, the case set up by the appellant that he was not able to do any job for 8 months is liable to be accepted. So, taking his monthly income at Rs.5,500/-, he is eligible to get Rs.44,000/-(5,500x8) under the head of ‘loss of earning’. He was awarded only Rs.15,000/- by the Tribunal. So he is entitled to get the balance amount of Rs.29,000/towards loss of earning.
8. Towards pain and suffering, though the appellant claimed Rs.30,000/-, the Tribunal awarded only Rs.25,000/-. Considering the nature of injuries suffered by the appellant,
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the period of hospitalisation and subsequent treatment even after discharge, this Court is inclined to award Rs.30,000/- as claimed by the appellant. So the balance entitled by the claimant towards pain and suffering, is Rs.5,000/-.
9. Towards loss of amenities, though the appellant claimed Rs.25,000/-, the Tribunal awarded only Rs.20,000/-. As shown in Ext.A10 disability certificate, he suffered shortening of right lower limb by 1.5 inches and he was unable to squat properly with restriction of left knee joint. He was a man aged only 26. So, for the loss of amenities, he was eligible to get Rs.25,000/- as claimed. So the balance he is entitled towards loss of amenities, is Rs.5,000/-.
10. Towards bystander expenses, though the appellant claimed Rs.10,000/-, the Tribunal awarded only Rs.3,000/-. He was hospitalised for 48 days as seen from Ext.A8 discharge card. Even if we fix the bystander expenses @ Rs.150/- per day, for the period of hospitalisation itself, he was eligible to get Rs.7,200/-. Ext.A9 series medical bills will show that even
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after discharge, he was regularly undergoing physiotherapy. So every time, for attending physiotherapy, he was in need of a bystander, because he had suffered fracture to both femur. So this Court deems it just and proper to award Rs.10,000/- as bystander expenses, as claimed by the appellant. He was already paid Rs.3,000/- and so, he is entitled to get the balance amount of Rs.7,000/- as enhanced compensation towards bystander expenses.
11. Towards extra nourishment, the Tribunal awarded only Rs.2,500/-, though his claim was Rs.25,000/-. Considering the period of hospitalisation, and the subsequent treatment undertaken by the appellant, this Court is inclined to award Rs.2,500/- more towards extra nourishment.
12. Towards transportation expenses, the Tribunal awarded only Rs.2,000/- against his claim of Rs.6,000/-. The appellant was taken to Jubilee Mission Hospital, Thrissur, after the accident and on discharge, he was taken to his house at Koothattukulam. Thereafter also, he was regularly attending
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physiotherapy sessions. Considering these aspects, this Court is inclined to award Rs.5,000/towards transportation expenses. After deducting Rs.2,000/- already given, he is entitled to get the balance amount of Rs.3,000/- towards transportation expenses.
13. Towards medical expenses, the Tribunal awarded the entire amount covered by Ext.A9 medical bills and so it needs no interference.
14. Towards compensation for permanent disability, the Tribunal accepted Ext.A10 disability certificate as such, taking his permanent disability as 10%. But his notional income was taken as Rs.2,500/- and the multiplier was mistakenly applied as 18, instead of 17. So on recalculating the compensation for permanent disability of 10%, he is entitled to get Rs.1,12,200/(5,500x12x17x10%). As he was already awarded Rs.54,000/- by the Tribunal, he is entitled to get the balance amount of Rs.58,200/-.
15. The compensation awarded under the other heads
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## seems to be reasonable and it is liable to be accepted.
|Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation|
|---|---|---|---|
|Loss of earning|Rs.15,000/-|Rs.44,000/-|Rs.29,000/-|
|Pain and suffering|Rs.25,000/-|Rs.30,000/-|Rs.5,000/-|
|Loss of amenities|Rs.20,000/-|Rs.25,000/-|Rs.5,000/-|
|Bystander<br>expenses|Rs.3,000/-|Rs.10,000/-|Rs.7,000/-|
|Extra nourishment|Rs.2,500/-|Rs.5,000/-|Rs.2,500/-|
|Transportation<br>Expenses|Rs.2,000/-|Rs.5,000/-|Rs.3,000/-|
|Compensation for<br>permanent<br>disability|Rs.54,000/-|Rs.1,12,200/-|Rs.58,200/-|
|Total|||Rs.**1,09,700**/-|
16. In the result, the appellant is entitled to get enhanced compensation of Rs.1,09,700/- (29,000 + 5,000 + 5,000 + 7,000 + 2,500 + 3,000 + 58,200), as shown in the table given above.
17. The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs.1,09,700/- (Rupees One Lakh
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Nine Thousand and Seven Hundred only) in the bank account of the appellant, with interest @ 7% per annum, from the date
of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. 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 appellant towards Tax, balance court fee and legal benefit fund.
18. Since the 1st respondent-owner has not challenged the ‘pay and recover’ ordered in favour of the 2nd respondent/Insurer, that direction is retained.
Accordingly the appeal is allowed in part to the extent as above, and no order is made as to costs.
Sd/-
**SOPHY THOMAS JUDGE**
DSV/-
