Shibu v. Vijayakumar and Maheen Kannu A. and The Manager, New India Assurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 30 [ TH ] DAY OF MAY 2024 / 9TH JYAISHTA, 1946 ``` ## **`MACA NO. 2696 OF 2016`** ``` AGAINST THE AWARD DATED 10.10.2015 IN OP(MV) NO.1245 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL ``` ## **`APPELLANT/PETITIONER:`** ## **`SHIBU,`** ``` S/O. ARIS TYTTAS, KIZHAKKUMPARA PUTHEN VEEDU, KULAVIYODE, CHULLIMANNOR P.O. ``` ``` BY ADVS. SRI.R.ANILKUMAR SRI.G.RADHAKRISHNAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 VIJAYAKUMAR,`** - **`S/O. MADHAVAN PILLAI, KARUVILA PUTHEN VEEDU, KARUMANCODE, PALODE, PIN-678 583..`** - **`2 MAHEEN KANNU A.,`** ``` S/O.ABDUL AZEEZ, ROADARIKATHU VEEDU, ERUYHALAMOOLA, THOLICODE P.O., PIN-695 541. ``` - **`3 THE MANAGER,`** ``` NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, ATTINGAL P.O., PIN-695 101. ``` MACA 2696 of 2016 2 ``` BY ADVS. SRI.G.RANJU MOHAN, FOR R1 SRI.PMM.NAJEEB KHAN, FOR R3 SMT.M.SANTHI K8682011, FOR R1 ``` ``` THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2696 of 2016 3 ## **J U D G M E N T** This appeal is at the instance of the claimant in OP(MV) No.1245 of 2007 on the file of Motor Accidents Claims Tribunal, Attingal, assailing the award on the ground of inadequacy of compensation. 2. The appellant while travelling pillion in a scooter, met with a road traffic accident on 27.06.2007 at 6.30 p.m. KL-02/B-1353 jeep, driven by the 2nd respondent, in a rash and negligent manner, dashed against the scooter and the appellant was thrown down and he sustained serious injuries including Type III compound fracture of both bones of right leg, fracture temporal bone coupled with Hemorrhagic contusion of right temporal lobe. He was admitted in hospital for 191 days in total. He was a quarry worker, aged 40 years, earning monthly income of Rs.4,000/-. Due to the injuries suffered, he became disabled and he was not able to continue his quarry work MACA 2696 of 2016 4 any more. He approached the Tribunal claiming compensation of Rs.3,00,000/-, but the Tribunal awarded only Rs.1,30,059/-, against which he has preferred this appeal. 3. The 3rd respondent-Insurer admitted the accident as well as the Insurance Policy of the offending jeep. According to them, the compensation awarded by the Tribunal is just and reasonable and so it needs no modification. 4. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. 5. Heard learned counsel for the appellant and learned counsel for the 1st respondent and the 3rd respondent-Insurer. MACA 2696 of 2016 5 6. Learned counsel for the appellant would submit that the Tribunal went wrong in fixing notional income of the appellant @ Rs.3,000/-, though he was earning monthly income of Rs.4,000/-. He would rely upon 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.6,000/- in the year 2007. Since the claim of the appellant is only Rs.4,000/- per month, this Court is inclined to accept that income, as his notional income. 7. Learned Tribunal assessed loss of income for a period of six months. Exts.A1, A5, A7, A9 and A10 discharge summaries will show that the appellant was hospitalised for 191 days in total, which exceeds the six months’ period, for which, loss of earning was assessed by MACA 2696 of 2016 6 the Tribunal. Since, he had suffered Type III compound fracture of both bones of right leg and fracture of temporal bone, even after discharge, he might not have been able to do any kind of job, for a considerable period. So this Court is inclined to take the loss of earning for a period of one year @ Rs.4,000/-, which will come to Rs.48,000/-. After deducting Rs.18,000/- already awarded, he is entitled to get the balance amount of Rs.30,000/- as enhanced compensation, under the head ‘loss of earning’. 8. Towards Transportation expenses, learned Tribunal awarded only Rs.1,000/-. The discharge summaries will show that he was admitted in hospital on five different occasions. So this Court is inclined to award Rs.3,000/more under the head ‘transportation expenses’. 9. Towards extra nourishment, learned Tribunal awarded only Rs.1,000/-. The appellant was in hospital for MACA 2696 of 2016 7 191 days and even after discharge, he might have been under special care and nutrition, considering the nature of injuries suffered by him. So this Court is inclined to award Rs.4,000/- more under the head ‘extra nourishment’. 10. Towards bystander expenses, learned Tribunal awarded only Rs.19,400/- @ Rs.100 per day for 194 days of hospitalisation. Since the accident was in the year 2007, bystander expenses @ Rs.250 per day is quite reasonable. Since there was Type III compound fracture of both bones of right leg, even after discharge from hospital, he might have been under the assistance of a bystander for some more period. So this Court is inclined to take his bystander expenses for 250 days in total @ Rs.150 per day, which will come to Rs.37,500/-. After deducting Rs.19,400/already awarded, the balance amount will come to MACA 2696 of 2016 8 Rs.18,100/- as enhancement under the head ‘bystander expenses’. 11. Towards pain and suffering, this Court is inclined to award Rs.7,000/- more apart from Rs.15,000/- awarded by the Tribunal, considering the long duration of hospitalisation and the sufferings of the appellant, even after discharge. Before the Tribunal no disability certificate was produced by the appellant. Even then, taking note of the seriousness of the injuries and the consequent physical difficulties thereof, learned Tribunal suo motu fixed his disability as 10%. Learned counsel for the appellant would submit that the disability suffered by the appellant was even more than that, and so, he made a request before this Court to assess the disability of the appellant through a Medical Board. Accordingly, the appellant was referred to the Medical Board constituted by the Government MACA 2696 of 2016 9 Medical College Hospital, Thiruvananthapuram, and disability certificate dated 20.11.2023 was received before this Court reporting his permanent disability as 26%. He was examined by a Medical Board constituted by specialist Doctors in Orthopaedics, Ophthalmology, ENT, Neuro Surgery etc. Learned counsel for the appellant would say that the disability assessed by the Medical Board also is on the lower side, considering his functional disability. He produced some photographs of the appellant for perusal, which will show that there is wastage of muscle on his right leg below knee, coupled with disfiguration. But when the appellant was clinically examined by a competent Medical Board and his disability was certified as 26%, this Court is not inclined to go beyond that, and hence the disability reported by the Medical Board is accepted as such. MACA 2696 of 2016 10 12. We have fixed his notional income @ Rs.4,000/-. Since he was aged 40 years at the time of accident, the multiplier applicable is 15. So the compensation for 26% disability can be assessed as Rs.1,87,200/(4,000x12x15x26/100). After deducting Rs.54,000/already awarded, the appellant is entitled to get the balance amount of Rs.1,33,200/- under the head ‘disability compensation’. 13. Towards loss of amenities, learned Tribunal awarded Rs.15,000/- against his claim of Rs.25,000/-. The appellant was a 40 years old man, and he suffered permanent disability of 26% due to the injuries suffered in the accident. There was loss of power of right knee and the ankle rotation was reduced by 4%. Moreover, there was limb length discrepancy to the extent of 4% and so, the locomotor disability of the right leg was assessed to be MACA 2696 of 2016 11 26%. Considering those aspects, this Court is inclined to award Rs.5,000/- more under the head ‘loss of amenities’. 14. The compensation awarded by the Tribunal under other heads seems to be reasonable and it needs no modification. |odification.|||| |---|---|---|---| |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.18,000/-|Rs.48,000/-|Rs.30,000/-| |Transportation<br>expenses|Rs.1,000/-|Rs.4,000/-|Rs.3,000/-| |Extra nourishment|Rs.1,000/-|Rs.5,000/-|Rs.4,000/-| |Bystander<br>expenses|Rs.19,400/-|Rs.37,500/-|Rs.18,100/-| |Pain and suffering|Rs.15,000/-|Rs.22,000/-|Rs.7,000/-| |Compensation for<br>permanent<br>disability|Rs.54,000/-|Rs.1,87,200/-|Rs.1,33,200/-| |Loss of amenities|Rs.5,000/-|Rs.10,000/-|Rs.5,000/-| |Total|||**Rs.2,00,300**/-| 15. In the result, the appellant is entitled to get Rs.2,00,300/- as enhanced compensation. MACA 2696 of 2016 12 16. The 3rd respondent-Insurer is directed to deposit the enhanced compensation of Rs.2,00,300/- (Rupee Two Lakh Three Hundred only), with 9% interest per annum, from the date of petition till the date of deposit, (excluding 184 days of delay in filing the appeal) before the Motor Accidents Claims Tribunal, Attingal, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting his liabilities, if any, towards tax, balance court fee, legal benefit funds etc. The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- DSV/- **SOPHY THOMAS JUDGE**