Simon v. Soly Sebastian and Mahesh and United India Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938 MACA.No. 1430 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 1085/2008 of M.A.C.T., TIRUR DATED 27.11.2013 APPELLANT(S)/PETITIONER : ------------------------ SIMON AGED 54 YEARS, S/O. LONAPPAN, RESIDING AT VAZHAPPILLY HOUSE, P.O.KAIPARAMBU, PUTHUR, THRISSUR DISTRICT. (NOW RESIDING AT C/O. PREMKUMAR, KOTTAPATT HOUSE, EDAVANNUR, CHANGARAMKULAM, MALAPPURAM DISTRICT). BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENT(S)/RESPONDENTS : --------------------------- 1. SOLY SEBASTIAN RESIDING AT VELAMPARAMBA, IMPERIAL TRAVELS, THALIPARAMBA, KANNUR DISTRICT-670 141. 2. MAHESH - S/O. JANARDHANAN, RESIDING AT PUTHUKULANGARA VEETTIL, PULIPARAMBA DESOM, THALIPARAMBA, KANNUR DISTRICT-670 141. 3. UNITED INDIA INSURANCE COMPANY LIMITED - P.B.NO.52, FORT ROAD, KANNUR-670 001. R2 BY ADV. SRI.C.P.PEETHAMBARAN R2 BY ADV. SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1430 OF 2016 ==========================** Dated this the 17[th] day of October, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-claimant preferred this appeal dissatisfied with the quantum of compensation awarded by the Motor Accidents claims Tribunal, Tirur in O.P.(MV).No.1085 of 2008. The appellant filed the claim petition under section 166 of the Motor Vehicles Act seeking a total compensation of `3,35,000/- for the injuries sustained by him in a motor vehicle accident. On 23.11.2008 at about 9.30 p.m, he was riding his motor cycle bearing Reg.No.KL-8-U-5799 through Thrissur-Kunnamkulam highway. When he reached Kaiparambu, the offending vehicle, which is a bus bearing Reg.No.KL-59-A-2023 driven by the second respondent, dashed against his motor cycle. He **M.A.C.A.1430/2016** 2 sustained injuries and remained as an inpatient in West Fort Hospital, Thrissur. The injuries resulted in permanent disability. It is seeking compensation therefor, that the claim petition was filed. The Tribunal, on appreciation of the evidence on record consisting of evidence in Exts.A1 to A9 on the side of the appellant and Ext.C1 which is a court document and the rival contentions, granted a total compensation of `2,22,840/- with interest @ 9% per annum from the date of the petition till realisation. The appellant seeks enhancement of the compensation awarded by the Tribunal. 2.We have heard Sri.T.C.Suresh Menon, the learned counsel for the appellant and Sri.John Joseph Vettikkad, the learned counsel appearing for the third respondent-insurance company. 3.It is submitted by the learned counsel on both sides that the only question to be considered in this case is regarding the entitlement of the appellant for enhancement of compensation. In such **M.A.C.A.1430/2016** 3 circumstances, we are inclined to consider this appeal on merits at the admission stage itself. 4.The main grievance of the appellant is that the Tribunal fixed the monthly income so meagrely at `4,000/- disregarding the fact that the accident occurred in the year 2008 and on the date of the accident the appellant was aged only 46 years. The learned counsel for the third respondent submitted that the fixation of the monthly income notionally by the Tribunal cannot be found fault with, as the appellant had not adduced any evidence to establish his occupation and income. True that the appellant had produced Ext.A7 which is a copy of the driving licence. But, the mere production of driving licence cannot be taken as a proof for one's occupation. While holding that the Tribunal is justified in fixing the monthly income notionally for calculation purpose, we are of the view that the grievance of the appellant that fixation of the monthly income notionally at `4,000/- is on the lower side requires consideration. The accident occurred on 23.11.2008 and **M.A.C.A.1430/2016** 4 on the date of the accident, the appellant was aged only 46 years. In such circumstances, in the light of the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236],** we are of the view that it is only proper to fix the monthly income of `6,000/- especially taking note of the fact the accident occurred four years after the accident involved in **Ramachandrappa** 's case. Accordingly, the monthly income is fixed as `6,000/-. The Tribunal took the period of loss of earning as three months. Medical records would reveal that in the accident, the appellant sustained the following injuries:- “Type I open p/3[rd] communited fracture both bone right forearm, multiple rib fracture right side, penumathra, lacerated wound right forearm, abrasion right upper chest.” Wound debridement, suturing and reduction of internal fixation with DCP for radius and squire nail for ulna were done. The appellant had been an inpatient for a period of 14 days. Ext.C1 would reveal that the the medical board assessed the permanent disability as 16%. Taking **M.A.C.A.1430/2016** 5 into account the aforesaid aspects, we are of the view that the loss of earning ought to have been 6 months instead of three months. In view of the fact that we have already fixed the monthly income as `6,000/and taking the period of loss of earning as six months, the appellant would be entitled to get `18,000/- additionally under the head 'loss of earning'. In the light of the fixation of monthly income as `6,000/and on re-assessing the compensation for permanent disability after substituting the monthly income, the appellant would be entitled to get an additional compensation of `49,920/- under that head. It is granted. Taking note of the fact that he had been an inpatient for a period of 14 days and he was hospitalized during 2008, we are inclined to fix the rate of bystander expenses as `200/- per day. In that view of the matter, the appellant would be entitled to get `1,300/additionally. In the light of discussions as above, the appellant would be entitled to get an additional compensation of `69,220/- which is rounded off to `69,250/-. The additional compensation will carry 8% interest from the date of th petition till realisation. While condoning **M.A.C.A.1430/2016** 6 the day, we have passed an order in C.M.Appln.No.1675 of 2016 to the effect that the period of delay will not be counted for interest if ultimately enhancement of compensation is granted in the appeal. In the light of the said order, the appellant would not be entitled to get interest for a period of 799 days delay occurred in the matter of filing the appeal. The third respondent is directed to deposit the amount payable in view of this judgment within two months from the date of receipt of 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.1430/2016** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.1430/2016** 8 **JUDGMENT September, 2010**