Sobheendran v. Shajna, Abdul Azeez V.K. and United India Insurance Company Ltd.

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 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938 ## MACA.No. 498 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 671/2009 of II ADDL. MACT, KOZHIKODE DATED 05-02-2011 APPELLANT(S):CLAIMANT ----------------------------- SOBHEENDRAN, S/O.VASU AGED 46 YEARS OTTAPILAKKANDI THAZHATH, KANNANGARA, KANDANNUR P.O.KANNANKARA, KOZHIKODE BY ADV. SMT.K.V.RASHMI RESPONDENT(S):RESPONDENTS ---------------------------------- 1. SHAJNA, W/O.HUMAYOON KABEER 5/195, KEZHAKKUMPARAMBIL HOUSE P.O.PUDUPPADY, KOZHIKODE-673586 2. ABDUL AZEEZ V.K. S/O.AHAMMED V.K. VALLIKKOTTUMMAL HOUSE P.O.PUDUPPADY, KOZHIKODE-673586 3. UNITED INDIA INSURANCE COMPANY LTD. VELIMANNA BUILDING, MAIN ROAD THAMARASSERY-673573 KOZHIKODE DIST. R3 BY ADV. SMT.S.JAYASREE R3 BY ADV.SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** ## **========================== M.A.C.A. No.498 OF 2012** **==========================** Dated this the 21[st] day of November, 2016 ## **JUDGMENT** _Ravikumar, J._ The victim of a motor vehicle accident preferred this appeal on being aggrieved by and dissatisfied with the quantum of compensation granted by the Additional Motor Accidents Claims Tribunal-II, Kozhikode in O.P.(MV).No.671/2009. He filed the said claim petition under section 166 of the Motor Vehicles Act claiming a total compensation of `2,00,000/-. The Tribunal, as per the impugned award, granted a total compensation of `77,263/- with interest at 7% from the date of the petition till realisation. 2.Obviously, there is no dispute regarding the liability to indemnify the insured-owner. The accident is also not disputed. In **M.A.C.A.498/2012** 2 such circumstances, the question to be considered is regarding the entitlement of the appellant to get enhanced compensation and in such circumstances, we do not think it essential to issue notice to respondents 2 and 3 and consequently, issuance of notice to respondents 2 and 3 is dispensed with. Taking note of the issues to be resolved in this appeal, we ween that they can be decided at the admission stage itself. 3.We have heard the learned counsel for the appellant and Smt.S.Jayasree, the learned counsel appearing for the insurance company. The main grievance of the appellant is that the Tribunal had erroneously fixed the monthly income as `3,000/- ignoring the averments regarding the occupation and income taken up in the claim petition. It is further submitted that though Ext.C1 disability certificate would reveal that the injuries sustained by the appellant in the accident resulted in permanent disability, the Tribunal did not grant any amount towards 'loss of amenities'. It is further submitted **M.A.C.A.498/2012** 3 that the compensation granted under the heads 'extra nourishment', 'pain and suffering', 'bystanders expenses' etc. is also on a lower side. In such circumstances, it is submitted that compensation granted under the aforesaid heads require an upward modification. 4.The learned counsel for the third respondent-insurance company submitted that the appellant had failed to establish his averments regarding the occupation and income and therefore, fixation of the monthly income as `3,000/- notionally by the Tribunal cannot be said to be faulty or irregular warranting an interference. The learned counsel further submitted that the entire disability certified under Ext.C1 was taken into account by the Tribunal for calculation purpose and therefore, the appellant had not made any ground warranting appellate interference. 5.We have heard the rival submissions. We are of the view that an appellate interference is required in this case. True that the **M.A.C.A.498/2012** 4 appellant had failed to establish his averments regarding occupation and income taken up in the claim petition. But at the same time, that by itself is no reason for fixing the monthly income notionally without taking into account the relevant factors for calculation purpose. The accident in question occurred on 14.1.2009 and the appellant was then aged 44 years. In such circumstances, we are of the view that the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** ought to have been taken as guidance in the matter of fixation of monthly income. In that case, in respect of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income as `4,500/-. The accident involved in this case occurred about five years since the accident involved in **Ramachandrappa** 's case. Taking into account the aforesaid factors, we are of the view that it is only proper to fix the monthly income of the appellant as `5,500/-. Accordingly, it is fixed. With respect to other factors relevant for the purpose of fixing compensation for permanent disability, there is no **M.A.C.A.498/2012** 5 dispute. In such circumstances, on re-assessment of compensation for permanent disability with substitution of the monthly income fixed by us notionally, the appellant will be entitled to get an additional compensation of `42,000/- (5500x12x14x10/100-50400). It is granted. Taking into account the nature of the injuries, we are of the view that the period fixed for loss of earning is too short. Ext.A2 wound certificate, A5 CT scan report and other medical records would reveal that the appellant sustained the following injuries:- Fracture of shaft of femur (R), fracture phalanx (R), middle finger, left temporal Haemorhagic contusion, multiple facial bone fracture, lacerated wound on face, left side of neck. Taking note of the aforesaid injuries, we are of the view that the period of loss of earning ought to have been six months. Accordingly, it is so fixed. Based on the fixation of the monthly income and taking the period of loss of earning as six months, the appellant will be entitled to get an additional compensation of `27,000/- (5500x66000). The appellant had been an inpatient for a period of 27 days. **M.A.C.A.498/2012** 6 Taking note of the fact that the accident occurred in the year 2009, we are of the considered view that the appellant ought to have been granted bystanders expenses at the rate of `200/- per day and extra nourishment at the rate of `100/- per day. The Tribunal had granted an amount of `2,700/ towards bystanders expenses. In the light of the rate fixed by us, the appellant would be entitled to get an additional compensation of `2,700/- under that head. Taking note of the nature of the injuries, especially, multiple facial abrasion fracture and also the fact that two of his teeth became mobile, the appellant could not have been able to take solid food at least for a considerably long period and at the same time, he must have had nutrient food during the period of hospitalisation. We are inclined to grant an additional compensation of `2,000/- towards extra nourishment. Without all peradventure, it can be taken that the appellant had experienced excruciating pain owing to the injuries. In such circumstances, we are inclined to grant `17,000/- additionally under the head 'pain and suffering'. As noticed hereinbefore, the injuries sustained in the **M.A.C.A.498/2012** 7 accident resulted in permanent disability. We have already taken note of the injuries sustained by the appellant and the extent of permanent disability incurred by him. They would constrain us to hold that the Tribunal was not justified in declining to grant compensation towards loss of amenities. We are of the view that the appellant is entitled to get `10,000/- towards loss of amenities and therefore, the said amount awarded. In the light of the discussions as above, the appellant is entitled to get an additional compensation of `1,00,700/-. It is granted. The said amount will bear 8% interest from the date of the petition till realisation. The third respondent is directed to deposit the said amount along with interest thereon within two months from the date of receipt of a 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.498/2012** 8 **M.A.C.A.498/2012** 9 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.498/2012** 10