## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.NAGARESH**
**THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942**
## **MACA.No.1636 OF 2015(B)**
**AGAINST THE AWARD IN OP(MV) 294/2013 DATED 16-04-2015 OF**
**MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM**
## **APPELLANT/PETITIONER:**
**SREESAN,AGED 45 YEARS,S/O.PURUSHOTHAMAN NAIR, SREE-NILAYAM,THEVARU VEETTIL,NEDUMPURA POST, PANNIADI,CHERUTHURUTHI,TALAPPILLY TALUK, THRISSUR DISTRICT.**
## **BY ADV. SRI.R.SREEHARI**
## **RESPONDENTS/RESPONDENTS:**
**1 SHAFEEL,S/O.NAZEER,EDAPPARAMHIL HOUSE, KALLADIPATTA POST,ONGALLUR,PATTAMBI TALUK, PALAKKAD DISTRICT PIN 679 303 (STRUCK OUT)***
**(THE FIRST RESPONDENT IS STRUCK OUT FROM THE PARTY ARRAY AT THE RISK AND COST OF THE APPELLANT AS PER ORDER DATED 16/10/19 IN IA NO.1/19).**
- **2 NAZIR,S/O.KUNJAPPU,EDAPPARAMHIL HOUSE, KALLADIPATTA POST,ONGALLUR,PATTAMBI TALUK, PALAKKAD DISTRICT PIN 679 303.**
- **3 UNITED INDIA INSURANCE CO.LTD., BRNCH OFFICE: PARAPPURATH TOWER, MAIN ROAD,OTTAPALAM POST 679 101.**
**R2 BY ADV. SRI.A.HAROON RASHEED R3 BY ADV. SRI.N.J.MOHAMMED USMAN**
## **SRI JOHN JOSEPH VETTIKKAD**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2020, THE COURT ON 04-06-2020 DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
~ ~ ~ ~ ~ ~ ~ ~ ~
## _**Dated this the 4[th] day of June, 2020**_
Aggrieved by the Award in OP(MV) No. 294/2013 of the Motor Accidents Claims Tribunal, Ottapalam, the petitioner therein has filed this appeal.
2. According to the appellant-petitioner, on 11.01.2013, while the appellant was driving his motorcycle from Pattambi to Nedumpura, another motorcycle driven by the 1[st] respondent in a rash and negligent manner came from opposite direction and hit the appellant's motorcycle. The appellant sustained serious injuries and was taken to Sevana Hospital, Pattambi. The accident occurred due to the negligence of the 1[st] respondent. The 2[nd] respondent is the owner of the offending vehicle and the 3[rd] respondent is its Insurer. In OP(MV) No.294/2013, the appellant claimed ₹5,00,000/- as compensation from respondents 1 to 3.
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3. The 3[rd] respondent alone contested the petition. The 3[rd] respondent stated that it was the rash driving by the appellant himself which caused the accident. The 3[rd] respondent, though admitted the policy coverage of the offending vehicle, contended that the compensation claimed by the appellant under different heads, is excessive.
4. The appellant produced Exts.A1 to A12 documents. The Tribunal, after appreciating the materials on record, passed an Award granting a compensation of ₹1,44,200/- to the appellant under the following heads:-
|**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-vital details in a**<br>**nut shell**|
|---|---|---|---|---|
|1|Loss of earning (Total)|25,000|24,000|6000 x 4|
|2|Loss of earning (Partial)|35,000|Nil|Not proved|
|3|Medical and miscellaneous<br>expenses|1,50,000|67,700|Medical bills worth<br>`67,645/- rounded to<br>`67,700/-|
|4|Future Treatment|50,000|Nil|Not proved|
|5|Bystander expenses|10,000|2,000|Hospitalisation for 10 days<br>200 x 10|
|6|Transportation expenses|2,000|3,000|Reviews and admissions<br>in the hospital|
|7|Extra Nourishment|5,000|2,000||
|8|Damage to clothing etc.|1,000|500||
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|**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-vital details in a**<br>**nut shell**|
|---|---|---|---|---|
|9|Pain and Suffering|75,000|30,000|Type III B open fracture<br>Rt. distal femur with<br>severe comminution, volar<br>barton fracture left,<br>undisplaced fracture lower<br>pole patella Rt., lacerated<br>wound scalp, lacerated<br>wound anterio lateral<br>aspect of knee 10 x 5 cm<br>with severe<br>contamination, protruded<br>bone.|
|10|Loss of dependency|–|–||
|11|Loss of expectation of life|–|–||
|12|Loss of love and affection|–|–||
|13|Compensation for loss of<br>service|–|–||
|14|Loss of earning power|50,000|Nil|Not proved|
|15|Loss of enjoyment and<br>amenities of life|50,000|15,000||
|16|Compensation for continuing<br>partial or permanent<br>disability|75,000|Nil|Not proved|
||TOTAL|5,28,000|**1,44,200**||
||Limited to|5,00,000|||
Respondents 1 to 3 were found jointly and severally liable to
pay the compensation. Interest at the rate of 9% per annum was also directed to be paid from the date of the petition till the date of realisation.
5. The learned counsel for the appellant argued that the appellant was a Tea shop owner earning ₹45,000/- per
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month. The appellant was hospitalised for 10 days. The Tribunal assessed the monthly income of the appellant as ₹6,000/- only. The amount of income so assessed is too less and substantial enhancement is required. The learned counsel for the appellant further submitted that the Tribunal granted compensation for loss of earning only for a period of 4 months. Ext.A11 discharge summary would show that the appellant would have required more than four months period to resume his avocation. The learned counsel also contended that the compensation awarded towards by-stander expenses and extra nourishment is also on a lower side. The Tribunal granted only ₹500/- as compensation towards damage to clothing. The amount awarded by the Tribunal for pain and suffering and loss of amenities, is also much on a lower side. Therefore, substantial enhancement is necessary in the compensation awarded by the Tribunal.
6. The learned Standing Counsel for the 3[rd] respondent argued that the appellant did not produce any
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proof in support of his claimed income of ₹45,000/- per month. Therefore, the Tribunal is fully justified in arriving at ₹6,000/- as monthly income of the appellant, who was only a tea shop owner. The Standing Counsel further argued that there is nothing on record to show that the appellant would have taken more than four months to resume his normal avocation. Therefore, there is no need to enhance the period of loss of earning either. As regards bystander expenses and extra nourishment, the Standing Counsel fairly submitted that Court has to go by the guidelines given by the Apex Court in this regard. The Tribunal has granted sufficient amount towards compensation for pain and suffering and loss of amenities.
7. I have heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent.
8. The accident in question occurred on 11.01.2013 and the appellant was 43 years old at the time of accident. The appellant claimed that he being a Tea shop owner, is in
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receipt of a monthly income of ₹45,000/-. It is to be noted that the appellant did not adduce any documentary proof in respect of his income, nor did he give any oral evidence in the OP(MV). Therefore, the appellant cannot claim that his monthly income should have been taken as ₹45,000/-. In the judgment of the Apex Court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735],_ the Apex Court reckoned the income of a vegetable vendor who met with a road accident in the year 2008 at the age of 24 years, notionally as ₹6,500/-. The Apex Court held that a person doing his own business cannot be expected to produce documents to prove his monthly income. Going by the same criteria, the monthly income of appellant who is a self employed Tea-vendor should be taken at least as ₹9,000/- per month, since the accident occurred in the year 2013. The fact being so, this Court is of the opinion that the fixation of monthly income as ₹6,000/- by the Tribunal is much on a lower side. The appellant's monthly income in the year 2013 can be
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reasonably taken as ₹9,000/-. Consequently, the appellant will be eligible for an additional compensation of ₹30,000/towards loss of earning (₹9,000/- x 6 minus ₹24,000/already awarded by the Tribunal).
9. As regards compensation towards by-stander expenses, the Tribunal has awarded only ₹2,000/-. Taking note of the fact that the accident occurred in the year 2013, the bystander expenses is to be compensated at least at the rate of ₹250/- per day. The appellant was hospitalised for 10 days. Therefore, the appellant will be entitled to an additional compensation of ₹500/- towards bystander expenses. The Tribunal has awarded ₹2,000/- towards extra nourishment. Since the hospitalisation is for 10 days, the amount of 2,000/- awarded is just and proper.
10. Towards damage to clothing etc., the Tribunal awarded only ₹500/-, though the appellant claimed a higher amount. Taking note of the year of the accident, the appellant will be entitled to an additional compensation of
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₹750/- towards damage to clothing etc.
11. The Tribunal has awarded ₹30,000/- towards compensation for pain and suffering and ₹15,000/- towards loss of amenities of life. This Court finds that the amounts so awarded by the Tribunal are just and reasonable and no enhancement is warranted under those heads.
In the result, the appeal is allowed in part. The appellant is held eligible for an additional compensation of ₹31,250/-. The additional compensation will also carry interest at the rate of 9% per annum from the date of OP(MV) till the date of realisation. Respondents 1 to 3 shall pay the compensation awarded within one month.
Sd/- **N. NAGARESH, JUDGE**
aks/02/06/2020
