Subash S/o Vijayan v. M.R. Sreedhar and The Divisional Manager, New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944 MACA NO. 97 OF 2012** **AGAINST THE AWARD IN OP(MV)NO.1167/2004 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, NEYYATTINKARA** ## **APPELLANT/APPLICANT :** **SUBASH S/O.VIJAYAN, SUBASH BHAVAN, PATTYAKKALA, VENPAKAL P.O., THIRUVANANTHAPURAM DISTRICT.** **BY ADV SRI.G.SUDHEER** ## **RESPONDENTS :** **1 M.R.SREEDHAR, KESAVAPURATHU VEEDU, MULLOOR P.O., THIRUVANANTHAPURAM DISTRICT-695521. 2 THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, THIRUVANANTHAPURAM-695001. BY ADV SMT.A.SREEKALA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.97 of 2012 ..2.. ## **MACA No.97 of 2012** ## **-----------------------------------------------** ## **J U D G M E N T** This is an appeal filed under Section 173 of the Motor Vehicles Act by the petitioner in O.P. (MV)No.1167 of 2004 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara aggrieved by award dated 28.04.2010. The respondents herein are the respondents 1 and 3 before the Tribunal. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the insurance company. 3. Brief facts of the case are as follows: The allegation of the appellant is that on 24.01.2004 at 5.45 p.m., when he was riding a MACA No.97 of 2012 **==> picture [46 x 8] intentionally omitted <==** motorcycle with another as pillion rider, along the Balaramapuram-Mukkola public road, another scooter ridden by the first respondent in a rash and negligent manner hit against the front portion of the motorcycle of the appellant and the appellant sustained injuries and multiple fractures and he underwent treatment for the same. 4. R3 filed written statement disputing the accident and negligence, while admitting policy. Quantum also was disputed. 5. The Tribunal tried this case along with O.P.(MV)No.1168 of 2004. The Tribunal examined PW1 and marked Exts.A1 to A24 series on the side of appellant as well as the petitioner in the other original petition and Ext.B1 policy marked on the side of the insurance company. After appraising the evidence, MACA No.97 of 2012 **==> picture [46 x 8] intentionally omitted <==** Rs.58,200/- was granted by the Tribunal along with 7.5% interest as against the claim of Rs.2,00,000/-. 6. The learned counsel for the appellant submitted that the Tribunal marginally lowered the monthly income of the appellant at Rs.2,500/-, though he had claimed that he was earning Rs.5,000/- per month as a lorry driver. 7. As far as the income is concerned, Rs.4,500/- can be fixed following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** in this matter involving accident is of the year 2004 where, no convincing evidence forthcoming to establish the monthly income at Rs.5,000/- as claimed. 8. The learned counsel for the appellant also canvassed enhancement under the heads disability MACA No.97 of 2012 ..5.. income, pain and sufferings and loss of amenities. 9. According to the learned counsel for the appellant, as per Ext.A4 disability certificate issued by Dr.M.Ganesh, Medical College Hospital, Thiruvananthapuram dated 10.02.2010, 10% disability was assessed and the Tribunal accepted the same at 6%. 10. It is submitted by the learned counsel for the insurance company that, since 10% disability assessed as per Ext.A4 is on higher side, the Tribunal reduced the same to 6%, after considering the injuries and consequential treatment. 11. In this matter, Ext.A3 is the treatment certificate issued by Dr.K.C.Laly, Medical College Hospital, Thiruvananthapuram. As per Ext.A3, fracture nasal bone and fracture right maxilla were diagnosed MACA No.97 of 2012 ..6.. and treated for a period of six days from 21.04.2004 to 26.04.2004. But in the disability certificate, frontal bone fracture and loss of two incisors etc. were narrated, though no such finding could be gathered from the treatment certificate. 12. Having considered the above facts, I am of the view that 6% disability fixed by the Tribunal is reasonable. However, loss of earnings as well as loss of disability income require re-calculation based on Rs.4,500/- as the monthly income. In this matter, the Tribunal granted loss of earnings for a period of two months. The same is re-calculated at the rate of Rs.4,500/- for a period of three months as under; 4,500x3=13,500/- Out of which, Rs.5,000/- was granted by the Tribunal. 13,500-5,000 = **Rs.8,500/-** more is granted MACA No.97 of 2012 ..7.. under the head loss of earnings. 13. The loss of disability income is also recalculated as under; 4,500x12x17x6%=55,080/- Out of which, Rs.30,600/-was granted by the Tribunal. Rs.55,080-30,600= **Rs.24,480/-** more is granted under the head loss of disability income. 14. Towards pain and suffering, Rs.10,000/was granted by the Tribunal. Considering the multiple fractures, **Rs.8,000/-** more is granted towards pain and sufferings. Towards loss of amenities, Rs.8,000/- was granted by the Tribunal. The same also stands increased by **Rs.7,000/-** more. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of **Rs.47,980/-** (Rupees Forty MACA No.97 of 2012 ..8.. Seven Thousand Nine Hundred and Eighty only) at the rate of 7.5% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 494 days wherein, grant of interest was specifically disallowed by the order in C.M.Application No.134 of 2012 dated 25.01.2012. The insurance company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same. Sd/- **A.BADHARUDEEN, JUDGE** rkj