Subash v. M. Kajahussain, Ravindran & The New India Insurance Co. Ltd. (MACA No. 2052 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945** ## **MACA NO. 2052 OF 2013** **AGAINST THE ORDER/JUDGMENT DATED 09.01.2013 IN OPMV NO.803 OF 2009** ## **OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** **SUBASH AGED 27 YEARS S/O KRISHNAN, VARIYANMADAM VEEDU, ERATTAKULA P.O., PALAKKAD.** **BY ADV SRI.U.BALAGANGADHARAN** ## **RESPONDENT/RESPONDENTS:** - **1 M.KAJAHUSSAIN 30/75, POOLAKKAD, YAKKARA, PALAKKAD-678 701. (OWNER OF VEHICLE NO.KEZ-2963)** - **2 RAVINDRAN S/O SHIVAMANI, KOZHINJAMPARA, PALAKKAD-678 555(DRIVER OF VEHICLE NO.KEZ 2963)** - **3 THE NEW INDIA INSURANCE CO.LTD. PALAKKAD-678 001 (INSURER OF VEHICLE NO.KEZ-2963)** **BY ADV SRI.RENIL ANTO KANDAMKULATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A No. 2052 of 2013 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV). No.803 of 2009 on the files of Motor Accidents Claims Tribunal, Palakkad. The said claim petition was submitted by him seeking compensation for the injuries sustained in an accident that occurred on 10.10.2008. 2. According to the appellant, the accident occurred when he was travelling on a motorcycle, it was hit by a Maruti Omni Van bearing registration No.KEZ/2963, driven by the 2nd respondent in a rash and negligent manner. The said vehicle was owned by the 1st respondent and it was insured with the 3rd respondent. Due to the injuries sustained in the accident, he suffered physical disability. He was aged 26 years and was a coolie with a monthly income of Rs.3,000/-. The claim petition was submitted in such circumstances. 3. The 1st respondent filed a written statement disputing his ownership over the said vehicle. According to him, he transferred the vehicle to one Janardhanan before the accident. He also denied the negligence on the part of the 2nd respondent in driving the vehicle. It was also contended that the vehicle at the 3 M.A.C.A No. 2052 of 2013 relevant time was insured with the 3rd respondent. The 3rd respondent filed a written statement admitting the coverage of policy for the said vehicle. However, they disputed the negligence on the part of the 2nd respondent. The quantum of compensation was also disputed by them. 4. From the side of the appellants, Ext.A1 to A12 were marked and the disability certificate issued by the Medical Board was marked as Ext.X1. No evidence was adduced by the respondents. 5. After considering the materials placed on record, the Tribunal passed an award allowing a total compensation of Rs.94,500/- and since it was found that the accident occurred due to the negligence of the 2nd respondent in driving the Maruti Omni Van insured with the 3rd respondent, they were directed to deposit the said amount along with interest at the rate of 7.5% from the date of petition till realization. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 4 M.A.C.A No. 2052 of 2013 6. Heard Sri. U.Balagangadharan, the learned counsel for the appellant and Sri. Renil Anto Kandamkulathy, the learned counsel for the 3[rd] respondent. 7. The only question that arises for consideration is whether the amount awarded by the Tribunal is reasonable or not. On going through the award, it is discernible that the compensation is calculated by taking the monthly income as Rs.3,000/- and accepting the percentage of disability as 7%, which was certified as per Ext.X1. However, it is to be noted that the accident occurred in the year 2008. The monthly income of Rs.3,000/- for the year 2008, appears to be on the lower side. It is to be noted that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC** **236],** the Honourable Supreme Court was pleased to take the monthly income of an ordinary employee even without any evidence as Rs.4,500/- for the year in 2004. Thus, in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.6,000/-. While doing the said exercise, I am conscious of the fact that, the claim in this regard was only Rs.3,000/-. However, it is to be noted that, the appellant was only a coolie with no static 5 M.A.C.A No. 2052 of 2013 income. The monthly income of the appellant will vary from month to month depending upon the work he gets. Therefore, the possibility of a lesser income being shown in the claim petition is also a fact that cannot be ignored. Besides the same, the failure to properly instruct the lawyer due to the poor education and financial backwardness of the client is also a relevant factor which is to be taken care of. The above view taken by me is fortified by the decision of the Honourable Supreme Court in **Minu Rout & Another v. Satyapradyumna Mohapatra & Ors. [(2013) 10 SCC 695],** where the monthly income taken by the Honourable Supreme Court was more than what was claimed. In such circumstances, even though the learned counsel for the third respondent opposed the taking of a monthly income higher than what was claimed, I deem it appropriate to fix it as Rs.6,000/which appears to be reasonable. This is with the sole intention to ensure 'just compensation” to the victim of the accident. As far as physical disability is concerned, the Tribunal accepted 7% which is certified by the Doctor and hence the same can be accepted. Thus, while reassessing the compensation with the above criteria, the additional amount would come to Rs.42,840/- 6 M.A.C.A No. 2052 of 2013 [(6000x12x17x7%)-42840] 8. The next aspect relates to the compensation for loss of earnings. The Tribunal calculated the compensation for a period of three months. The said period appears to be reasonable. Since, I have already revised the monthly income, the appellant would be entitled for a further sum of Rs.9,000/- under the said head. 9. The Tribunal awarded Rs.15,000/ towards pain and suffering. It is discernible from the records that, the appellant sustained a fracture of left femur and abrasion of the face and right side of the neck. The appellant had undergone inpatient treatment for a period of 8 days as well. In such circumstances, a further sum of Rs.5,000/- is awarded towards pain and suffering. The amount awarded by the Tribunal towards loss of amenities was Rs.6,000/- which appears to be on the lower side. It is a fact that the appellant sustained physical disability of 7% at the young age of 26 years and he has to live with that disability for the remainder of his life. The said disability would affect the quality of his life. Therefore, a reasonable amount needs to be granted towards the loss of amenities and in the facts and circumstances of the case, I deem it appropriate to grant an amount of 7 M.A.C.A No. 2052 of 2013 Rs.9,000/- as the additional amount under the said head. Thus the total additional compensation is determined as Rs.65,840/-. (42,840+9,000+5,000+9,000). In the result, this appeal is allowed. The award dated 09.01.2013, passed by the Motor Accidents Claims Tribunal, Palakkad, in O.P(M.V) No.803/2009, is hereby modified by granting an additional compensation of Rs.65,840/- (Rupees sixtyfive thousand eight hundred and forty only) and the said amount shall be deposited by the 3rd respondent with interest at the rate of 7.5% per annum from the date of petition till realisation within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, as the delay of 153 days in filing the appeal was condoned by this Court subject to the condition that, the appellant shall not be entitled for interest for the additional amount, if any, granted, the third respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that, the claimant shall furnish the details of PAN card, Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above, within a period of two months from the receipt 8 M.A.C.A No. 2052 of 2013 of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A JUDGE** DG/rpk