Sunil Kumar v. New India Assurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`** ``` FRIDAY, THE 5[TH] DAY OF JULY 2024 / 14TH ASHADHA, 1946 ``` ## **`MACA NO. 3074 OF 2019`** ``` AGAINST THE AWARD DATED 22.05.2019 IN OPMV NO.991 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM APPELLANT/PETITIONER: ``` ``` SUNIL KUMAR AGED 40 YEARS S/O. RAMANKUTTY, VARIAMPADATH HOUSE, THENKARA P.O., MANNARKKAD, PALAKKAD. BY ADVS. JACOB SEBASTIAN SRI.K.V.WINSTON ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` NEW INDIA ASSURANCE CO.LTD N.S. TOWERS, 1ST FLOOR, NEAR STADIUM BUS STAND, COIMBATORE ROAD, PALAKKAD 678 001. BY ADVS. ALEXY AUGUSTINE SMT. LATHA SUSAN CHERIAN -SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3074 OF 2019 ``` ``` 2 ``` ## **JUDGMENT Dated this the 5[th] day of July, 2024** This appeal has been filed by the claimant in OP(MV) No.991 of 2016 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondent herein was the 3[rd] respondent before the Tribunal. 2. According to the appellant, on 19.03.2013, at about 8.30 a.m., while he was riding a motorcycle through Palakkad – Mannarkkad Public road, an autorickshaw bearing registration No.KL-50/B-8531 driven by the first respondent in the original petition, in a rash and negligent manner with excessive speed, hit against the motorcycle and as a result, the appellant sustained serious injuries. The appellant approached the Tribunal claiming a total compensation of ₹36,06,000/-, which is limited to Rs.35,00,000/-. 3. The respondent-insurer filed a written statement, admitting the insurance policy, but disputing the quantum of compensation claimed. Before the Tribunal, PWs 1 and 2, the doctors in the Medical Board who issued Ext.A1, are examined. Exts.A2 to A15 were marked on consent. The ``` MACA NO. 3074 OF 2019 ``` ``` 3 ``` Tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹12,04,870/- as compensation under different heads with interest @ 9% per annum from the date of petition, i.e, 29.12.2016, till realization, against the respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellant claims enhancement under the following heads:- ## **I.Notional income** The learned Counsel for the appellant submits that he was working as a Mobile Phone Tower Technician and was earning a monthly income of ₹20,000/- per month. However, no evidence was adduced to prove the avocation of the appellant. The Tribunal had awarded an amount of ₹5,500/- towards his notional income. Following the judgment in **Ramachandrappa** **v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.** **[2011 (13) SCC 236],** the income ought to have been fixed at ₹9,000/- per month, since the accident was in the year ``` MACA NO. 3074 OF 2019 ``` ``` 4 ``` 2013. Hence, I re-fix the notional income at **₹9,000/-** per month. ## **II. Loss of earnings** It is submitted by the learned counsel for the appellant that no amount was granted by the Tribunal under the said head while passing the award. Since the notional income is refixed at ₹9,000/- per month and considering the nature of the injuries as well as avocation of the appellant, I find that a period of six months can be taken for awarding compensation under the head loss of earnings. Accordingly, the total compensation payable under the said head will be ₹ **54,000/-** (Rupees Fifty Four Thousand Only). ## **III. Extra nourishment and bystander expenses** It is submitted that the appellant was aged 38 years at the time of accident and had to undergo 56 days’ in-patient treatment. The Tribunal had granted only an amount of ₹200/per day under the said heads. Considering the injuries sustained by the appellant as well as the period of hospitalization, I find that an amount of ₹300/- per day can be taken under each head. Hence, the total amount payable under ``` MACA NO. 3074 OF 2019 ``` ``` 5 ``` the heads will be ₹16,800/- each. Thus there will be an additional amount of **₹5,600/-** (Rupees Five Thousand Six Hundred Only) under each head. ## **IV. Compensation for disability** Since the notional income is re-fixed at ₹9,000 per month, the compensation payable under the said head has to be recalculated. The appellant is also entitled to get 40% future prospects added to his notional income for the purpose of assessing compensation for permanent disability. Thus, adding future prospects of 40% to the refixed notional income, the amount will be Rs.12,600/- (9000 + 3600). Accordingly, the compensation under the said head is re-calculated, totalling to an amount of ₹13,15,440/- (12,600x 12 x 15 x 58%). Thus, there will be an additional amount of **₹7,41,240/-** (Rupees Seven Lakh Forty One Thousand Two Hundred and Forty Only) under the said head. ## **V. Compensation for pain and suferings and compensation for loss of enjoyment and amenities of life** Considering the nature of the injuries and the disability suffered by the appellant, I find that an additional amount of **₹5,000/-** (Rupees Five Thousand Only) each can be granted ``` MACA NO. 3074 OF 2019 ``` ``` 6 ``` ## under the said heads. 6. Though the appellant claimed enhancement of compensation under other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the Tribunal under other heads since it appears to be just and reasonable. Thus the impugned award is modified as under:- |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded by<br>the tribunal<br>(in Rs.)|Amount<br>modifed<br>in appeal<br>(in Rs.)|Total<br>compensation| |---|---|---|---|---|---| ||**Notional income**|||**5,500**|**9,000**| |1|**Loss of earnings**|||**54,000**|**54,000**| |2|Transportation<br>expenses|60,000|3,000|(not<br>modifed)|3,000| |**3**|**Extra**<br>**nourishment**|**20,000**|**11,200**|**5,600**|**16,800**| |**4**|**Bystander**<br>**expenses**|**5,000**|**11,200**|**5,600**|**16,800**| |5|Damage to<br>clothing and<br>articles|1,000|1,000|(not<br>modifed)|1,000| |6|Medical expenses|7,00,000|504270|(not<br>modifed)|5,04,270| |7|Future treatment<br>expenses|3,00,000|0||| |**8**|**Compensation**<br>**for pain and**<br>**sufering**|**2,00,000**|**50,000**|**5,000**|**55,000**| |9|**Compensation**|**3,00,000**|**50,000**|**5,000**|**55,000**| ``` 7 ``` ## **`MACA NO. 3074 OF 2019`** ||**for loss of**<br>**enjoyment in life**||||| |---|---|---|---|---|---| |**10**|**Compensation**<br>**for disability**|**10,00,000**|**5,74,200**|**7,41,240**|**13,15,440**| |11|Compensation for<br>loss of earning<br>power|10,00,000|0||| ||**Total (claim**<br>**limited to)**|**36,06,000**<br>**35,00,000**|**12,04,870**|**8,16,440**|**20,21,310**| Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of **₹8,16,440/- (Rupees Eight Lakh Sixteen Thousand Four Hundred and Forty Only)** over and above the compensation awarded by the Tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the Tribunal. Upon such deposit being ``` MACA NO. 3074 OF 2019 ``` ``` 8 ``` made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. **Sd/SHOBA ANNAMMA EAPEN JUDGE** RK