Tinu P. Varghese v. Leela Joy and Others

``` MACA NO. 1057 OF 2015 ``` ``` 1 ``` ``` 2024:KER:59942 ``` **==> picture [58 x 58] intentionally omitted <==** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 1 [ ST ] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 MACA NO. 1057 OF 2015 ``` ``` AGAINST THE AWARD DATED 03.03.2014 IN OP(MV) NO.2254 OF 2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` TINU P.VARGHESE, AGED 23 YEARS, S/O.P.V.VARGHESE, 2/214, PURAPARAMBIL HOUSE, MALANKARA CHURCH ROAD, KUREEKAD P.O., CHOTTANIKKARA, COCHIN-682305. ``` ``` BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 LEELA JOY, W/O.JOY, 10/608, KATTASSERIL HOUSE, VADAVUCODE.P.O.-682310, PUTHENCRUZ.`** - **`2 C.N.RAJESH, S/O.NARAYANAN C.K., CHOOZHIKARA HOUSE, MULLAKANAM, RAJAKKAD P.O.-685566.`** - **`3 THE NATIONAL INSURANCE COMPANY LTD. BRANCH OFFICE, SHANTHI PARK, N.H.49, KOLENCHERY-682311.`** - **`4 THE UNITED INDIA INSURANCE COMPANY LTD. BRANCH OFFICE, TRIPUNITHURA-682301.`** ``` BY ADVS. P.G.GANAPPAN K.SHERIN MOHAN AGINOV MATHAPPAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1057 OF 2015 ``` ``` 2 ``` ``` 2024:KER:59942 ``` **==> picture [58 x 58] intentionally omitted <==** ## **J U D G M E N T** This appeal is at the instance of the claimant in OP(MV)No.2254 of 2009 on the file of Motor Accidents Claims Tribunal, Ernakulam, impugning the award on the ground of inadequacy of compen sation. 2. On 26.03.2009, at 4.00 p.m., while the appellant/claimant was riding a motorcycle, through Vattekunnu - Kandanad road, he was knocked down by KL-07/AK-5361 tipper lorry, driven by the 2nd respondent, in a rash and negligent manner. He sustained severe injuries, including head injury. He was hospitalised for ten days. He was an 18 year old Plus Two student at the time of accident. He approached the Tribunal claiming compensation of Rs.5,00,000/-. But learned Tribunal awarded only Rs.2,07,800/-. Hence this appeal. 3. The 2nd respondent was the driver, 1st respondent was the owner and 3rd respondent was the Insurer of the offending tipper lorry. The 4th respondent was the Insurer of the motorcycle of the appellant. Learned Tribunal, on ``` MACA NO. 1057 OF 2015 ``` ``` 3 ``` **==> picture [58 x 58] intentionally omitted <==** `2024:KER:59942` analysing the facts and evidence, found that the accident occurred due to the rash and negligent driving of the tipper lorry by the 2nd respondent, and since that vehicle was validly insured with the 3rd respondent-National Insurance Company, the liability to compensate the claimant was fixed on the 3rd respondent. 4. In the appeal, the 3rd respondent entered appearance and admitted the accident as well as the Policy. But according to them, the compensation awarded by the Tribunal is just and reasonable and hence it needs no modification. 5. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. 6. Heard learned counsel for the appellant and learned counsel for the 3rd respondent-Insurer. 7. Learned counsel for the appellant submitted that the appellant was a Plus Two student aged 18 years, who suffered severe head injury and lost his classes due to the injuries suffered. Learned Tribunal fixed his notional income @ Rs.3,000/- only, finding that he was not earning any income. ``` MACA NO. 1057 OF 2015 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 4 ``` ``` 2024:KER:59942 ``` Learned counsel for the appellant would rely on the decision **National Insurance Co. Ltd., Chennai v. Fathimath Zuhara @ Zuhra Razak and Another [2016 KHC 691]** , in which, a Division Bench of this Court adopted monthly income of Rs.12,000/- for a 19 year old boy, who lost his life in a road traffic accident. On going through that decision, it could be seen that the deceased in that case was an Engineering student, at the time of accident. In the case on hand, the injured was a Plus Two student. So this Court is inclined to take a notional income of Rs.10,000/- for the injured. 8. Learned Tribunal awarded Rs.10,000/- towards loss of studies. Since he was a Plus Two student, who suffered severe head injury, which resulted in 10% disability as reported by the Medical Board, this Court is inclined to award Rs.10,000/more towards loss of studies, as he would have to expend money for tuition classes to make up his studies. 9. Towards transportation expenses, learned Tribunal awarded only Rs.1,000/-. This Court is inclined to award Rs.1,000/- more on the basis of the submission made by learned counsel for the appellant that even after discharge ``` MACA NO. 1057 OF 2015 ``` ``` 5 ``` **==> picture [58 x 58] intentionally omitted <==** `2024:KER:59942` from the hospital, he had to go to hospital for periodic review. 10. Towards extra nourishment, learned Tribunal awarded only Rs.2,000/-. This Court is inclined to award Rs.2,000/more as the injuries he had suffered were on the face and head, which may cause difficulty to him, for taking normal food. 11. Towards bystander expenses also, this Court is inclined to award Rs.2,500/- more, as he might have been in need of an attendant even after discharge from hospital considering the nature of injuries and disability suffered by him. 12. Towards pain and suffering, learned Tribunal awarded only Rs.30,000/- against his claim of Rs.50,000/-. Taking into account the nature of injuries suffered and the period of hospitalisation, this Court is inclined to award Rs.10,000/more under the head ‘pain and suffering’. 13. Ext.C1 Disability Certificate shows that the Medical Board assessed his disability as 10%, including neuro disability. We have fixed his notional income as Rs.10,000/-. The multiplier applicable is 18. So, the disability compensation ``` MACA NO. 1057 OF 2015 ``` ``` 6 ``` **==> picture [58 x 58] intentionally omitted <==** `2024:KER:59942` can be assessed as Rs.2,16,000/- (10,000x12x18x10/100). After deducting Rs.64,800/- awarded by the Tribunal, he is entitled to get balance Rs.1,51,200/-. 14. No amount was seen awarded by the Tribunal, towards loss of amenities or disfiguration. Learned counsel for the appellant would submit that the appellant had suffered disfiguration. But no supporting documents are produced. Ext.C1 certificate shows that there was 5 cm long scar on left proximal phalanx and he had suffered 10% of disability, including neuro disability. Considering that aspect, this Court is inclined to award Rs.10,000/- under the head ‘loss of amenities and disfiguration’ due to the scar. 15. The compensation awarded by the Tribunal under all other heads seems to be reasonable and hence it needs no modification. |modification.|||| |---|---|---|---| |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |Loss of studies|Rs.10,000/-|Rs.20,000/-|Rs.10,000/-| |Transportation<br>expenses|Rs.1,000/-|Rs.2,000/-|Rs.1,000/-| ``` MACA NO. 1057 OF 2015 ``` ``` 7 ``` ``` 2024:KER:59942 ``` **==> picture [58 x 58] intentionally omitted <==** |**`NO. 1057 OF 2015`**|**`7`**||`2024:KER:59942`| |---|---|---|---| |Extra nourishment|Rs.2,000/-|Rs.4,000/-|Rs.2,000/-| |Bystander expenses/<br>Attendant expenses|Rs.2,500/-|Rs.5,000/-|Rs.2,500/-| |Pain and suffering|Rs.30,000/-|Rs.40,000/-|Rs.10,000/-| |Compensation for<br>permanent disability|Rs.64,800/-|Rs.2,16,000/-|Rs.1,51,200/-| |Loss of amenities<br>and disfiguration|……|Rs.10,000/-|Rs.10,000/-| |Total|||**Rs.1,86,700**/-| 16. In the result, the appellant is entitled to get enhanced compensation of Rs.1,86,700/-. 17. The 3rd respondent-Insurer (National Insurance Co. Ltd.) is directed to deposit Rs.1,86,700/- (Rupees One Lakh Eighty Six Thousand and Seven Hundred only) with 7% interest per annum, from the date of petition till the date of deposit (excluding 208 days of delay in filing the appeal), before the Motor Accidents Claims Tribunal, Ernakulam, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant, after deducting the liabilities, if any, towards tax, balance court fee and legal benefit fund. ``` MACA NO. 1057 OF 2015 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2024:KER:59942 ``` The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-