Unnikrishnan v. Sujeesh Mon.K.S and The Manager, National Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 26[TH] DAY OF JUNE 2024 / 5TH ASHADHA, 1946 MACA NO. 826 OF 2019`** ``` AGAINST THE AWARD DATED 17.10.2018 IN O.P (MV) NO.611 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER :-`** ## **`UNNIKRISHNAN, AGED 55 YEARS`** ``` S/O. PARAMAN, THARAYIL HOUSE, KONATHUKUNNUP.O., CHIRATTAKUNNU DESOM, THEKKUMKARA VILLAGE, THRISSUR DISTRICT. REPRESENTED BY NEXT FRIEND AND NATURAL GUARDIAN HIS WIFE BINDU, 43 YEARS, W/O. UNNIKRISHNAN, THARAYIL HOUSE, KONATHUKUNNU P.O., CHIRATTAKUNNU DESOM, THEKKUMKARA VILLAGE, THRISSUR DISTRICT. ``` ``` BY ADV V.BINOY RAM ``` ## **`RESPONDENTS/RESPONDENTS :-`** - **`1 SUJEESH MON.K.S S/O. SUKUMARAN, KOTTOLY HOUSE, VALIYAPARAMBU, KURUVILASSERY P.O., THRISSUR DISTRICT 680 732.`** - **`2 THE MANAGER, NATIONAL INSURANCE CO. LTD., IRINJALAKUDA P.O., THRISSUR DISTRICT 680 121.`** ``` BY ADV SRI.P.G.JAYASHANKAR - SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 826 OF 2019 ``` ``` 2 ``` ## **JUDGMENT** This appeal has been filed by the claimant in O.P (MV) No.611 of 2016 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents herein are the respondents before the tribunal. 2. According to the appellant/claimant on 19.01.2016 at 05.00 pm, while the appellant was standing on the side of Kottamury – Mala public road near the post office junction, a car bearing Registration No.KL-01-BU-7291 driven by the 1[st] respondent came in a rash and negligent manner hit the petitioner. As a result, the petitioner sustained serious injuries. The appellant approached the tribunal claiming a total compensation of Rs.10,00,000/-. 3. The 2[nd] respondent insurer filed a written statement, admitting the policy, but disputing the quantum of compensation claimed. Before the tribunal, no oral evidence ``` MACA NO. 826 OF 2019 ``` ``` 3 ``` was adduced on either side. Exts.A1 to A12 were marked on the side of the appellant and Ext.B1 was marked on the side of the respondents. The tribunal, after analysing the pleadings and materials on record, awarded a sum of Rs.8,03,700/- as compensation under different heads with interest @ 8% per annum from the date of petition 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 mainly under the following heads; **Notional income/Future Prospects :-** The learned counsel for the appellant submitted that though the appellant claimed Rs.50,000/- per month, the tribunal has taken only an amount of Rs.7,500/- per month as his notional income. The learned counsel for the appellant further submitted that the ``` MACA NO. 826 OF 2019 ``` ``` 4 ``` appellant was a carpenter and due to the injuries he could not go for the work. The learned counsel relied on the judgment in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951],** and contended that the income ought to have been taken as Rs.10,500/- per month. The learned counsel could not produce any documents or adduce any evidence to prove that he was a carpenter. However, going by the judgment in **Ramachandrappa (supra)** , I am of the view that the notional income can be fixed at Rs.10,500/- per month. Ext.A11 – disability certificate shows that the injured person was having 15% disability due to the accident. Considering the submission of the learned counsel that the claimant was a carpenter, I am inclined to grant 10% future prospects to be added to the notional income fixed. **Loss of earnings :-** Though the claimant had claimed Rs.2,00,000/-, the tribunal has awarded only Rs.75,000/- for 10 months. Since the notional income has been re-fixed at Rs.10,500/-, the total compensation payable under the said ``` MACA NO. 826 OF 2019 ``` ``` 5 ``` head will be Rs.1,05,000/- (10,500x10). Therefore, there will be an additional amount of **Rs.30,000/-** under this head. **- Permanent disability :** Ext.A11 – disability certificate given by the Professor of Neurosurgery, Medical College Hospital, Thrissur revealed that the whole body disability assessed by the Doctor was 50%. But the tribunal has taken the percentage of disability as 40%. The learned counsel relied on the judgment of this Court in **Manikantan.G v. K.Janardhanan Nair & others [2021 : KER : 31478],** and **Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC]** and argued that if the tribunal had any doubt regarding the disability certificate issued by the Doctor, the tribunal ought to have referred the injured to a Medical Board and obtained a further certificate. But the tribunal has failed to do the same. Hence, I am inclined to accept the percentage of disability at 50% as assessed in Ext.A11. It is revealed from the Ext.A11- disability certificate that he had suffered head injuries and was disoriented **,** his attention and calculation ability was also reduced. The learned standing counsel submitted that Ext.A11 ``` MACA NO. 826 OF 2019 ``` ``` 6 ``` cannot be relied upon completely because the certificate is issued after two years of the accident. Even on perusal of Ext.A11, though it is issued after two years, the Doctor has assessed the disability as 50%. Considering all these facts, I am of the opinion that 10% functional disability shall also be added to the permanent disability of 50%. Thus, the total percentage of disability is assessed at 60%. Accordingly, the compensation awarded under the head permanent disability has been recalculated. Therefore, the total compensation payable under the said head will be Rs.9,14,760/- (11,550x12x11x60/100). The tribunal has already awarded Rs.4,35,600/-. Therefore, there will be an additional amount of **Rs.4,79,160/-** under the said head. ## **- Compensation for loss of amenities in life :** Though the claimant has sought for an amount of Rs.2,00,000/-, the tribunal has awarded only an amount of Rs.50,000/- under the head. Considering the injuries sustained and the avocation of the claimant, I find that a total amount of Rs.75,000/- would be just and reasonable under the head. Thus, there will be an additional amount of **Rs.25,000/-** under the said head. ``` MACA NO. 826 OF 2019 ``` ``` 7 ``` 6. Though the learned counsel for the appellant has sought enhancement of compensation under the other heads, I am of the opinion that the compensation awarded by the tribunal appears to be just and reasonable. Hence, I am not inclined to interfere with the compensation awarded under the other heads. 7. Thus, the impugned award of the tribunal is modified as follows; |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**claimed**|**Amount**<br>**awarded by**<br>**the**<br>**tribunal**|**Modifed in**<br>**appeal**|**Total**<br>**compensation**| |---|---|---|---|---|---| |**1**|**Loss of**<br>**earnings**|**2,00,000**|**75,000**|**30,000**|**1,05,000**| |2|Transportation<br>expenses|25,000|5,000|(not<br>modifed)|5,000| |3|Extra<br>nourishment|25,000|2,000|(not<br>modifed)|2,000| |4|Damage to<br>clothing|25,000|1,000|(not<br>modifed)|1,000| |5|Hospitalization<br>expenses|50,000|Nil|Nil|Nil| |6|Medical expenses|3,00,000|1,30,900|(not<br>modifed)|1,30,900| |7|Pain and sufering|2,00,000|1,00,000|(not<br>modifed)|1,00,000| |**8**|**Permanent**<br>**disability**|**8,00,000**|**4,35,600**|**4,79,160**|**9,14,760/-**| |**9**|**Loss of**<br>**amenities**|**2,00,000**|**50,000**|**25,000**|**75,000**| |10|Loss of earning<br>power|10,00,000|Nil|Nil|Nil| ``` MACA NO. 826 OF 2019 ``` ``` 8 ``` |11|Attendant<br>expenses|1,00,000|Nil|4,200|4,200| |---|---|---|---|---|---| |12|Anticipated<br>medical expenses|1,00,000|Nil|Nil|Nil| ||**TOTAL**|**30,25,000**<br>**Limited**<br>**to**<br>**10,00,000**|**8,03,700**|**5,34,160**|**13,37,860**| Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of **Rs.5,34,160/-** (Rupees five lakhs thirty four thousand one hundred and sixty 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 ``` MACA NO. 826 OF 2019 ``` ``` 9 ``` amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. Sd/- **SHOBA ANNAMMA EAPEN JUDGE** ## **SMA**