Vijayan C. vs Manoj Kumar; Mohammed Thoufeeq; Oriental Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 ``` ## `MACA NO. 175 OF 2023` ``` [AGAINST THE AWARD DATED 23.04.2022 IN OP(MV)NO.1689/2018 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM] ``` ## `APPELLANT/PETITIONER:` ``` VIJAYAN C, AGED 61 YEARS, S/O.CHALLAPPANACHARI, THEKKEDATHU VADAKKATHIL, DESINGANADU NAGAR 27, THIRUMULLAVARAM P O, KOLLAM – 691012. ``` ``` BY ADVS.C.RAJENDRAN R.S.SREEVIDYA ``` ## `RESPONDENTS/RESPONDENTS:` - `1 MANOJ KUMAR, S/O BABU, MANGALATHU VEEDU, PERINAD P O, KOLLAM - 691 601.` - `2 MOHAMMED THOUFEEK, S/O NISARUDEEN, CHARUVILA THODIYIL, SAKTHI NAGAR 102, CHATHANAMKULAM CHERRY, MANGAD VILLAGE, MANGAD P O, KOLLAM 691 015.` - `3 THE MANAGER, ORIENTAL INSURANCE CO. LTD. 3RD FLOOR, LIC BUILDING, KOLLAM BRANCH, KOLLAM DISTRICT 691001.` ## `SMT K S SANTHI-SC` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 175 OF 2023 ``` ``` -2- ``` ## `JUDGMENT` ``` When the appellant was standing on a National Highway, he was knocked down by the ``` ``` offending vehicle, driven in a rash and ``` ``` negligent manner. He says that he suffered very ``` ``` grievous injuries, requiring hospitalisation and treatment for a long period, impeding his life ``` ``` as a Carpenter; thus constraining him to approach the Motor Accidents Claims Tribunal, Kollam (hereinafter referred to as ‘the ``` ``` Tribunal’ for short), seeking compensation for Rs.7,00,000/-, but which has been allowed only to an extent of Rs.2,77,970/-. He, therefore, assails the Award as being inadequate. ``` ``` 2.Smt.R.S.Sreevidya – learned counsel for ``` ``` the appellant, submitted that the notional income adopted by the Tribunal in favour of her ``` ``` MACA NO. 175 OF 2023 ``` ``` -3- ``` ``` client, was improper because he was earning Rs.25,000/- per month; and further that the functional disability suffered by him is much more than 7%, as has been recorded in Ext.X1 – Disability Certificate. She explained that since her client was a Carpenter and when the movement of his shoulder has been restricted to over 20 degrees, his capacity to continue in his avocation has been deeply and irreparably prejudiced. She thus prayed that the compensation awarded by the Tribunal be enhanced. ``` ``` 3. Smt.K.S.Santhi – learned Standing Counsel appearing for the respondent – Insurance Company, on the other hand, submitted that the computation adopted by the Tribunal is without error and thus prayed that this Appeal be dismissed. ``` ``` MACA NO. 175 OF 2023 ``` ``` -4- ``` ``` 4.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 5.I notice that the learned Tribunal has adopted the notional income of the appellant to be Rs.12,000/-, after holding that there is no evidence led by him either, through documents or orally, to establish the actual income. I cannot ``` ``` find this to be in any manner in error because, as per Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Hon’ble Supreme Court has postulated that the income of a person - which is otherwise unascertainable in the year 2016 - must be ``` ``` reckoned to be a minimum of Rs.10,500/-. Further, in Rajani v. Oriental Insurance Company ``` ``` MACA NO. 175 OF 2023 ``` ``` -5- ``` ``` Limited [2022 (5) KLT OnLine 1012 (SC)], the Hon’ble Supreme Court held that, in the case of a person engaged in a skilled avocation, a robust view has to be taken. ``` ``` 6.Obviously, adverting to the ratio in the ``` ``` aforesaid two judgments, the learned Tribunal has adopted Rs.12,000/- as the notional income of the appellant, which is more than what has been standardized inRamachandrappa (supra). I cannot find any mistake in this. ``` ``` 7.Coming to the percentile of disability, ``` ``` Ext.X1 - Certificate has been issued by a validly constituted Medical Board of the ``` ``` Government Medical College Hospital, Kollam. The ``` ``` certificate records as under: ``` ``` “Only OP treatment given for Vijayan following RTA. No fracture seen in X-Ray. He complains of pain and stiffness left shoulder. 25% restriction of movement of shoulder noted. ``` ``` 1.Terminal 20[o] restriction of abduction. ``` ``` MACA NO. 175 OF 2023 ``` ``` -6- ``` ``` 2.InternalRotationandExternal Rotation of shoulder 10[o] restricted. ``` ``` 3.Flexion, 20[o] limited. No Neurological deficit. Hand and Elbow normal. ``` ``` Permanent Disability of 7% (Seven Percent) pertaining to the Lt Upper Limb is concerned, according to the latest Govt. Gazette.” ``` ``` 8.It is thus obvious that the Medical ``` ``` Board has found that there is a small deduction ``` ``` in the external rotation of one shoulder of the ``` ``` appellant, but without any neurological defect. ``` ``` It is also stated therein that the hand and ``` ``` elbow movements of the appellant are normal. I ``` ``` cannot, therefore, hold the Tribunal in any error, in having accepted the percentile of ``` ``` disability as recorded in Ext.X1, because, prima ``` ``` facie, one cannot conclude therefrom that there ``` ``` is any permanent disability to the appellant to continue with his avocation as a carpenter. If ``` ``` he had any such contra case, he ought to have led other evidence in support, which he has not done. ``` ``` MACA NO. 175 OF 2023 ``` ``` -7- ``` ``` 9.That said, however, I notice that the Tribunal has only granted Rs.11,250/- towards compensation under the head “Bystanders ``` ``` Expenses”, after assessing that the appellant had to suffer 45 days of hospitalization. This figure has been arrived at by taking Rs.250/- as ``` ``` being the per diem expenses; but, since the accident occurred in the year 2016, I am of the view that it should have been reckoned as being at least Rs.400/- per day. In that perspective, ``` ``` the compensation under the head “Bystanders Expenses” can be justifiably enhanced to Rs.18,000/-, instead of Rs.11,250/- now granted. ``` ``` 10.That said, it is discernible from the ``` ``` impugned Award that the Tribunal has granted more than what has been asked for under the head “Pain and Suffering”; with an additional ``` ``` MACA NO. 175 OF 2023 ``` ``` -8- ``` ``` Rs.60,000/- awarded under the head “Loss of Amenities”, though not claimed. I, therefore, find no cause for the appellant under these heads. ``` ``` In the afore circumstances, this Appeal is allowed to the limited extent of enhancing the compensation under the head “Bystanders Expenses” to 18,000/- (Rupees eighteen thousand only), from Rs.11,250/- as now awarded by the Tribunal. ``` ``` In all other heads, the compensation granted by the Tribunal will remain intact. ``` ``` Needless to say, theappellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8%, as awarded by the Tribunal, from the date of claim until it is recovered.He will also be ``` ``` MACA NO. 175 OF 2023 ``` **==> picture [22 x 9] intentionally omitted <==** ``` entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` akv ``` ``` JUDGE ```