VIJAYAN (DECEASED) and Others v. ASHARAF, SUKU and THE NEW INDIA ASSURANCE COMPANY LIMITED

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 22[ ND ] DAY OF JULY 2024 / 31ST ASHADHA, 1946`** ## **`MACA NO. 331 OF 2013`** ``` AGAINST THE AWARD DATED 26.02.2011 IN OP(MV) NO.2178 OF 2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ## **`*1 VIJAYAN (DECEASED)`** ``` S/O.THUPRAT SANKARAN, RESIDING AT KUNNAMATH HOUSE, PUTHURKKARA, AYYANTHOLE, THRISSUR DISTRICT. ``` ## **`*ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED:`** - **`2 MANI, W/O LATE VIJAYAN, AGED 51 YEARS, RESIDING AT THUPRATTU HOUSE, KUNDALIYUR P.O., THRISSUR-680 616.`** - **`3 VIMESH,`** ``` S/O LATE VIJAYAN, AGE D 26 YEARS, RESIDING AT THUPRATTU HOUSE, KUNDALIYUR P.O., THRISSUR, PIN - 680616. ``` - **`4 VIJISHA, D/O LATE VIJAYAN, AGED 22 YEARS, RESIDING AT THUPRATTU HOUSE, KUNDALIYUR P.O., THRISSUR-680 616.`** ``` * ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 25.08.2022 IN IA 1/2022 IN MACA 331/2013. ``` ``` BY ADVS. ``` ``` T.C.SURESH MENON B.DEEPAK ``` ``` P.S.APPU ``` - **`A.R.NIMOD`** MACA 331/13 2 ## **`RESPONDENTS/RESPONDENTS:`** ## **`1 ASHARAF,`** ``` S/O.POKKER, RESIDING AT KUMBILIPARAMMIL HOUSE, PONMUNDAM, VAILATHUR, MALAPPURAM DSITIRCT - 679 304. ``` ## **`2 SUKU,`** ``` S/O.AYYAPPAN, RESIDING AT CHATHANCHIRAKKAL HOUSE, THANNALOOR, THAZHOOR, MALAPPURAM DISTRICT-676 307. ``` ## **`3 THE NEW INDIA ASSURANCE COMPANY LIMITED,`** ``` TIRUR BRANCH, MALAPPURAM DISTRICT-676 101. ``` ``` BY ADV SRI.PMM.NAJEEB KHAN, SC, NEW INDIA ASSURANCE COMPANY LIMITED. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 331/13 3 ## **J U D G M E N T** This appeal is at the instance of the claimant in OP(MV)No.2178 of 2004 on the file of Motor Accidents Claims Tribunal, Thrissur, impugning the award on the ground of inadequacy of compensation. 2. On 15.11.2003 at about 5.00 p.m., while the appellant was riding a bicycle through Guruvayur - Kunnamkulam NH-17, he was knocked down by KRM/1919 car driven by the 2nd respondent, in a rash and negligent manner. He sustained serious injuries including head injury and multiple rib fracture. He was admitted and treated in hospital for 124 days in total, in two different spells. He was a 49 year old construction worker, earning monthly income of Rs.4,000/-. He approached the Tribunal claiming compensation of Rs.4,50,000/-, but learned Tribunal awarded only Rs.1,78,000/- and hence this appeal. 3. The 2nd respondent was the driver of the offending car, 1st respondent was its owner and the 3rd respondent was the MACA 331/13 4 Insurer. Respondents 1 and 2 remained _ex parte_ before the Tribunal. The 3rd respondent-Insurer contested the case, but admitted the Policy. 4. Learned Tribunal, on analysing the facts and evidence, found that the accident occurred due to the rash and negligent driving of the offending car by the 2nd respondent and since that vehicle was validly insured with the 3rd respondent as on the date of accident, the Company was directed to compensate the claimant. 5. In the appeal, learned Standing Counsel for the 3rd respondent-Insurer entered appearance and submitted that the compensation awarded by the Tribunal is just and reasonable and, hence it needs no modification. 6. Pending appeal, the appellant died. His legal heirs were impleaded as additional appellants 2 to 4. 7. 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. MACA 331/13 5 8. Heard learned counsel for the additional appellants and learned counsel for the 3rd respondent-Insurer. 9. Learned counsel for the appellants would submit that though the original appellant was earning monthly income of Rs.4,000/-, learned Tribunal fixed his notional income @ Rs.2,500/- only, and that is arbitrarily low. He would rely on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , to say that a coolie worker in the year 2003 was eligible to get his notional income fixed @ Rs.4,000/-. Accepting that argument, this Court is inclined to fix his notional income @ Rs.4,000/- per month. 10. Learned Tribunal assessed loss of earning of the original appellant for three months only, though he was hospitalised for more than 4 months. So this Court is inclined to award compensation for loss of earning for a period of six months @ Rs.4,000/-, which will come to Rs.24,000/- (4,000x6). After deducting Rs.7,500/- already awarded by the Tribunal, he was MACA 331/13 6 eligible to get Rs.16,500/-. 11. Towards bystander expenses, learned Tribunal awarded only Rs.3,000/-, even after finding that the original appellant was hospitalised for 124 days. @ Rs.200/- per day, for 124 days of hospitalisation, he was eligible to get Rs.24,800/-. After deducting Rs.3,000/- already awarded by the Tribunal, he would get Rs.21,800/-. 12. Towards pain and suffering, learned Tribunal awarded Rs.20,000/- against the claim of Rs.50,000/-. He had suffered head injury with fracture of left temporo parietal bone, fracture of mandible and multiple rib fracture, apart from lacerations and abrasions all over the body. So, this Court is inclined to award Rs.10,000/- more under the head ‘pain and suffering’. 13. Learned counsel for the appellants would rely on Ext.A9 Disability Certificates to show that the original appellant had suffered 55% of neurological disability apart from 9% orthopaedic disability. The Neurologist who issued Ext.A9 Certificate was examined as PW1. He had noted that the MACA 331/13 7 original appellant was not able to do any manual work and he had difficulty in speaking and also in walking. It was not a Certificate issued from the Medical Board. It seems that the orthopaedic disability of 9% is inclusive of the disability mentioned in Ext.A9. Learned Tribunal accepted the disability of the original appellant to the extent of 40%. Since he had suffered mild right sided hemiparesis, mild to moderate ataxia and mild to moderate dysarthria, this Court is inclined to accept his disability to the extent of 45%. 14. Learned counsel for the appellants would submit that the original appellant was not able to walk on his own, and he was not able to do any job. So his functional disability was even more, and so he was eligible to get addition towards future prospects. Adverting to the facts and circumstances as narrated above, and based on **National Insurance Company** **Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680]** , this Court is inclined to give 25% addition towards future prospects, as he was self employed and aged below 50. So his MACA 331/13 8 income for the purpose of assessing disability compensation can be taken as Rs.5,000/- (4,000+25%). The multiplier applicable is 13. So the compensation for 45% disability can be assessed as Rs.3,51,000/(5,000x12x13x45/100). After deducting Rs.1,20,000/- already awarded by the Tribunal, he was eligible to get Rs.2,31,000/-. 15. The original appellant had suffered ataxia as well as disfiguration as borne out from Ext.A10 photographs. As deposed by PW1-Doctor, he was not able to walk without support of another person, and he was not able to do any work. Considering these aspects, this Court is inclined to award Rs.20,000/- towards loss of amenities and disfiguration. 16. The compensation awarded by the Tribunal under all other heads seems to be reasonable, and hence it needs no modification. |odification.|||| |---|---|---|---| |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |Loss of earning|Rs.7,500/-|Rs.24,000/-|Rs.16,500/-| MACA 331/13 9 |Bystander<br>expenses|Rs.3,000/-|Rs.24,800/-|Rs.21,800/-| |---|---|---|---| |Pain and suffering|Rs.20,000/-|Rs.30,000/-|Rs.10,000/-| |Compensation for<br>permanent<br>disability|Rs.1,20,000/-|Rs.3,51,000/-|Rs.2,31,000/-| |Loss of amenities<br>and disfigurement|…….|Rs.20,000/-|Rs.20,000/-| |Total|||**Rs.2,99,300**/-| 17. In the result, the original appellant was entitled to get enhanced compensation of Rs.2,99,300/-. Since he is no more, his wife and children who are additional appellants 2 to 4 will receive the enhanced compensation, in the ratio 8:1:1. 18. The 3rd respondent-Insurer is directed to deposit the enhanced compensation of Rs.2,99,300/- (Rupees Two Lakh Ninety Nine Thousand and Three Hundred only) with 8% interest per annum from the date of petition till the date of deposit (excluding 577 days of delay in filing the appeal) before the Motor Accidents Claims Tribunal, Thrissur, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to MACA 331/13 10 additional appellants 2 to 4, in the ratio 8:1:1, after deducting the liabilities, if any, towards tax, balance court free and legal benefit fund. The appeal is allowed to the extent as above, with proportionate costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-