## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 23[RD] DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944**
**MACA NO. 2254 OF 2012**
**AGAINST THE ORDER/JUDGMENT IN OPMV 340/2010 OF MOTOR**
**ACCIDENT CLAIMS TRIBUNAL TIRUR**
## **APPELLANT/PETITIONER:**
VINILKUMAR K.R. @ VINIL S/O.RAMAKRISHNAN, KODAKKATTIL HOUSE, PULAKKATTUKARA, P.O. CHETTISSERY, THRISSUR DISTRICT, NOW RESIDING AT C/O.MANOJ KUMAR K.T, KUTIKKATTU THARAYIL HOUSE, PUZHAMBRAM, BEEYAM P.O, MALAPPURAM DISTRICT. BY ADV SRI.P.V.CHANDRA MOHAN
## **RESPONDENTS/RESPONDENTS:**
1 K.S.R.T.C REP. BY THE MANAGING DIRECTOR, KSRTC, THIRUVANANTHAPURAM - 695 001. 2 POULOSE, S/O.VAREED, VATTAPARAMBAN HOUSE, MATTUR VILLAGE, KALADY, ERNAKULAM DISTRICT - 685 374. 3 THE NEW INDIA ASSURANCE CO. LTD, REP. BY MANAGER, THE NEW INDIA ASSURANCE CO. LTD., TIRUR, 676 101. BY ADVS. ALEX ANTONY SEBASTIAN P.A. PREETHY R. NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.09.2022, THE COURT ON 23.09.2022 DELIVERED THE FOLLOWING:
**MACA No.2254 of 2012**
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## **SOPHY THOMAS, J.**
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## M.A.C.A No.2254 of 2012
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## Dated this the 23[rd] day of September, 2022
## **J U D G M E N T**
This appeal has been preferred by the claimant in OP (MV) No.340 of 2010 on the file of Motor Accidents Claims Tribunal, Tirur, assailing the quantum of compensation awarded by the Tribunal.
2. The appellant, a 41 year old jewellery worker, met with a road traffic accident on 19.11.2009 at Thalore junction in Paliyekkara-Thrissur public road. While he was riding his motorcycle, KL-15/5740 (RT 562) KSRTC bus driven by the 2[nd] respondent in a rash and negligent manner knocked him down and he sustained serious injuries. He was admitted and treated at Elite Mission Hospital, Thrissur on two occasions and even after discharge, he was continuing treatment as an inpatient. Due to the serious nature of the injuries sustained, he suffered permanent disability also. Though he approached the Tribunal claiming compensation of Rs.20 lakh, the Tribunal
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awarded only Rs.3,11,800/- which, according to him, is not ‘just’ and hence this appeal.
3. The 2[nd] respondent was the driver, 1[st] respondentKSRTC was the owner and the 3[rd] respondent was the insurer of the offending bus. The accident, injuries and the policy of the offending vehicle are not in dispute.
4. Before the Tribunal, no oral evidence was adduced
from either side. Exts.A1 to A17, C1 and C2 were marked.
5. Now let us see whether any interference is warranted in the impugned award.
6. According to the appellant, he was engaged in manufacture of jewellery and supplying it to various shops and was earning monthly income of Rs.60,000/-. Since no documents were there to prove the monthly income of the appellant, and there was nothing to show that, as on the date of accident, the appellant was a member of the Jewellery Manufacturers' Association, the Tribunal fixed his notional income at Rs.4,500/-. According to the appellant, the notional income fixed is too low and in the year 2009, even a casual labourer would have been getting more income than that. Going by the decision **Ramchandrappa** vs. **Manager, Royal**
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## **Sundaram Alliance Insurance Company Limited** (AIR
2011 SC 2951), even a casual labourer was eligible to get his notional income fixed @ Rs.7,000/- in the year 2009. So, the notional income of the appellant could be fixed at Rs.7,000/per month.
7. The Tribunal assessed loss of earning for five months. Considering the nature of injuries suffered by the appellant including the head injury and consequential psychiatric disability, loss of income could have been assessed for a period of eight months. At the rate of Rs.7,000/- per month, he was eligible to get Rs.56,000/-. After deducting Rs.22,500/already awarded, the appellant is entitled to get Rs.33,500/towards enhanced compensation for loss of earning.
8. Towards bystander expenses, the appellant was paid only Rs.100/- per day for 18 days of hospitalisation. Since the accident was in the year 2009, and even after discharge, he was in need of a bystander to support, this Court is inclined to award Rs.5,000/- more towards bystander expenses.
9. Towards extra nourishment, the appellant was given only Rs.2,700/-. Since he had suffered severe head injury with multiple lacerations on face and fracture of jaw, towards
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extra nourishment also, an additional amount of Rs.5,000/- is just and reasonable.
10. Towards pain and sufferings, the appellant was awarded only Rs.20,000/-. Considering the nature of injuries, period of hospitalisation and also the surgical procedures undergone, this Court is inclined to award Rs.10,000/- more towards pain and sufferings.
11. Ext.C2 report of the State Medical Board will show that, the appellant had suffered permanent disability of 27.5%. The appellant suffered psychiatric disability also due to the injuries suffered in the accident. So, the Tribunal is not justified in reducing the percentage of disability to 20%. We have fixed his notional income at Rs.7,000/-. The multiplier applicable is 14 as he was aged only 41. So, the loss of income due to permanent disability can be assessed as Rs.3,23,400/-(7000x12x14x27.5/100). He was already paid Rs.1,51,200/- under the head 'permanent disability'. So, he is entitled to get the balance Rs.1,72,200/- as enhanced compensation towards permanent disability.
12. Towards loss of amenities, nothing was awarded by the Tribunal though Ext.C2 disability certificate shows
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psychiatric disability also due to mental impairment. The appellant was a 41 year old man allegedly engaged in jewellery making. Due to the accident, he lost his physical and mental well-being as well as his profession. Considering that fact, this Court is inclined to award Rs.25,000/- towards loss of amenities.
13. The appellant produced two documents in the appeal along with I.A No.2653 of 2012 to accept the same as additional evidence to prove future treatment expenses. One document was issued from Aswini Hospital, Thrissur dated 07.09.2012 saying that, the appellant has to undergo surgery for removal of plate and screw from right forearm and also he has to undergo reconstruction of ligament of left knee which will cost Rs.50,000/-. Another document is the certificate issued from Nadakavukaren Hi.Tech Dental Speciality Centre which says that, the appellant has to undergo root canal and also extraction of teeth which will cost Rs.20,000/-. No date is mentioned in that certificate. Anyhow those documents were produced before the appellate court on 24.09.2012. 10 years elapsed since then and if the appellant had to undergo the future treatment mentioned in those certificates, it would have
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been carried out by this time, and the appellant could have produced the actual bills to show the expenditure for such treatment. But, no such bills have been produced by the appellant and so, this Court is not inclined to accept his case that he had to expend amount for future treatment. So, his claim under the head expenses for future treatment is liable to be declined.
14. The compensation awarded by the Tribunal under all other heads seems to be reasonable and it needs no interference.
|**Head of**<br>**claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Amount awarded**<br>**in appeal**|**Difference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**|
|---|---|---|---|
|Loss of<br>earning|Rs.22,500/-|Rs.56,000/-|Rs.33,500/-|
|Bystander<br>expenses|Rs.1,800/-|Rs.6,800/-|Rs.5,000/-|
|Extra<br>nourishment|Rs.2,700/-|Rs.7,700/-|Rs.5,000/-|
|Pain and<br>sufferings|Rs.20,000/-|Rs.30,000/-|Rs.10,000/-|
|Permanent<br>disability|Rs.1,51,200/-|Rs.3,23,400/-|Rs.1,72,200/-|
|Loss of<br>amenities|-|Rs.25,000/-|Rs.25,000/-|
|**Total**|**Rs.1,98,200/-**|**Rs.4,48,900/-**|**Rs.2,50,700/-**|
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15. In the result, the appellant is entitled to get enhanced compensation of Rs. 2,50,700/- (33500+5000+ 5000+10000+172200+25000).
The 3[rd] respondent/insurer is directed to deposit the enhanced compensation in the Bank Account of the appellant with interest @ 7.5% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/ 2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund.
This appeal is allowed accordingly. No order as to costs.
Sd/-
**SOPHY THOMAS JUDGE**
smp
