Vishnu C.R. v. The Branch Manager, National Insurance Company Ltd., Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` WEDNESDAY, THE 3 [ RD ] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 ``` ``` MACA NO. 125 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 03.08.2013 IN OPMV NO.511 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` VISHNU C.R S/O.RADHAKRISHNAN, RESIDING AT CHAKKUMKAL HOUSE,NERIAMANGALAM, KOTHAMANGALAM. ``` ``` BY ADVS. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU ``` ## **`RESPONDENT/S:`** - **`1 SHYAMALA P.K (DELETED) W/O.VELAPPAN, PARACKAPADI VEEDU, KARIMKULAM, ADIMALYPIN - 685 561.DELETED`** - **`2 GEORGE JOSEPH (DELETED) KOLANJIYIL HOUSE, PANICHAYAM, NEDUNGAPARA P.O.,KURUPAMPADY. DELETED`** - **`3 VELAPPAN P.S. (DELETED) S/O.SANKARAN PARACKAPADI VEEDU, KARIMKULAM, ADIMALYKARA, MANNAMKANDOM VILLAGE PIN - 685 561. DELETED`** - **`4 THE BRANCH MANAGER THE NATIONAL INSURANCE COMPANY LTD, ERNAKULAM, PIN - 682 035 (R1 TO R3 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DTD 25/6/2020 IN IA 1/20 IN MACA 125/2014.)`** - **`OTHER PRESENT:`** ## **`SRI.GEORGE A. CHERIAN - SC, NATIONAL INSURANCE COMPANY LIMITED`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 125 OF 2014 ``` ``` 2 ``` ## **J U D G M E N T** ``` The appellant herein is the petitioner in ``` ``` OP(MV) No.511 of 2009 on the file of Motor ``` ``` Accidents Claims Tribunal, Muvattupuzha, ``` ``` challenging the impugned award on the ground of inadequacy of compensation. ``` ``` 2. On 16/4/2009 at about 10.30 am, while the ``` ``` appellant was riding a motorcycle through Kochi-Madurai national highway, he was knocked down by KL-17/A-1530 Maruthi car driven by the 3 rd ``` ``` respondent in a rash and negligent manner. He ``` ``` sustained serious injuries, and he was admitted and ``` ``` treated in hospital for 121 days in total. He ``` ``` suffered permanent disability also due to the injuries suffered in the accident. He approached the Tribunal claiming compensation of Rs.10 lakh, but the Tribunal awarded only Rs.6,85,570/-, and hence this appeal. ``` ``` MACA NO. 125 OF 2014 ``` ``` 3 ``` ``` 3. The 1st respondent was the registered owner of the offending car. The 2nd respondent was its insured owner, the 3rd respondent was its driver and the 4 th respondent was its insurer. Respondents 1 to 3 remained exparte. The 4 th respondent ``` ``` insurer contested the case, but admitted the policy. ``` ``` 4. In the appeal, the respondent insurer entered appearance through counsel and admitted the policy. ``` `5. Heard learned counsel for the appellant and` ``` learned counsel for the respondent/insurer. ``` `6. The appellant is assailing the award on the` ``` ground of inadequacy of compensation. According to him, he was a 20 year old business man doing partnership business with his brother in law ``` ``` earning monthly income of Rs.6,000/-. But learned ``` ``` Tribunal fixed his notional income @ Rs.3,500/- per ``` ``` month. The appellant relying on the decision ``` ``` MACA NO. 125 OF 2014 ``` ``` 4 ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance ``` ``` Insurance Company Limited [AIR 2011 SC 2951] , would ``` ``` submit that even a coolie worker in the year 2009, ``` ``` was eligible to get his notional income fixed @ Rs.7,000/- per month. So according to him, he is eligible to get his monthly income fixed at ``` ``` Rs.6,000/-. Relying on the decision Ramachandrappa’s case (supra), this court is ``` ``` inclined to fix his notional income @ Rs.6,000/-. ``` `7. Learned Tribunal assessed loss of earning for` ``` 12 months. Since this Court has fixed his notional income @ Rs.6,000/-, he is eligible to get Rs.72,000/-, under the head loss of earning for 12 months. After deducting Rs.42,000/- already ``` ``` awarded, he is entitled to get the balance amount of Rs.30,000/- as enhanced compensation, towards loss of earning. ``` `8. Towards pain and suffering, learned Tribunal` ``` awarded Rs.25,000/- against his claim of ``` ``` MACA NO. 125 OF 2014 ``` ``` 5 ``` ``` Rs.1 lakh. The appellant had suffered open fracture of both bones of right forearm, open oblique fracture distal shaft of tibia left. He was hospitalized for 121 days in total. Considering these aspects, this Court is inclined to enhance the compensation under the head pain and suffering by Rs.10,000/-. ``` ``` 9. Towards bystander expenses, learned Tribunal awarded Rs.125/- per day for 121 days. Since the accident was in the year 2009, this Court is inclined to award bystander expenses @ Rs.200/- per day for 121 days of hospitalization which will come to Rs.24,200/-. After deducting Rs.15,125/- already given, he is eligible to get the balance amount of Rs.9,075/- as enhancement under the head, bystander expenses. ``` ``` 10. Towards extra nourishment, the Tribunal ``` ``` awarded only 6,000/-, though he was hospitalized for 121 days. So this Court is inclined to award ``` ``` MACA NO. 125 OF 2014 ``` ``` 6 ``` ``` Rs.3000 more, under the head extra nourishment. ``` ``` 11. For transportation expenses, the tribunal ``` ``` awarded only Rs.5,000/-. The appellant was hospitalized for 121 days in different spells, and he was attending periodic reviews also, even after discharge. Considering that aspect this Court is inclined to award Rs.3,000/- more under the head transportation expenses. ``` ``` 12. Under the head permanent disability, the Tribunal awarded Rs.67,200/-, taking the permanent disability as 10%. Ext.A15 disability certificate was issued by an orthopedic surgeon, and not by any ``` ``` medical board. The Doctor who issued the ``` ``` certificate was not examined also to prove its contents. So learned Tribunal is justified in ``` ``` accepting the whole body disability of the ``` ``` appellant as 10%. This Court has fixed his notional ``` ``` income at Rs.6,000/-, when compensation for 10% ``` ``` disability is assessed applying multiplier of 18, ``` ``` MACA NO. 125 OF 2014 ``` ``` 7 ``` ``` and taking his notional income @ Rs.6,000/-, he is eligible to get Rs.1,29,600/-. After deducting Rs.67,200/- already awarded, he is entitled to get the balance amount of Rs.62,400/-. ``` `13. Towards loss of amenities, learned Tribunal` ``` awarded Rs.18,000/- against his claim of ``` ``` Rs.50,000/-. Ext.A15 certificate shows that, the appellant had suffered 1.5cm shortening of left leg, and flexion and extension of right elbow was reduced by 4%. The appellant was a 20 year old boy. So the shortening of left leg by 1.5 cm might have affected his amenities in life, including his marriage prospects also. So this Court is inclined to award Rs.7,000/- more, under the head loss of amenities. ``` ``` 14. The compensation awarded under all other ``` ``` heads seems to be reasonable, and hence it needs no modification. ``` `15. The enhanced compensation awarded in this` ``` MACA NO. 125 OF 2014 ``` ``` 8 ``` ## `appeal is stated in the table below:-` |Head of claim|Amount<br>awarded by the<br>Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |---|---|---|---| |Loss of earning|42,000/-|72,000/-<br>[6,000x12]|30,000/-| |Pain and<br>suffering|25,000/-|10,000/-|10,000/-| |Loss of<br>amenities|18,000/-|+7,000/-|7,000/-| |Bystander<br>expenses|15,125/-|24,200/-|90,75/-| |Extra<br>nourishment|6,000/-|+3,000/-|3,000/-| |Transportation<br>charges|5,000/-|+3,000/-|3,000/-| |Permanent<br>disability|67,200/-|1,29,600/-|62,400/-| |TOTAL 1,24,475/-|||| ``` 16. So the appellant is entitled to get enhanced compensation of Rs.1,24,475/- [30,000+ 10,000+7,000+9,075+3,000+3,000+62,400]. ``` ``` MACA NO. 125 OF 2014 ``` ``` 9 ``` ``` 17. The respondent/National Insurance Company is directed to deposit the enhanced compensation in the bank account of the appellant, with 8% interest ``` ``` 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 appellant towards Tax, balance court fee and legal benefit fund. ``` ``` The appeal is allowed to the extent as above, and no order is made as to costs. ``` **==> picture [43 x 13] intentionally omitted <==** ## **SOPHY THOMAS,** ## **JUDGE** ska