V.M. Louis Saju v. K.A. Sudheer, Saheer and The New India Assurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 29TH DAY OF JUNE 2017/8TH ASHADHA, 1939 MACA.No. 1916 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1720/2004 of ADDITIONAL MACT,ERNAKULAM DATED 31-03-2011 APPELLANT(S)/PETITIONER: ------------------------------ V.M.LOUIS SAJU, AGED 26 YEARS S/O.MARTIN, VALIYAPARAMBIL HOUSE, MUNDAMVELI, RAMESWARAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.P.M.JOSHI RESPONDENT(S):RESPONDENTS ----------------------------------- 1. K.A.SUDHEER S/O.ADIMAKUTTY, AGE NOT KNOWN TO THE PETITIONER KAITHAPALLY, HOUSE NO.3/10A, NELLUKADAVU DESOM, FORT KOCHI VILLAGE-682001 ## 2. SAHEER S/O.M.A.BEEVI, AGE NOT KNOWN TO THE PETITIONER, KANATTIL HOUSE, 2/798, KOCHARRY, KOCHI-682001 3. THE NEW INDIA ASSURANCE COMPANY LIMITED BRANCH OFFICE, PERUMBAVOOR-683542 R3 BY ADV. SRI.M.RAJAGOPALAN R3 BY ADV. SRI.RAJIT R3 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.1916 OF 2011 ==========================** Dated this the 29[th] day of June, 2017 ## **JUDGMENT** _Ravikumar, J._ The injured-petitioner is the appellant. He assails the judgment and award passed in O.P.(MV)No.1720 of 2004 by the Additional Motor Accidents Claims Tribunal, Ernakulam. It was filed under section 166 of the Motor Vehicles Act seeking a total compensation of Rs.2,50,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 29.4.2004 while he was riding his motor cycle. As per the impugned award, the Tribunal has granted an amount of Rs.80,725/- as against a claim of Rs.2,50,000/-, as compensation. 2. Before the Tribunal, no evidence was adduced by the respondents and on the side of the appellant, the investigating officer **M.A.C.A.1916/2011** 2 in the crime registered in connection with the accident that led to Ext.A2 charge sheet, was examined as PW1 and Exts.A1 to A16 were got marked. It was after appreciating the evidence on record and rival contentions that the Tribunal has granted the aforesaid amount as compensation with interest at the rate of 7.5% per annum from the date of the petition till realization. It is seeking enhancement of the quantum of compensation that the captioned appeal has been filed. 3. Heard the learned counsel for the appellant and the learned counsel for the third respondent insurance company. 4. Evidently, there is no dispute regarding the accident, cause of accident as negligence on the part of the first respondent-driver as also the liability of the third respondent to indemnify the insured owner of the offending vehicle. Hence, we are called upon to consider only the question whether or not the appellant is entitled to get enhanced compensation. 5. The learned counsel for the appellant contended that the Tribunal has gone wrong in fixing the monthly income of the **M.A.C.A.1916/2011** 3 appellant as Rs.3,000/- disregarding the claim that he was a mechanic aged 18 years and earning a monthly income of Rs.4,500/-, at the time of the accident. True that the appellant had produced Ext.A12 salary certificate. But at the same time, the appellant had not proved the same. It is also to be noted that he had not even mounted the box to give evidence. In such circumstances, the Tribunal cannot be said to have committed any error in fixing the monthly income of the appellant notionally. However, we are of the view that taking into account the year of the accident and the age of the appellant at the time of the accident, fixation of the monthly income as Rs.3,000/- is on the lower side. We are also of the view that in the matter of its fixation, the decision of the Hon'ble Apex Court in **Ramachandrappa** **v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** has to act as guidance. In that case, in respect of a coolie who met with an accident in the year 2004, the Apex Court had fixed the monthly income as Rs.4,500/- for calculation purpose. Hence, we do not find any reason to disbelieve the version of the **M.A.C.A.1916/2011** 4 appellant that he was earning Rs.4,500/- per month and accordingly, the monthly income of the appellant is re-fixed as Rs.4,500/-. There is no case for the appellant that the accident has caused any permanent disability. For calculating compensation for loss of earning, the Tribunal has taken four months' period. Taking note of the nature of the injuries, we do not find any reason to interfere with the said fixation. Therefore, the appellant is entitled only to get a proportionate enhancement under that head pursuant to the re-fixation of monthly income by us. In such circumstances, the appellant is entitled to get an additional compensation of Rs.6,000/- under the head 'loss of earning'. No amount was awarded by the Tribunal towards damage to clothes. The nature of the injuries would indicate that the dressess worn by him at the time of the accident, must have been damaged. In such circumstances, we are inclined to grant a sum of Rs.1,000/- under that head. An amount of Rs.500/- was granted by the Tribunal towards extra nourishment. The appellant had been an inpatient for a period of 13 days. Taking note of the year of the **M.A.C.A.1916/2011** 5 accident, we are inclined to grant Rs.100/- per day towards extra nourishment during the period of hospitalisation. Hence, the appellant is entitled to get an additional sum of Rs.800/- under that head. Towards attendant expenses, the Tribunal has granted an amount of Rs.1,625/- evidently @ Rs.125 per day. Taking note of the year of the accident, we are of the view that the attendant expenses ought to have been granted at the rate of Rs.200/- per day. Taking note of the period of hospitalisation, the appellant would be entitled to get an additional sum of Rs.975/- under that head. Towards loss of amenities and enjoyment in life, the Tribunal has granted only a sum of Rs.4,000/-. Taking note of the injuries noted in Ext.A6 and the period of treatment undergone by the appellant, we are of the view that it is only reasonable to grant an upward modification of compensation fixed therefor. We are inclined to grant an additional amount of Rs.6,000/under that head. 6. In the result, the appellant will be entitled for an additional compensation of Rs.14,775/- and it will carry interest at the rate of 8% **M.A.C.A.1916/2011** 6 per annum from the date of the petition till realisation. The third respondent insurance company is directed to deposit the said amount along with interest thereon within one month from the date of receipt of a copy of this judgment. The appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1916/2011** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.1916/2011** 8 **JUDGMENT September, 2010**