V.P. Nishad v. Suneesh and P. Ajeesh and The National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939 MACA.No. 174 of 2014 () -----------------------AGAINST THE AWARD IN OPMV 597/2010 of PRINCIPAL M.A.C.T., KOZHIKODE DATED 27-06-2012 APPELLANT(S)/PETITIONER: ----------------------- V.P.NISHAD, S/O. ABDUL AZEEZ, AGED 21 YEARS, VALLIKUNNUPARAMBIL HOUSE P.O PUTHIYAKADAPPURAM, PERUMANNA VIA KOZHIKODE ## BY ADV. SRI.AVM.SALAHUDEEN RESPONDENT(S)/RESPONDENTS: -------------------------- ## 1. SUNEESH, S/O. AYYAPPAN, 7/819, POOVATHALI HOUSE, P.O PERUMANNA, PERUVAYAL, KOZHIKODE DISTRICT 673026 2. P. AJEESH, S/O. AYYAPPAN, 7/819, POOVATHALI HOUSE, P.O PERUMANNA, PERUVAYAL, KOZHIKODE DISTRICT 673026 3. THE NATIONAL INSURANCE CO. LTD, DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE 673001 R3 BY ADV. SRI.P.G.GANAPPAN R1,R 2 BY ADV. SRI.P.R.SREEJITH R1,R 2 BY ADV. SRI.M.PROMODH KUMAR R3 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & SHIRCY V., JJ.** ## **========================== M.A.C.A. No.174 OF 2014 ==========================** Dated this the 8[th] day of November, 2017 ## **JUDGMENT** _Ravikumar, J._ In a collision between a motor cycle and the autorickshaw bearing Reg.No.KL-11/Y-240, the appellant who was the motorist, sustained injuries. He was immediately taken to Medical College Hospital, Kozhikode. He remained there as an inpatient for a period of 22 days, in two spells. It is in the said circumstances, he filed O.P. (MV)No.597 of 2010 under section 166 of the Motor Vehicles Act claiming a compensation of Rs.2,20,000/-. As per the impugned award, the Principal Motor Accidents Claims Tribunal, Kozhikode granted a total compensation of Rs.71,395/- with interest at the rate of 7% per annum from the date of the petition till realisation. The **M.A.C.A.No.174/2014** 2 appellant seeks for enhancement of the quantum of compensation. 2. We have heard the learned counsel for the appellant and the learned counsel for the third respondent. In view of the absence of any dispute regarding the cause of the accident as also the liability of the third respondent to indemnify the insured owner of the offending vehicle viz., the first respondent, we are only called upon to consider the question whether the appellant is entitled to get enhanced compensation. 3. The appellant got grievance regarding the quantum of compensation awarded by the Tribunal under the heads pain and suffering, loss of earning power and for disability. It is also the submission that the compensation awarded towards extra nourishment is also on the lower side. 4. Per contra, the learned counsel for the third respondent submitted that a glance at the schedule of compensation would reveal that the appellant was adequately compensated under all heads and therefore, no appellate interference is called for. **M.A.C.A.No.174/2014** 3 5. Having heard the learned counsel on both sides and perusing the impugned award, we are of the view that an interference with the impugned award for an upward modification of the compensation under certain heads, is required. 6. The main grievance of the appellant is with respect to the fixation of the monthly income. It is contended that the Tribunal has erroneously fixed the monthly income as Rs.3,000/- ignoring the specific case of the appellant that he was a barber by profession and was earning Rs.8,000/- per month. At the same time, it is a fact that the appellant had not adduced any evidence to establish such averments. In such circumstances, we do not find any reason to hold that the Tribunal had erred in fixing the monthly income notionally. But, the question is whether the fixation of the monthly income notionally at Rs.3,000/- invites interference. The accident occurred on 16.11.2009 and at the time of the accident, the appellant was aged only 21 years. Since no cogent evidence is adduced to prove the same, we do not find any reason to accept the claim of the appellant that he was **M.A.C.A.No.174/2014** 4 earning Rs.8,000/- per month. Still, we are of the view that it is only reasonable to fix the monthly income of the appellant as Rs.6,000/- for calculation purpose. We do so. There is no dispute regarding the multiplier identified by the Tribunal. It was correctly identified with reference to the age of the appellant at the time of the accident. The entire percentage of the disability certified under Ext.C1 was also taken into account by the Tribunal for calculating compensation. There can be no doubt with respect to the position that an injured who claims compensation for personal injury is not entitled to compensation for loss of earning power over and above compensation for disability. This position is settled by a decision of the Full Bench of this Court in **Oriental Insurance Co. Ltd. v. Hariprasad [2005 (4) KLT 977]** . In such circumstances, taking note of the fact that the appellant had sustained only 2% disability, we are of the view that he is entitled to get only compensation for loss of bodily integrity and therefore, he is entitled to get compensation for disability incurred. But, the same has to be re-assessed by substituting the re-fixed **M.A.C.A.No.174/2014** 5 monthly income. On such re-assessment, the appellant is entitled to get an additional sum of Rs.12,960/- (6000x12x18x2/100-12960) under that head. We do not find any reason to interfere with the fixation of the period made by the Tribunal for the purpose of calculating loss of earning. Still, the appellant is entitled to get proportionate enhancement by virtue of re-fixation of the monthly income by us. The appellant is, therefore, entitled to get Rs.9,000/more under that head. Towards extra nourishment, the Tribunal has granted only an amount of Rs.1,500/-. The appellant had been an inpatient for a period of 22 days, in connection with the treatment of injuries sustained in the accident in question. Taking into account the year of the accident and the financial condition prevalent at the relevant point of time, we are of the view that the bystander's expenses ought to have been granted at the rate of Rs.100/- per day during the period of hospitalisation. In that view of the matter, the appellant is entitled to get an amount of Rs.700/- more. Ext.A2 wound certificate would reveal that in the accident, the appellant had sustained **M.A.C.A.No.174/2014** 6 subtrochanteric fracture on the left femur. He had undergone two operations viz., for the purpose of fixing the implants and removal of implants. Taking into account all those aspects, we are inclined to grant Rs.5,000/- more as compensation towards pain and suffering. The aforesaid circumstances would reveal that he must have deprived of enjoyment of life for some time. It is a fact that the appellant had incurred permanent disability due to the injuries sustained in the accident. Taking into account all such aspects, we are inclined to grant an amount of Rs.5,000/- towards loss of amenities. It is to be noted that the Tribunal has not granted any amount under this head. 7. In the result, the appellant is entitled to get an additional amount of Rs.32,660/-. It is awarded. This appeal was filed with a delay of 393 days. While condoning the delay, as per order dated 27.6.2016 in C.M.Appln.No.197 of 2014, this Court directed that the aforesaid period will not carry interest if additional compensation is awarded. Thus, the appellant will be entitled for 8% interest from the date of petition till realisation excluding the aforesaid period of 393 **M.A.C.A.No.174/2014** 7 days. The third respondent shall deposit the said amount with interest thereon within one month from the date of receipt of a copy of this judgment. Appeal stands disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/SHIRCY V. (JUDGE)** **spc/** **M.A.C.A.No.174/2014** 8 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.No.174/2014** 9