Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945 AGAINST THE AWARD DATED 08.09.2010 IN OP(MV) 416/2005 OF II ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE APPELLANT/PETITIONER (INJURED): 1 BALAKRISHNAN.K.V AGED 60 YEARS S/O. M.C.GOVINDAN NAMBIAR, GIGI NIVAS, BY ADVS. SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN RESPONDENTS/RESPONDENTS:
1 BALAN MANNOTH S/O KUNJIKANNAN NAIR SREE VALSAM, KUNNATHARA P.O., KOZHIKODE, PIN 673001 (R.C. OWNER OF THE BUS NO.KL-11/K 6435). 2 RAGHAVAN MALAYIL S/O. VELUKUTTY, MALAYIL HOUSE, KANNANKARA, CHELANNUR, KOZHIKODE PIN 673001 (DRIVER OF THE BUS NO.KL-11/K 6435, BADGE NO.1128/1990). 3 THE NATIONAL INSURANCE COMPANY LTD. P.B.NO.811, NOOR COMPLEX, ARAYIDATHUPALAM, MAVOOR ROAD, KOZHIKODE DISTRICT, PIN 673001 (POLICY NO.571300/31/04/672191). BY ADVS. SMT.DEEPA GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The appellant was the petitioner in O.P.(M.V.)
No.416/2005 on the files of the II Additional Motor Accident Claims Tribunal, Kozhikode. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 22.08.2004. According to the appellant, while he was travelling in a car bearing Registration No.KL 07 W 9486, the said car collided with a bus bearing Registration No.KL 11 K 6435 driven by the 2nd respondent in a rash and negligent manner. The 1st respondent was the owner and the 3rd respondent was the insurer of the said bus. The appellant was 55 years old at the time of the accident, and he was a licensed building designer with a monthly income of Rs.7,000/-. He sustained serious injuries, and he had undergone inpatient treatment for a period of twenty days due to the accident. The claim petition was submitted in such circumstances.
2. The 3rd respondent/Insurance Company alone contested the matter by filing a written statement wherein
they admitted the coverage for the bus. However, they disputed the negligence as well as the quantum of compensation. The said claim petition was tried along with O.P.(M.V.) Nos.415/2005 and 417/2005, which arose from the very same accident.
3. The evidence in these cases consists of Exts.A1 to A11 series and Ext.C1. After the trial, the Tribunal came to the
conclusion that the accident occurred due to the negligence
of the 2nd respondent, and being the insurer of the bus, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.83,710/- and the said amount was directed to be deposited by the 3 rd respondent with interest @ 7% from 29.12.2004 till the date of deposit. This appeal is submitted in such circumstances seeking enhancement of compensation.
4. Heard Sri.P.R. Sreejith, learned counsel appearing for the appellant and Smt.Deepa George, learned counsel appearing for the 3rd respondent Insurance Company.
5. The only dispute in this appeal relates to the
quantum of compensation. The main grievance highlighted by the learned counsel for the appellant is that, even though a monthly income of Rs.7,000/- was claimed, the Tribunal took it as Rs.3,000/-, which was grossly inadequate. However, it is to be noted that even though the appellant claimed to be a licensed Building Designer, no document was produced to substantiate his profession or the income derived from such profession. In the said circumstances, the Tribunal took a notional amount of Rs.3,000/-. However, considering the fact that the accident occurred in 2004, the amount fixed by the Tribunal as monthly income appears to be on the lower side. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] the Honourable Supreme Court was pleased to fix the monthly income as Rs.4,500/- for an ordinary worker, even in the absence of any
evidence, for the year 2004. Therefore, I am of the view that, the amount of Rs.4,500/- can be taken as the monthly income in this case.
6. As there is no evidence showing the disability suffered by the appellant, the monthly income can have an impact only in respect of loss of earnings. The injuries suffered by the appellant are evident from Ext.A6 wound certificate, which are as follows:
1. Comminuted fracture right femur-middle 1/3.
2. Comminuted fracture right patella.
3. Fracture zygoma right.
4. Lacerated injury right eye brow and scalp.
It is also evident from records that he had undergone inpatient treatment for 20 days. Therefore, in all probabilities he must have been prevented from pursuing his avocation at least for a period of three months. Hence, compensation for loss of earnings is awarded for three months @ Rs.4,500/-. Thus, the amount would come to Rs.13,500/- and after deducting Rs.6,000/- already awarded by the Tribunal the
additional compensation would come to Rs.7,500/-.
7. The other heads, which require reconsideration,
are pain and suffering and loss of amenities. The amount awarded by the Tribunal towards pain and suffering was only Rs.12,000/- whereas the nature of injuries as referred to above coupled with the 20 days of hospitalization would certainly make the appellant eligible for a slightly higher amount. It is also a fact that the medical documents would show that implants were inserted as part of the treatment, and the specific case of the learned counsel for the appellant is that he had to undergo another surgery for the removal of the same. When considering the aforementioned aspect, I deem it appropriate to grant a further sum of Rs.18,000/- for pain and suffering. Considering the nature of the injuries, which are serious, and the impact of the same, I deem it appropriate to grant a further sum of Rs.17,000/- under the head of loss of amenities, as the amount of Rs.3,000/- already awarded by the Tribunal under this head appears to be inadequate. Thus,
the total additional compensation is determined to be Rs.42,500/-[7500+18000+17000]. In the light of the aforesaid observations and findings,
this appeal is allowed. Award dated 08.09.2010 in O.P.(M.V.) No.416/2005 passed by the II Additional Motor Accident Claims Tribunal, Kozhikode is hereby modified by granting and additional compensation of Rs.42,500/- (Rupees forty two thousand and five hundred only) with interest at the rate as ordered by the Tribunal with proportionate cost. The 3rd respondent shall deposit the said amount within a period of three months from the date of receipt of a copy of this
judgment.
Sd/- ZIYAD RAHMAN A.A. JUDGE scs