BY AD vs SRI.THOMAS ABRAHAM (NILACKAPPILLIL)

BY ADV SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 130 OF 2014 2 J U D G M E N T The petitioner in O.P.(M.V.) No.1072/2010 on the file of the Motor Accident Claims Tribunal, Pala, is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal).

2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 27.10.2010. According to the petitioner, on

27.10.2010 at about 09.00 a.m., while she was riding pillion on a motorcycle, an autorickshaw bearing Registration No.KL-39/8252 driven by the 1st respondent in a rash and negligent manner hit on the motorcycle. As a result of the accident, the petitioner sustained serious injuries.

3. The 1st respondent is the owner cum driver and 2nd respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.3,95,000/- limited to Rs.3,00,000/-.

4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver MACA NO. 130 OF 2014 3 of the offending vehicle.

5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A14 and X1 and X1.

6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.1.49,500/- and directed the insurer to pay the same.

7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is the following: Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

9. Heard Sri.Thomas Abraham, the learned Counsel appearing for the petitioner/appellant, and Sri.P.M.M. Najeeb Khan, the learned Standing Counsel for the 2nd respondent.

10. The Point: In this case the accident as well as valid policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal at Rs.18,000/- per year. According to the petitioner during the relevant period she was B.Com student studying in B.B College, Tirur and was also a part time tuition teacher. She claimed that from the tuition she used to get an income of Rs.6,000/-. However, the tribunal has fixed her annual income at MACA NO. 130 OF 2014 4 Rs.18,000/-.

11. The learned counsel would argue that as per the decision of the Hon’ble Supreme Court in the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the notional income of a coolie during the year 2010 will come to Rs.7,500/- and as such the notional income of the petitioner who is a B.Com student is to be fixed over and above that of a coolie. In the decision in M.S.Saidhu v. Thomas [MACA No.877 of 2014] for a B.Com student involved in an accident in the year 2007, this Court has fixed the notional income at Rs.10,000/-. In Aswathy v. Ayoob [MACA No.2316 of 2016] in the case of B.Com graduate involved in an accident of the year 2011, the notional income was fixed by this Court at Rs.12,000/-. In the above circumstance, considering the fact that in this case, the accident was in the year 2010, her notional income is fixed at Rs.11,000/-.

12. In the accident the petitioner sustained lacerated wound over the scalp, lacerated wound 5 x 4 cm on the anterior aspect of mid 1/3rd of right leg with bone exposed out. X-ray showed comminuted fracture both bones of the right leg. Type II B open comminuted fracture both bones of right leg lower third, laceration scalp, abrasion left elbow.

13. Ext.X1 disability certificate shows that the petitioner suffered 12% permanent physical disability. It was issued by the medical board. The Tribunal, however, scaled down the percentage of disability of the petitioner to 10%, MACA NO. 130 OF 2014 5 without assigning valid and cogent reasons. The law is settled that, if the Tribunal is not satisfied with the disability certificate produced by the petitioner, the remedy is to refer him to a medical board or higher Authority.(See Manikantan G. v. Janardhanan Nair and Others, 2021 (5)KHC 305). Having not done so, the Tribunal was not justified in scaling down the percentage of disability from what is shown in the disability certificate. I do find any grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 12%.

14. On the date of accident, the petitioner was aged 19 years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 18, as held in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121. In the above circumstances, the loss of disability will come to Rs.3,99168/-.

15. Towards loss of earning, the tribunal has awarded only Rs.4,500/- being the income for 3 months @ Rs.1,5000/-. Considering the nature of the injuries sustained and the percentage of disability suffered by the petitioner, the petitioner might have lost income at least for a period of 6 months. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs.66,000/- (11,000 x 6 months).

16. Towards the head ‘pain and sufferings’, the Tribunal has awarded MACA NO. 130 OF 2014 6 Rs.25,000/-. Towards 'extra nourishment' Rs.1,000/- was awarded and Rs.1,800/- towards ‘bystander expenes’. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side.

17. The petitioner sustained very serious injuries in the accident and was treated as inpatient for 10 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'extra nourishment' and ‘bystandser expenses’ are on the lower side and hence they are enhanced to Rs.50,0000, Rs.3,000/- and Rs.2,500/- respectively.

18. Towards the head ‘loss of amenities’ the tribunal has not awarded any compensation. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I am inclined to grant Rs.30,000/- on the head loss of amenities.

19. The learned counsel would argue that in connection with the fracture of both bones of right leg implant was inserted and it was not yet removed and in that respect, she requires a sum of Rs.50,000/-. She has also relied upon the evidence of PW1. In that aspect, a certificate was produced before the tribunal. However, it is not seen marked. The learned counsel has passed over a copy of the afore certificate issued from Matha Hospital, Kottayam, for perusal. It shows that towards removal of implant a sum of MACA NO. 130 OF 2014 7 Rs.50,000/- is required. The accident is of the year 2010. The petitioner has not produced any receipts to prove the expenditure in that aspect. However, from the evidence it is revealed that because both bones of right leg were fractured fixation was made and as such she requires expense for it’s removal. Therefore, I am inclined to allow a sum of Rs.25,000/- towards future medical expenses, which will carry interest only from the date of the judgment.

20. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable.

21. Therefore, the petitioner/appellant is entitled to get a total compensation of Rs.6,60,418/-, as modified and recalculated above and given in the table below, for easy reference. Head of Claim Amount awarded by Amount Awarded Tribunal (in Rs.) in Appeal (in Rs.) Sl. No. 1 2 3 Loss of earning Transport to hospital Extra nourishment 4 Medical expenses 5 Bystander expenses 6 Pain and suffering 7 Disability 4,500 2,000 1000 77,750 1,800 25,000 32,400 66,000 2,000 3000 77,750 2,500 50,000 3,99,168 MACA NO. 130 OF 2014 8 8 9 Loss of academic year Loss of amenities 10 Future treatment Total 5,000 30,000 25,000 6,60,418 5,000 Nil Nil 1,49,450 (rounded to Rs.1,49,500) Enhanced to Rs. 5,10,918

22. In the result, this Appeal is allowed in part, and the 2nd respondent is directed to deposit a total sum of Rs.6,60,418/- (Rupees Six Lakh Sixty Thousand Four Hundred and Eighteen Only), less the amount already deposited, if any, along with interest at the rate of 8% per annum, from the date of the petition till deposit/realisation, with proportionate costs, within a period of two months from today.

23. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- SMA C. PRATHEEP KUMAR, JUDGE