IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 MACA.No. 2474 of 2009(A) ------------------------------ OPMV.2372/2003 of II ADDL. M.A.C.T., KOZHIKODE .................... APPELLANT(S): CLAIMANT ----------------------------- SEBIN MATHEW, S/O.SAJU MATHEW, CHUNKAM MAKKAL, P.O.MUTHOLAPURAM, ELANHI, ERNAKULAM. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. N.I.GEORGE, S/O.IYPPU, NAMATTATHIL HOUSE, CHUNDATHUMPOYIL, P.O.PANANKAVE, MALAPPURAM. 2. NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, KORAMBAYIL ARCADE, MANJERI. 3. SALIN V.V., VELIKKATH HOUSE, P.O.PUNNAKKAL, THIRUVAMBADI, KOZHIKODE DISTRICT. 4. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, THAMARASSERY. ADV. SRI.SHEJI P.ABRAHAM SMT.RAJI T.BHASKAR FOR R2 SRI.RAJAN P.KALIYATH FOR R4 SRI.DEVAPRASANTH.P.J. FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ M. A. C. A. No.2474 of 2009 ------------------------------------------------ Dated this the 28th day of October, 2010 JUDGMENT Gopinathan, J At 4.15 p.m. on 16/10/02 while the appellant was travelling on the pillion of a motorcycle bearing Registration No.KL 11/K-4688 ridden by James Scaria, the uncle of the appellant, the motorcycle was hit down by a jeep bearing Registration No.KL-10 -C-9124 owned and insured by respondents 1 and 2. Consequently, the rider as well as the appellant sustained severe head injuries. The rider succumbed to the injuries. The appellant survived with 75% disability. Claiming a sum of Rs.4,25,000/- as compensation, the M. A. C. A. No.2474 of 2009 -2- appellant preferred O.P.2372/03 before the Motor Accident Claims Tribunal, Kozhikode with an allegation that the accident was caused because of negligence of the driver of the jeep and hence, respondents 1 and 2 are liable to compensate the appellant. 2. The respondents 1 and 2 denied the negligence attributed against the driver of the jeep and contended that the accident occurred because of the negligence of the rider of the motorcycle and that the respondents 1 and 2 are not liable to compensate the appellant and that the claim made is exorbitant. 3. The Tribunal below enquired the petition along with a connected petition filed by the legal M. A. C. A. No.2474 of 2009 -3- heirs of the rider. During the course of the enquiry, the appellant was examined as PW2. First petitioner in the other case was examined as PW1 and Exts.A1 to A14 and X1 were marked. The Tribunal on appraisal of the evidence on record arrived at a finding that the accident occurred because of the rash and negligent driving of the jeep and hence, respondents 1 and 2 are liable to compensate the appellant. Relying upon Ext.X1, the disability certificate issued by the Medical Board and other documents produced by the appellant, the Tribunal awarded a sum of Rs.2,93,149/- as compensation. Challenging the inadequacy of the compensation awarded this appeal was preferred. We heard learned counsel M. A. C. A. No.2474 of 2009 -4- appearing for the appellant as well as the second respondent. 4. The finding of the Tribunal that the accident occurred because of the negligent driving of the jeep by the first respondent was not challenged before us. Therefore, the liability to compensate the appellant had become final. The Tribunal gave reliance to Ext.X1 wherein it is certified that the appellant had sustained 75% disability and calculating the annual income of the appellant on notional basis at Rs.20,000/- and multiplying 75% of the annual income by 15 the compensation for disability was determined at Rs.2,25,000/-. Towards transport and extra nourishment charges Rs.2,000/- each was M. A. C. A. No.2474 of 2009 -5- awarded; towards damages to cloth Rs.250/- was awarded; towards bystander's expenses, though it is mentioned in Page 12 of the award that the appellant is entitled to a sum of Rs.10,000/-, in the tabulation portion only a sum of Rs.5,400/- was awarded; towards medical expenses basing upon the bills produced Rs.28,499/- was awarded; towards compensation for pain and suffering Rs.20,000/- was awarded and towards loss of amenities in life Rs.10,000/- was awarded. Hearing the learned counsel on either side, we find that the Tribunal was not justified in reducing the bystander's expenses at Rs.5,400/- after mentioning that a sum of Rs.10,000/- can be awarded on that count. Hence, the appellant is M. A. C. A. No.2474 of 2009 -6- entitled to a further sum of Rs.4,600/- towards bystander's expenses. 5. As regards the compensation on other grounds except compensation for disability, we find that the amount awarded by the Tribunal is just and appropriate and requires no interference. 6. Regarding the compensation for disability, the learned counsel for the appellant submitted that the multiplier adopted is in accordance with the schedule attached to the Motor Vehicle's Act. The learned counsel for the appellant submitted that the Tribunal went wrong in determining the notional income at Rs.20,000/-. According to the learned counsel, the appellant was well in his studies and that despite the accident and M. A. C. A. No.2474 of 2009 -7- sustaining 75% disability though one year was lost in his studies he pursued his studies and now is pursuing Chartered Accountancy course. The learned counsel had also produced the copies of the mark list of the Secondary School Leaving Certificate as well as the High Secondary examination. It is seen that the appellant has performed above average. Since Ext.X1 is not a speaking certificate we directed the appellant to be present in court. Accordingly, he appeared. We noticed his gait. He cannot walk steadily. We also feel that the 75% disability certified is correct. According to him, he is now preparing for Chartered Accountancy. He belongs to an agriculturist family, which owns more than 3 acres M. A. C. A. No.2474 of 2009 -8- of land having rubber and other cultivations. On land availability basis, we find that he belongs to a middle class family. It was further submitted that the appellant is belonging to an agriculturist family and now the family owns more than 3.5 acres of rubber and other cultivation and in that circumstances according to the learned counsel for the appellant, the notional income estimated by the Tribunal is too low. Having heard either side, we find that there is a little merit in the submission made by the learned counsel for the appellant and having due regard to the family background, intellectual ability and attendant circumstances, we are of the opinion that annual income for determining the disability can be M. A. C. A. No.2474 of 2009 -9- determined at Rs.25,000/-. If capitalised the compensation for disability would come to Rs.2,81,250/- instead of Rs.2,25,000/- now awarded and that would be a just and reasonable compensation towards the disability. Resultingly, we find that the appellant is entitled to a further sum of Rs.60,850/- towards compensation for disability. Thus, the total enhancement would come to Rs.65,450/- (60850 + 4600). The award under challenge requires enhancement to that effect. 7. We notice that had the appellant had a headgear, the disability sustained should have been much lesser. However, we did not think that for that reason, compensation is to be reduced. M. A. C. A. No.2474 of 2009 -10- 8. In the result, the appeal is allowed in part. The compensation awarded by the Tribunal would stand enhanced by Rs.65,450/-. Thus, the total compensation would be Rs.3,58,599/- (Rupees three lakh fifty eight thousand five hundred and ninety nine only) with future interest as awarded by the Tribunal. There will be no order as to costs. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-