B.Biju Vs Managing Director

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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FRIDAY, THE 9^TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945

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MACA NO. 1721 OF 2013

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AGAINST THE ORDER/JUDGMENT OPMV 553/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE

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APPELLANT/S:

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B.BIJU
AGED 39 YEARS
S/O.RAMAN,RESIDING AT BAPPAYIL
MEETHAL,P.O.ERANJIKKAL,KOZHIKODE.
BY ADVS.
SRI.V.S.CHANDRASEKHARAN
SRI.M.V.DAS
SMT.LEKSHMI SWAMINATHAN

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RESPONDENT/S:

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1MANAGING DIRECTOR
ACE MOTORS PRIVATE LIMITED,LEELA TOWERS,KALLAI
ROAD,KOZHIKODE-673003.

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2V.M.SHYJU
AGED 30 YEARS
S/O.VASU,RESIDING AT KALHAR
VEEDU,P.URAKKATTIRI,P.O.THALAKULATHOOR,KOZHIKODE-
673010.

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3NATIONAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE-II,P.B.NO.81,NOOR COMPLEX,2ND
FLOOR,MAVOOR ROAD,KOZHIKODE-673006.
BY ADV SMT.P.K.SANTHAMMA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA No. 1721 of 2013

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JUDGMENT

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Dated this the 09^th day of February, 2024

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The appellant was the petitioner in O.P.(M.V)
No.553/2012 on the files of the Principal Motor Accident
Claims Tribunal, Kozhikode. The said claim petition was
submitted by the appellant seeking compensation for the
injuries sustained in a motor accident that occurred on
19.07.2011. According to him, the accident occurred when

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the motorcycle ridden by him was hit by another
motorcycle coming from the opposite direction. The
second respondent was the rider of the said motorcycle.
It was owned by the 1st respondent and was insured with
the 3rd respondent.

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2.The appellant was 39 years old and was working
as a helper in Mathrubhumi with a monthly income of
Rs.19,000/-. According to him, he sustained serious
injuries, which resulted in physical disability, and the
claim petition was submitted in such circumstances.

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3.The 3rd respondent alone contested the matter
by filing a written statement wherein they accepted the
coverage of policy for the motorcycle. However, they
denied negligence on the side of the 2nd respondent, and
the quantum of compensation was also disputed.

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MACA No. 1721 of 2013

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4.The evidence in this case consists of Ext.A1 to
A6 from the side of the appellant, and no evidence was
adduced by the respondents. The tribunal, after
appreciating the materials, arrived at the conclusion
that the accident occurred due to the negligence of the
2nd respondent in riding the motorcycle insured with the
3rd respondent. Accordingly, the 3rd respondent was held
liable to pay the compensation, which was fixed as
Rs.1,00,854/- with 7% interest from the date of petition
till the realisation with proportionate cost. This appeal
is submitted in such circumstances by the appellant for
enhancement of the compensation.

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5.Heard Sri. V.S.Chandrasekharan, the learned
counsel appearing for the appellant and Smt.
P.K.Santhamma, the learned counsel appearing for the 3rd
respondent insurance company.

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6.The only issue that arises for consideration is
whether the amount fixed by the tribunal is reasonable or
not. After perusing the records on both sides, I find
that the amount awarded by the tribunal does not qualify
‘just compensation’ which is required to be awarded to
the victim. The first aspect to be noticed is the amount
awarded towards disability and the consequential loss of

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MACA No. 1721 of 2013

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earnings capacity. The monthly income determined by the
tribunal for assessing the said compensation was
Rs.3500/- even though the claim in this regard was
Rs.19000/-. Of course, it is true that even though the
claim of the appellant was to the effect that he was
working as a helper in Mathrubhumi, no evidence to show
the same was produced. Therefore, the monthly income has
to be fixed by adopting the criteria that are usually
followed for assessing the monthly income of other
employees. The said method of compensation can only be on
the basis of principles laid down by the Hon’ble Supreme
Court in Ramachandrappa vs. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13 SCC 236] by
fixing the basic monthly income as Rs.4500/- for the year
2004 and making an addition of Rs.500/- per year to
determine the monthly income for the subsequent years.
When that method of computation is adopted, for the year
2011, the monthly income can be reasonably fixed as
Rs.8000/-. The said amount can be fixed as a monthly
income in this case, in the absence of better evidence.

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7.The next element for assessing the

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compensation for disability is the percentage of
disability. Ext.A4 disability certificate issued by a
doctor was relied on to substantiate the said

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MACA No. 1721 of 2013

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contention. As per the said disability certificate, 29%
disability was certified, but the tribunal accepted only
10%. The reason for scaling down the percentage of
disability was that, what was certified in Ext.A4 was
the disability with respect to the particular limb and
not the whole body disability. The said finding appears
to be probable when carefully going through the contents
of the Ext.A4 certificate and the nature of injuries
sustained by the appellant. Therefore, I do not find any
necessity to interfere with the award as far as the
percentage of disability is concerned.

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8.Thus, while reassessing the monthly income,
the amount to be awarded under the head of disability
comes to Rs.144000/-(8000 x 12 x 15 x 10/100). The
amount already awarded by the tribunal is Rs.63,000/-
and thus an additional amount of Rs.81000/-.

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9.The amount awarded by the tribunal towards
pain and suffering is Rs.15,000/-. It is evident from
the records that the injuries sustained by the appellant
include bilateral knee maxillary fracture with
hemosinus, tear of MCL, LCL, avulsion fracture medial
condyle femur, fracture posterior tibial spine, gross
hemarthrosis with soft tissue swelling knee. Consequent
to the injuries he sustained, he underwent

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MACA No. 1721 of 2013

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hospitalisation for a period of 9 days and even after
his discharge, he continued the treatment as an
outpatient. In such circumstances, I deem it appropriate
to grant a further sum of Rs.15,000/- in the said
category.

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10.The amount awarded towards loss of amenities
was Rs.5000/- which is very meagre. It is evident that
he sustained serious injuries and physical disability as
well. Evidently, he has to live with that disability
throughout his life, which will affect the quality of
his life. Therefore, he should be adequately compensated
for the same and I deem it appropriate to grant a
further sum of Rs.20,000/- under the said head.

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11.Since the monthly income of the appellant is
revised as Rs.8000/-, he is entitled to an additional
compensation under the head of loss of earnings. The
tribunal awarded compensation under this head for a
period of 3 months, and the said period appears to be
reasonable based on the materials placed on record.
Accordingly, an additional compensation of Rs.13,500/-
(8000 x 3 -1 0500) is awarded for loss of earnings. Thus
the total additional compensation is determined as
Rs.1,29,500/- [81000 + 15000 + 20000 + 13500].

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MACA No. 1721 of 2013

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In the result, this appeal is allowed. The award
dated 15.12.2012 in O.P.(M.V)No.553/2012 on the files of
Principal Motor Accident Claims Tribunal, Kozhikode, is
hereby modified by granting additional compensation of
Rs.1,29,500/- (Rupees one lakh, twenty nine thousand and
five hundred only) which shall be deposited by the 3rd
respondent insurance company, along with interest as
ordered by the tribunal and with proportionate costs,
within a period of three months from the date of
receipt of copy of this judgment.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

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SM

B.Biju v. Managing Director

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B.Biju v. Managing Director

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