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2017 DIGILAW 1211 (KER)

T. K. Akshay Kumar v. Branch Manager United India Insurance Company Limited

2017-09-13

ANU SIVARAMAN, C.T.RAVIKUMAR

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JUDGMENT : Anu Sivaraman, J. 1. This appeal is preferred by the injured-claimant against award dated 17.6.2016 passed by the Motor Accidents Claims Tribunal, Wayanad, Kalpetta in O.P.(MV)No.252 of 2015. The case of the appellant/claimant was that on 21.11.2014, while he was travelling as a pillion rider on a motor cycle bearing Reg.No.KL-12/J-5046, a goods autorickshaw bearing Reg.No.KL-12/E-7198 hit on the motor cycle. As a result, the appellant/claimant sustained grievous injuries and was taken to DM WIMS Hospital, Meppadi and later shifted to MIMS Hospital, Kozhikode. He filed the claim petition claiming a compensation of Rs.4,00,000/-. 2. Respondents 1 and 2, who were the driver and owner of the autorickshaw, did not file written statement. The third respondent insurer filed written statement admitting the insurance coverage of the offending vehicle, but denying negligence on the part of the first respondent as well as disputing the quantum of compensation claimed. 3. Considering the evidence adduced, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw by the first respondent. The third respondent was found liable to pay compensation on account of the valid policy of insurance. As regards the amount due to the appellant/claimant as compensation, it was found that he had suffered closed fracture shaft and neck of femur right side and open knee injury to the right side. Going by the documents produced, the Tribunal found that the appellant/claimant had been admitted to DM WIMS Hospital, Meppadi immediately after the accident and discharged on 27.11.2014. He was again admitted in MIMS Hospital on 18.2.2015 for cancellous bone grafting and was discharged on 21.2.2015. The notional monthly income of the appellant/claimant was taken as Rs.5,000/- and Rs.30,000/- was awarded as compensation for loss of earnings for a period of six months on account of the injuries suffered by him. A further amount of Rs.1,500/- each was awarded towards extra nourishment and bystander's expenses and an amount of Rs.2,16,000/- was awarded as compensation for permanent disability taking the notional monthly income as Rs.5,000/-, the multiplier as 18' and the disability as 20%. An amount of Rs.3,98,250/- was awarded by the Tribunal. This appeal is preferred by the claimant dissatisfied with the quantum of compensation awarded by the Tribunal. 4. An amount of Rs.3,98,250/- was awarded by the Tribunal. This appeal is preferred by the claimant dissatisfied with the quantum of compensation awarded by the Tribunal. 4. It is contended by the learned counsel for the appellant that it had been specifically pleaded before the Tribunal that the appellant/claimant was an engineering student-cum-salesman and that he was earning Rs.10,000/- per month. It is contended that though there was no evidence adduced to prove the occupation of the appellant/claimant, the notional monthly income claimed by him was perfectly reasonable and the same ought to have been accepted by the Tribunal. It is further contended that the appellant/claimant had to discontinue with his studies due to injuries sustained in the accident. It is contended that no amount has been awarded towards loss of earning power and interruption of education of the appellant had also not been taken note of by the Tribunal. The learned counsel for the appellant also submits that amounts awarded towards bystanders expenses, extra nourishment, damage to clothing etc. are quite meagre. 5. Heard. 6. We have considered the contentions advanced with reference to the findings in the judgment under appeal. It is seen that the claim raised by the appellant was that he was an engineering student cum salesman. No material had been produced before the Tribunal to prove the occupation of the appellant/claimant. The petitioner had claimed that he was earning a monthly income of Rs.10,000/-. However, he did not adduce any oral evidence on this point either. In the above circumstances, we find that the Tribunal was justified in arriving at the conclusion that the notional income of the appellant, who was aged 19 years, can be fixed at Rs.5,000/- per month. In the absence of any evidence, oral or documentary, to prove the occupation or income of the appellant/claimant, the finding of the Tribunal cannot be found fault with. 7. It is found that the appellant/claimant had suffered grievous injuries in the accident. The effect of the accident and the manner in which it happened is not disputed by the respondent either. The Tribunal also relied on the disability certificate produced by the petitioner showing a disability of 20% on account of the injuries sustained in the accident. 7. It is found that the appellant/claimant had suffered grievous injuries in the accident. The effect of the accident and the manner in which it happened is not disputed by the respondent either. The Tribunal also relied on the disability certificate produced by the petitioner showing a disability of 20% on account of the injuries sustained in the accident. The Tribunal has also accepted the contention of the appellant/claimant that he was disabled for six months due to the injuries and awarded compensation taking note of loss of earnings for a period of six months. In the above circumstances, we find that the Tribunal has erred in not awarding any compensation whatsoever towards loss of amenities. Taking note of the injuries suffered by the petitioner and the repeated hospitalisation that he had to suffer and the bone grafting done which has been taken note of by the Tribunal, we find that the Tribunal ought to have granted compensation for loss of amenities as well. The appellant/claimant being a young man aged 19 years at the time of accident, taking note of the injuries, we are of the opinion that he will be entitled for an amount of Rs.30,000/- towards loss of amenities. 8. The appellant/claimant had approached the Tribunal seeking compensation specifically averring that he was an engineering student. It is clear from a reading of the impugned award that the injuries suffered by the appellant/claimant were quite serious and it resulted in his being seriously disabled at least for six months. In the above circumstances, we are of the opinion that the claim raised by the appellant/claimant that his education was disrupted and he had to discontinue his studies is quite acceptable. We are of the opinion that an amount of Rs.20,000/- ought to have been awarded towards loss of studies which the appellant/claimant had to suffer on account of the accident. We do so. 9. With regard to the compensation awarded under the head bystanders expenses, we are of the opinion that an amount of Rs.200/- per day ought to have been allowed under that head. The Tribunal has awarded only Rs.150/- per day for ten days as bystanders expenses. In the above circumstances, we award a further sum of Rs.500/- towards bystander's expenses. As regards damage to clothing also, we are of the opinion that an amount of Rs.1,000/- under that head would be reasonable. The Tribunal has awarded only Rs.150/- per day for ten days as bystanders expenses. In the above circumstances, we award a further sum of Rs.500/- towards bystander's expenses. As regards damage to clothing also, we are of the opinion that an amount of Rs.1,000/- under that head would be reasonable. In the above circumstances, we grant an amount of Rs.250/- towards additional compensation as damage to clothing. In the result, the appeal is allowed in part. The appellant would be entitled to a further aggregate amount of Rs.50,750/- over and above the compensation awarded by the Tribunal. The enhanced amount of compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. The third respondent insurer shall deposit the said amount along with interest within a period of one month from the date of receipt of a copy of this judgment. No order as to costs.