ABI CHERIAN S/O.CHERIAN vs BASHEER C.P. S/O.PAREETH; NAZAR S/O.ANTHRU; THE NEW INDIA ASSURANCE COMPANY LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939 MACA.No. 2344 of 2012 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO.552/2006 of M.A.C.T, MUVATTUPUZHA DATED 9.7.2012 APPELLANT/PETITIONER: --------------------------- ABI CHERIAN S/O.CHERIAN, PENATTUKALAPURAYIL HOUSE, UDUMBANNOOR POST, THODUPUZHA. BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENTS/RESPONDENTS: ---------------------------------- 1. BASHEER.C.P. S/O.PAREETH, CHALIMALIPUTHENPURAYIL HOUSE, THALAKODE KARA, NERIAMANGALAM VILLAGE, PIN-686691. 2. NAZAR S/O.ANTHRU, ULLATTIL HOUSE, PALLARIMANGALAM, KOTHAMANGALAM-686691. 3. THE NEW INDIA ASSURANCE COMPANY LTD., MUVATTUPUZHA BRANCH-686661. R3 BY ADV.SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------M.A.C.A.No.2344 of 2012 -------------------------------Dated 5[th] July, 2017 ## **JUDGMENT** ## **Ravikumar, J.** A collision between the motorcycle bearing Reg.No.KL-6/B6705 and the mini lorry bearing Reg.No.KL-7/J-9860 caused injuries to the appellant, the motorcyclist. It is seeking compensation therefor that he filed O.P.(M.V)No.552 of 2006 before the Motor Accidents Claims Tribunal, Muvattupuzha, under Section 166 of the Motor Vehicles Act. He claimed a total compensation of 12,87,000/-. On the side of₹ the appellant, Dr.Tagi K. Thomas was examined as PW1 and Exts.A1 to A22 were got marked. No oral evidence was adduced by the respondents and on their side, the policy certificate in respect of the mini lorry was got marked as Ext.B1. On evaluating the evidence on record and appreciating the rival contentions, the Tribunal passed the impugned award granting an amount of 5,96,550/- as compensation.₹ The said amount was ordered to carry interest at the rate of 8% per annum from the date of the petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. M.A.C.A.No.2344/2012 2 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent insurance company. 3. In view of the absence of dispute regarding the liability of the third respondent to indemnify the second respondent, the insured owner of the vehicle, the sole question to be decided in this case is whether or not the appellant is entitled to get enhanced compensation. The learned counsel appearing for the appellant contended that the Tribunal has fixed his monthly income too low and has also wrongly assessed the extent of loss of earning power. It is submitted that the erroneous fixation/assessment of the aforesaid factors deprived the appellant just compensation. It is also the submission of the learned counsel that the Tribunal has granted only a consolidated amount of ₹25,000/- towards general expenses after lumping certain pecuniary and non-pecuniary losses. It is the further submission that under the heads `pain and suffering' and `loss of amenities' the appellant was inadequately compensated. In short, the contention is that the compensation assessed by the Tribunal under different heads require upward modification. Per contra, the learned counsel appearing for the third respondent insurer contended that considering the nature of injuries sustained in the accident, as revealed from the treatment records, the Tribunal has granted adequate and reasonable M.A.C.A.No.2344/2012 3 compensation and therefore, no appellate interference is called for. 4. Having given our anxious consideration to the rival contentions, we are of the considered view that an appellate interference is inevitable in this case. The accident in which the appellant sustained injuries had occurred on 14.12.2005 at 2 p.m.. He was then aged 39 years. In the claim petition it is averred that he was then working as small savings scheme agent and was earning a sum of ₹3,500/-. However, no evidence was adduced by the appellant to establish such contentions taken up in the claim petition regarding occupation and income except production of Exts.A20 and A22. The details of commission being received would not and could not be a proof regarding his regular income though they indicate his avocation. However, taking note of the year of the accident and the age of the appellant at the time of the accident, we are of the view that there was absolutely no reason to disbelieve the claim of the appellant that he was earning 3,500/- per month. The Tribunal has taken only 3,000/- for₹ ₹ calculation purpose. We are inclined to take the monthly income for calculation purpose as ₹3,500/-. The Tribunal has adopted the multiplier applicable in this case, with reference to the age of the injured appellant as `16'. Going by the records, the appellant was aged 39 years. In such circumstances, in terms of the schedule given in the M.A.C.A.No.2344/2012 4 ## decision in _**Sarla Verma v. Delhi Transport Corporation (2010 (2)**_ _**KLT 802 (SC))**_ the multiplier applicable to persons belonging to the age group of 36-40 years is `15'. Hence,the multiplier applicable in this case is to be taken as `15'. Ext.A18 is the disability certificate issued by a duly constituted Medical Board. One of the members of the said Medical Board was examined as PW1. Evidently, the Tribunal took the entire percentage of disability certified thereunder viz., 40%. 5. A perusal of the impugned judgment would reveal that the Tribunal has also noted the physical condition of the appellant on his appearance before it. The said fact is revealed from the following recital in the impugned judgment:- “There was deep depressed scars on both the calfs and the wound on the left calf of its ankle was infected even at the time of his appearance before this Tribunal. Ext.A21 photographs would also evidence the said fact. Hence, the petitioner is entitled for a compensation under the head deformity and disfigurement also.” Taking note of the aforesaid recital and the nature of injuries sustained by him and their impact and nature of the treatment undergone by the appellant, as discussed in the impugned judgment, we are of the view that the loss of earning capacity ought to have been assessed properly instead of taking it only as 40% accepting the permanent disability M.A.C.A.No.2344/2012 5 certified under Ext.A18. As per the evidence of PW1 with Ext.A18 disability certificate the appellant had incurred the following disabilities due to the injuries sustained in the accident:- - “1. Partial ankylosis of right knee joint and right ankle. 2. Anterior bowling of right leg and shortening of right leg. 3. Loss of sensation anterio medical apsect of right leg. 4. Movements of the substalar joints (inversion and eversion) restricted. 5. Movements of the first meta tarso phallangeal joint of big toe and little toe restricted. 6. He also had partial ankylosis of right wrist and meta carpo phalangeal joint of 5[th] and 4[th] fingers.” The contention of the appellant is that he was working as small savings scheme agent. As a small savings scheme agent or as a manual worker his physical condition as noticed, would adversely affect his earning capacity. In such circumstances, we are inclined to take 50% as the loss of earning capacity. With the re-fixed multiplicand as also the multiplier and the re-assessed extent of loss of earning capacity if the compensation is calculated, the appellant is entitled to get an amount of ₹3,15,000/- (3,500x12x15x50/100). The Tribunal has granted an amount of 2,30,400/- reckoning his permanent disability. After₹ deducting the said amount, the appellant is entitled to get an amount of ₹84,600/- additionally under that head. The Tribunal has taken the period for the purpose of calculating compensation for loss of earning as 12 months. We do not propose to interfere with the same. However, M.A.C.A.No.2344/2012 6 the amount payable thereunder is bound to be re-assessed based on the re-fixed monthly income and accordingly the appellant is entitled to get 6,000/- additionally. It is granted. Evidently, the Tribunal has₹ lumped certain pecuniary and non-pecuniary losses and granted an amount of 25,000/- as compensation under the compendious title₹ `general expenses'. In fact, under the said head, the Tribunal has granted compensation for damage to cloth, transport to hospital, extra nourishment and attendance expenses. The appellant had more than 200 days of hospitalisation under different spells. If 200 days is taken for the purpose of assessing compensation for bystander's expenses at the rate of 150/-, taking into account the year of the accident, the₹ appellant would be entitled to get an amount of 30,000/- and for the₹ same days, at the rate of 100/- per day, he would be entitled to get an₹ amount of 20,000/- towards extra nourishment. Subsequent to his₹ initial admission and discharge he was re-admitted in the hospital on three occasions. Taking into account such aspects, we are inclined to take 6,000/- as the amount payable towards transportation expenses.₹ Towards damage to clothings the appellant is entitled to get an amount of 1,000/-. Thus, if the compensation/amount of expenses under the₹ aforesaid heads are assessed, the appellant is entitled to get a total amount of 57,000/-. The Tribunal has already granted an amount of₹ ₹25,000/- under the head `general expenses'. Thus, an amount of M.A.C.A.No.2344/2012 7 ₹32,000/- (57,000 - 25,000) is granted additionally under the said head. Towards pain and suffering, the Tribunal has granted only an amount of 25,000/-. Exts.A7 and A8 wound certificates would reveal₹ that he had sustained compound fracture on right leg tibia and fibula (exposed), lacerated wound over the knee joint and soft tissue loss on right leg. Ext.A9 treatment certificate would reveal that he was treated with wound debridement and transarticular external fixator was done. The proximal tibia was completely shattered and therefore, percutaneous fixation of tibial condyle was done. The wound debrided raw area was resurfaced with SSG and soft tissue defect and tibial defect were reconstructed with left fibula osteo septocutaneous flap. Taking note of the surgeries and such treatments undergone by the appellant, we are of the view that it is only just and proper to grant an amount of 20,000/- in addition to the amount granted by the Tribunal₹ towards pain and suffering. It is granted. Taking into account the aforesaid aspects and also the long period of hospitalisation and the extent of disability sustained by him in the accident, we are of the view that the compensation granted for loss of amenities is also to be modified as evidently, he was deprived of enjoyment of life for very long period. The Tribunal has granted only an amount of 20,000/-.₹ We are inclined to grant 25,000/- in addition to that. ₹ M.A.C.A.No.2344/2012 8 6. In the light of the enhancement made by us under the aforesaid heads, the appellant is entitled to get a total additional compensation of ₹1,67,600/(84,600+6,000+32,000+ 20,000+ 25,000). It is awarded. The said additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. The third respondent is directed to deposit the said amount of additional compensation along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. The appeal is disposed of accordingly. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS