ABI.C.I., S/O IYYUKUTTY v. RAMANIYAH and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935** ## **MACA.No. 1663 of 2009** ## **-------------------------AGAINST THE AWARD IN OPMV 3065/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** **APPELLANT/PETITIONER:** - **---------------------------------------** ## **ABI.C.I., S/O.IYYUKUTTY,** **CHOWALLOOR HOUSE, ANDIPPILLY NAGAR, CHALIKKAVATTOM P.O.VENNALA, ERNAKULAM DISTRICT, (NOW RESIDING AT C/O.C.I.VARGHESE, S/O.IYYUKUTTY, CHOWALLOOR HOUSE CHATHAMKULAM, P.O.PATTIKKAD, THRISSUR DISTRICT.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------** **1. RAMANIAH, PROPRIETOR, M/S.RAVI BALA ROADWAYS, 32/424/B, VELAYUTHA HOUSE PADIVATTOM KARA, EDAPALLY SOUTH P.O., ERNAKULAM.** **2. KAMALAKANNAN, S/O.MAHALINGAM, MUTHAIYA STREET, VELLORE DISTRICT, WALAJAPET TAMILNADU.** **3. THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, THRISSUR.** **4. RAVINDRAN, S/O.RAGHAVAN, KANAYAPPILLY HOUSE, AZAD ROAD, KALOOR ERNAKULAM DISTRICT.** **R3 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ---------------------------------------------------------------------- M.A.C.A.No. 1663 of 2009 --------------------------------------------------------------------Dated this the 29[th] day of November, 2013 ## J U D G M E N T ## S. Siri Jagan, J The claimant in O.P.(M.V.).No.3065/2001 before the Motor Accidents Claims Tribunal, Thrissur, is the appellant herein. He suffered very serious injuries in the accident, caused by the negligent driving of a vehicle, owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. He filed the O.P., claiming compensation for the injuries and consequential disabilities sustained by him in the accident. The tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of earning|21, 000| |2|Expense for transportation|3, 000| |3|Expense for extra nourishment|4, 000| |4|Damages to clothing|500| |5|Damages to auto|18, 000| |6|Expense for treatment|2, 43, 300| |7|Expense for bystander|7, 700| |8|For pain and suffering|30, 000| |9|Compensation for disability|2, 01, 600| ||Total|5, 29, 100| M.A.C.A.No. 1663 of 2009 2 Dissatisfied with the quantum of compensation awarded by the tribunal, the appellant has filed this appeal, seeking enhanced compensation. 2. The accident was on 17.6.2001. At that time, the appellant was aged 36 years. He was a scrap iron dealer in Ernakulam. He was hospitalised for 77 days. Even thereafter, he was hospitalised on and of. He had to be hospitalised one year after the accident also for treatment of the injuries sustained in the accident. The counsel for the appellant submits that, in the above circumstances, the compensation awarded for loss of earnings, pain and suffering, bystander’s expenses etc., are on the lower side. It is submitted that, as a businessman in scrap iron, the appellant was earning around 20,000/- per month, despite which the tribunal₹ fixed the income only as 3,500/-, which is on the lower₹ side. It is submitted that, the disability certificate certified 45% disability, despite which, the tribunal adopted only 30% for the purpose of calculating loss of 3 M.A.C.A.No. 1663 of 2009 earning capacity. It is further submitted that, the tribunal has not awarded any compensation for loss of amenities in life. It is also submitted that, even the tribunal has noted the fact that, in 2008, when he appeared before the tribunal, he was still in crutches and the movements of his knee and hip joints were considerably reduced. Consequently, it is very clear that the appellant required future treatment as well, for which, no amounts have been awarded. The appellant seeks enhancement under all heads. 3. On the other hand, the learned counsel for the insurance company would strongly argue for sustaining the compensation awarded by the tribunal. He submits that the disability certificate had not been properly proved and therefore, the tribunal was right in adopting 30% as the physical disability for the purpose of calculating loss of earning capacity. It is further pointed out that, the multiplier is only 15, whereas the tribunal has adopted 16. He submits that the amounts awarded M.A.C.A.No. 1663 of 2009 4 ## under all heads are just and proper. 4. We have considered the rival contentions in detail. ## 5. The appellant suffered the following ## injuries: “head injury, bonny irregularity over knee right numerous compound fracture patella right with vascular deficit, compound fracture supracondylar left, compound fracture shaft of femur right and left compound fracture supracondylar femur right, cut lacerated wound lower of right knee, exposing bones, lacerated wound left leg, multiple small lacerations head multiple abrasion over body, multiple bodily injuries”. 6. On the face of it, it cannot be disputed that the appellant suffered very very serious injuries. In addition to that the tribunal noted that, in 2008, when the appellant appeared before the tribunal for giving evidence, he was using crutches for walking and the movements of his knee and hip joints were considerably reduced. From the same, it is evident that the appellant must have been out of action for quite sometime. Therefore we are inclined to award him one year’s loss of earnings. His driver who was also injured in the same accident had filed O.P.(M.V.).No.3064/2001 and M.A.C.A.No. 1663 of 2009 5 M.A.C.A.No.1311/2009 filed by the driver against the award in that O.P., we had re-fixed the income of the driver as 2,500/-. In such circumstances, the income of₹ the appellant fixed as 3,500/- by the tribunal is certainly₹ not commensurate with the income that the appellant must have been receiving, notwithstanding the fact that the appellant did not produce any acceptable evidence regarding the income. But with acceptable materials, he had proved that he was a businessman dealing in scrap iron. Therefore, we are inclined to fix the monthly income of the appellant as 5,000/-. That being so, for₹ one year, at the rate of 5,000/- per month, the appellant₹ is entitled to compensation for loss of earnings of ₹ 60,000/- instead of 21,000/- awarded by the tribunal.₹ The difference is 39,000/-. Although, the appellant did₹ not prove the disability certificate by examining the doctor who issued the same, we note that the same was issued by an Associate Professor and Orthopaedic Surgeon of Medical College Hospital, Thrissur. The same M.A.C.A.No. 1663 of 2009 6 cannot be lightly brushed aside. Therefore, for the purpose of adopting the percentage of disability, we are inclined to take assistance from that disability certificate. That disability certificate certified 45% disability. The disabilities have been noted in the same, which are: “(1) 2” shortening of (R) femoral segment with painful limping on (R) side and he needs support for ambulation (6%) (2) Irregular adherent scar on (R) knee with absent patella and lack of extension in last 30 degree (Active) (8%) (3) Partial ankylosis of (R) Knee with flexion possible only to 40 degree with severe subjective pain on attempted further flexion with crepitus and has difficulty even sitting on a chair (normal flexion 180 degree to 70 degree) (10%) 4) Malunited fracture femur (R) with 10 degree anterior anagulation of lower femur and 15 degree vasar angulation (8%) 5) Evidences of chronic osteomyelities (R) femur with recent exacerbation of osteomyelities (OM) (4%) 6) 10 degree equinus deformity of (R) ankle with contracture of calf muscles with evidences of vascular insufficiency of (R) leg with weak posterior tibial pulsation (6%) 7) Malunited shaft of femur (R) with 10 degree varus angulation of femur (4%) 8) Partial anklylosis of (R) hip with 15 degree external rotation defect with no external rotation of (L) hip. He has implant in the left femur and he needs further surgery in future (5%) M.A.C.A.No. 1663 of 2009 7 9) Old united fracture humerus (L) with partial ankylosis of (L) shoulder with limitation of abduction beyond 70 degree with pain. 10) 15 degree external rotation (L) humerus (4%)” 7. As we have already stated earlier, the tribunal had noted that, even in the year 2008, the appellant was using crutches for walking and movements of his knee and hip joints are considerably reduced. As a businessman dealing in scrap iron, he will have to travel extensively, which will be hampered by his disability. Therefore, we are inclined to adopt 40% for the purpose of calculating loss of earning capacity. But as rightly pointed out by the counsel for the insurance company, the correct multiplier to be adopted is 15 and not 16, in view of the decision in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** . Calculated on the basis of these inputs, the appellant is entitled to ₹ 3,60,000/-, as compensation for loss of earning power (5,000x12x15x14%), instead of 2,01,600/- awarded by₹ the tribunal. The difference would be 1,58,400/-. The₹ M.A.C.A.No. 1663 of 2009 8 tribunal has not awarded any amount towards compensation for loss of amenities in life. The appellant was 36 years old at the time of accident. He would loose many of his enjoyments in life, because of the disabilities suffered by him. Practically in his day to day life of the appellant would suffer very great inconveniences. Taking into account these aspects, we fix the compensation for loss of amenities in life as 60,000/-.₹ Considering the injuries and the fact that, the appellant was hospitalised for 77 days, and even in 2008, he was walking in crutches, we are inclined to enhance the compensation for pain and suffering to 40,000/- from₹ ₹30,000/-. The disability certificate certifies that, the appellant requires further surgery. Therefore, the appellant is entitled to expenses for future treatment. We fix the same as 10,000/-. Although, the counsel for the₹ appellant made a strenuous effort to persuade us to enhance compensation under other heads as well, we are satisfied that the amounts of compensation awarded by M.A.C.A.No. 1663 of 2009 9 the tribunal under other heads are just and proper. Therefore, we are not inclined to enhance compensation under those heads. Adding together, the appellant would be entitled to additional compensation of 2,77,400/-,₹ over and above what has been awarded by the tribunal. Out of the same, the amount of 2,67,400/- would carry₹ interest at the rate of 9% per annum from the date of the claim petition, till date of payment. The appellant would not be entitled to interest on the expenses for future treatment, since it is an expense, which has to be incurred in future. The 3[rd] respondent insurance company is directed to deposit this amount also within two months. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss