ABOOBACKER S.S. v. VIMAL VARGHESE & M/S. NATIONAL INSURANCE 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 THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939 MACA.No. 1339 of 2008 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.559/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 01-02-2008 APPELLANT/CLAIMANT: ------------------------- ABOOBACKER S.S., S/O.SULAIMAN, ENNEMPLAYIL HOUSE, VATTAKKATTUPADI, PERUMBAVOOR. BY ADV. SRI.M.P.MOHAMMED ASLAM ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. VIMAL VARGHESE, S/O.VARGHESE, MOLOTH HOUSE, RAYAMANGALAM VILLAGE, KEEZHILLAM KARA. 2. M/S.NATIONAL INSURANCE COMPANY LTD., PB.NO.24, MULLAPPILLY BUILDING, PERUMBAVOOR. R2 BY ADV. SRI.E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- M.A.C.A.No.1339 of 2008 -------------------------------Dated 22[nd] June, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the judgment and award dated 1.2.2008 passed by the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(M.V)No.559 of 2003. The injured petitioner is the appellant herein. On 26.12.2002 when he was riding his scooter through Old Muvattupuzha road from north to south, a motor cycle bearing Reg.No.KL-7/N-2088, ridden by the first respondent came from the opposite direction and the two vehicles collided. As a result of the collision, the appellant sustained injuries. He was taken to hospital and remained as an inpatient for a period of 16 days. The injuries sustained by him resulted in permanent disability. The appellant filed the claim petition under Section 166 of the Motor Vehicles Act claiming a total compensation of 3,00,000/-. The evidence of the appellant consists₹ of the oral evidence of one Dr.Raman (PW1) and documentary evidence consisting of Exts.A1 to A9. No evidence, oral or documentary, was adduced by the respondents. The Tribunal as per the impugned award assessed an amount of 1,15,380/- as the compensation and by virtue₹ M.A.C.A.No.1339/2008 2 of its finding that the appellant had also contributed to the accident and pursuant to the apportionment of contributory negligence from his part as 50% only 50% of the amount assessed was awarded viz., 57,690/-₹ rounded off to 57,800/-. It is seeking enhancement of the quantum of₹ compensation that this appeal has been preferred. 2. Heard the learned counsel for the appellant as also the learned counsel appearing for the second respondent insurance company. 3. It is submitted by the learned counsel on both sides that the only question to be considered in this appeal is regarding the entitlement of the appellant to get enhanced compensation. This is a case where there is no dispute regarding the accident, cause of the accident as also the liability of the second respondent insurance company to indemnify the first respondent to the extent he was found liable. As noticed hereinbefore, the Tribunal found that the cause of the accident is nothing but the composite negligence from the part of the riders of the vehicles which are two wheelers. Since the claim petition was filed by the rider of the scooter certainly, to the extent he contributed in the accident he is not entitled to get compensation. Evidently, the Tribunal based on the evidence on record held that both the riders viz., the appellant and the first respondent are equally liable M.A.C.A.No.1339/2008 3 for the accident. To arrive at such a conclusion the Tribunal virtually relied on Ext.A2 scene mahazar and Ext.A4 AMVI report relating the motor cycle and the scooter which was ridden by the appellant. On analysing the evidence, the Tribunal found that the accident occurred almost on the middle portion of the road . When the vehicles involved in the accident are two wheelers certainly, if any one of them was diligent and careful the accident could have been avoided. On carefully considering the discussion of the reasoning of the Tribunal for arriving at the finding that the riders of both the vehicles have equally liable for the accident, we do not find any reason to interfere with the said conclusion arrived at by the Tribunal based on the evidence on record. 4. The learned counsel for the appellant submitted that disregarding the fact that the accident had occurred in the year 2002 and the appellant was then aged only 34 years the Tribunal has fixed the monthly income of the appellant notionally at 2,000/- and it is the₹ erroneous fixation of the monthly income that resulted in deprival of due compensation. The learned counsel for the second respondent submitted that the Tribunal wrongly identified the multiplier as `17' with reference to the age of the injured appellant and considering his age, the multiplier ought to have been fixed only as `16'. The learned counsel for the appellant further contended that the Tribunal also went wrong in assessing the permanent disability for the purpose of M.A.C.A.No.1339/2008 4 computing compensation for permanent disability. Ext.A8 is the disability certificate issued by Dr.Raman then attached to the Taluk Headquarters Hospital, Perumbavoor. He was examined before the Tribunal as PW1. When the doctor who treated him and issued the certificate was examined before the Tribunal, the Tribunal ought not to have effected any reduction of the percentage of disability assessed by the doctor without assigning specific reasons thereof. On a scanning of the impugned judgment it is evident that no specific reason has been given by the Tribunal in not accepting the certification of permanent disability made by PW1 in Ext.A8. As per Ext.A8, the whole body disability was assessed by PW1 as 6%. In the light of the decision of the Hon'ble Apex Court in **Raj Kumar** v. **Ajay Kumar (2011 (1) KLT 620)** when a doctor who had treated an injured and issued the disability certificate was examined before the Tribunal and if his evidence is not shattered certainly, assessment of disability by the doctor can be accepted. In such circumstances, we do not find any reason for effecting any reduction in the permanent disability and a re-assessment of the compensation for permanent disability has to be effected. Now, the question is whether the contention of the appellant that the Tribunal fixed the monthly income erroneously and it resulted in denial of just compensation is correct or not. For appreciating the said contention the year of the accident as also the age of the appellant at the time of the accident have to be taken into account, especially, in M.A.C.A.No.1339/2008 5 the light of absence of cogent evidence regarding the occupation and monthly income. The appellant was aged 34 years at the time of the accident and the accident occurred on 26.12.2002. Since there is no evidence regarding the occupation and income we are of the considered view that the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC**_ _**236)**_ can be taken for guidance. True that, in that case, the accident occurred in the year 2004 and in respect of a coolie, the injured in the said accident, the Apex Court fixed 4,500/- as the monthly income.₹ The accident in question occurred prior to the accident involved in **Ramachandrappa's** case (supra). Taking into account the aforesaid aspects, we are of the view that it is only proper and just to fix the monthly income of the appellant for calculation purpose notionally as ₹3,500/-. Accordingly, it is fixed. Based on the re-fixed monthly income, the correct multiplier as also the re-assessed percentage of permanent disability, the compensation for permanent disability has to be re-assessed. On such re-assessment, the appellant would be entitled to get an amount of 40,320/- (3500x12x16x6/100). The₹ Tribunal has already granted an amount of 16,320/- under that head.₹ Hence, the additional compensation payable under that head is ₹24,000/-. Then, based on the re-fixed monthly income and retaining the period of loss of earnings fixed by the Tribunal the appellants would be entitled to get an amount of 6,000/- (3500x4-8000) additionally.₹ M.A.C.A.No.1339/2008 6 The nature of the injuries as revealed from Exts.A6 and A7 certificates are to be looked into for the purpose of considering the contention that the Tribunal has paid only meagre amounts under the heads pain and suffering and loss of amenities. Ext.A6 wound certificate would reveal that the appellant had sustained the following injuries:- - “1. Multiple fracture on left hand. 2. Linear abrasion 10 cm over the right thigh. 3. Laceration 6 cm below right knee joint. 4. Haematoma of both upper eye lid and ENT bleed.” Ext.A7 discharge summary would reveal that the appellant has got left occipital bone fracture with underlying extradural haematoma pneumocephalus. He has got fracture to right zygoma and nasal bone. C.T.Scan of head was taken and it showed fracture of left occipital bone with underlying EDH, pneumocephalus. X-ray of right forearm showed Gallazi dislocation right upper limb and comminuted fracture base of proximal phalanges of right index and middle fingers. He has also got nasal bone fracture. Open reduction and internal fixation with 8 hole plate for compound fracture of right forearm was done under GA on 26.12.2002 and ORIF for leefort III fracture right side and leefort II fracture left side was done under GA on 7.1.2003. Reduction of nasal bone fracture was done on 7.1.2003. ENT consultation and M.A.C.A.No.1339/2008 7 ophthalmology consultation was done and he was discharged on 11.1.2003. In the light of Exts.A6 and A7 and also taking into account the fact that the injury sustained by the appellant resulted in permanent disability we are of the view that there is substance in the contention of the learned counsel for the appellant that the compensation granted by the Tribunal under the aforesaid heads is on the lower side. The nature of the injuries would definitely indicate that the appellant must have suffered excruciating pain owing to the said injuries sustained in the accident. Taking note of the aforesaid aspects, we are inclined to grant ₹10,000/- each additionally under the heads `pain and suffering' and `loss of amenities'. Towards `attendant's charges' the Tribunal granted ₹2,000/-. The accident occurred in December, 2002. The appellant had been an inpatient for a period of 16 days. We are of the view that in such circumstances, the attendant's charges ought to have been granted at the rate of 150/- per day. In that view of the matter, the₹ appellant would be entitled to get 400/- additionally under that head.₹ In the said circumstances, the total additional compensation payable would be 50,400/-. ₹ 5. As noticed hereinbefore, based on the fixation of the liability and the positive finding of the Tribunal which was sustained by us, the appellant is entitled only to get 50% of the additional compensation awarded viz., 25,200/-. The said amount will carry₹ M.A.C.A.No.1339/2008 8 interest at the rate of 8% per annum from the date of petition till realisation. However, in the light of the order passed by this Court on 14.7.2015 the appellant would not be entitled to get interest for a period of one week. The additional compensation payable based on this judgment would be paid to the appellant within a period of one month from the date of receipt of a copy of this judgment. There will be no order as to costs. The appeal is disposed of accordingly. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS // true copy // P.S. To Judge