Ajaya Kumar v. Reetha Unnikrishnan, Muralidharan and The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939** **MACA.No. 529 of 2012 () ------------------------** **OPMV 2211/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR.** **......** ## **APPELLANT/PETITIONER:** **---------------------** **AJAYA KUMAR, S/O.SIVARAMAN, RESIDING AT THEKKIL HOUSE, THRIKKUMARAKUDAM, THRISSUR-680003.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **------------------------** **1. REETHA UNNIKRISHNAN W/O.UNNIKRISHNA, RESIDING AT 36/1065, 'KRISHNA PRIYA', POOTHOLE, THRISSUR-680004.** **2. MURALIDHARAN, S/O.NARAYANAN, RESIDING AT MANIKYATHAKULAM HOUSE, NALLEPILLY P.O., PALAKKAD-678553.** **3. THE NATIONAL INSURANCE COMPANY LIMITED, KOLLANNUR DEVASSY SMARAKA BUILDING, ROUND EAST, THRISSUR-680001.** - **R3 BY ADV.SMT.SARAH SALVY BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.529 of 2012** **-------------------------------------------------DATED THIS THE 30[th] DAY OF JUNE, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** This appeal arises out of the award passed by the Motor Accident Claims Tribunal, Thrissur dated 26.11.2011 in O.P.(MV) No.2211/2005, an application filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 11.7.2005 while he was riding a motor cycle bearing registration No.KL-8/TC-30/99. When the appellant/ claimant reached the place of accident, the motor cycle was hit by a car bearing registration No.KL-10/Q-5944 owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. The appellant/claimant sustained injuries and claiming a total compensation of 2,00,000/- under different heads, claim petition₹ was filed before the Tribunal. M.A.C.A.No.529/2012 -2- 2. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant and a copy of the insurance policy was marked as Ext.B1 on the side of the respondents. 3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver. Since the said vehicle was covered with a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent owner. Under different heads, the Tribunal awarded a total compensation of 78,400/- and directed the 3₹ rd respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of petition till realisation with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under M.A.C.A.No.529/2012 -3- different heads. 6. The accident is of the year 2005 and at the time of accident, the appellant/claimant was aged 37 years. He claimed a monthly income of 5,000/- as a gold worker. However, no₹ reliable materials were placed before the Tribunal in order to support the said claim. It was in the absence of any reliable materials that the Tribunal fixed the monthly income of the appellant/claimant notionally at 3,000/-.₹ 7. In **Ramachandrappa** v. **Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Apex Court fixed the monthly income of a coolie, who met with an accident in the year 2004, at ₹4,500/-. Though the appellant/claimant has not chosen to mount the box, considering the fact that the accident is of the year 2005 and at the time of accident, the appellant/ claimant was an able bodied person aged 37 years, we deem it appropriate to re-fix his monthly income notionally at 5,000/- for₹ the purpose of assessing compensation under different heads. 8. The compensation awarded by the Tribunal under M.A.C.A.No.529/2012 -4- ## different heads reads thus: |Sl.<br>No.|Head of claim|Claimed|Awarded| |---|---|---|---| |1|Loss of earning (total)|50000|18000| |2|Loss of earning (Partial)||| |3|Medical and miscellaneous expenses|15000|11900| |4|Future treatment|10000|| |5|Personal expenses, Bystander expenses|3000|3000| |6|Transportation expenses|2500|2000| |7|Extra nourishment|5000|3000| |8|Damages to clothing, Surveyors fee, etc.|1000|500| |9|Pain and suffering|20000|20000| |10|Disability etc.<br>Loss of amenities and inconvenience<br>Loss of earning power<br>Compensation for injury itself<br>Loss of future prospects<br>Discomfort<br>Loss of expectancy of life|100000<br>20000<br>80000|20000| ||Total|306500|78400| ||Limited to|200000|0| 9. The nature of injuries sustained in the accident as borne out from the wound certificates/discharge summaries are as ## follows: “Contusion on left thigh and left knee and condyle fracture junction of proximal mid 1/3[rd] of left femur. ” The treatment undergone by the appellant/claimant for the M.A.C.A.No.529/2012 -5- injuries sustained as borne out from the discharge summary are as follows: “Open reduction and internal fixation and bone grafting were done. Richard's plate and screw fixation were done.” 10. In Ext.A6 medical certificate issued by the Assistant Professor in Orthopaedics, Medical College Hospital, Thrissur, which was marked subject to proof, the percentage of disability is certified as 9%. But, the appellant/claimant has not taken any steps to prove the said certificate in accordance with law. At the time of hearing, the claimant was present before the Tribunal and no visible disability was found by the Tribunal. It was in these circumstances that the Tribunal discarded the percentage of disability certified in Ext.A6 and declined the compensation under the head 'disability'. 11. As we have already noticed, Ext.A6 disability certificate was marked subject to proof. Therefore, if the appellant/claimant wants to rely on the said document, he should have taken necessary steps either to summon the Doctor who had issued Ext.A6 disability certificate or should have made an application to refer him for medical examination by the Medical Board in the M.A.C.A.No.529/2012 -6- Medical College/District Hospital concerned to assess the percentage of permanent disability. Having failed to do so, the appellant/claimant cannot challenge the rejection of his claim for compensation under the head disability, especially when no reliable materials were placed before the Tribunal to prove the same. Therefore, the finding to that effect in the award passed by the Tribunal warrants no interference in this appeal. 12. Towards loss of earning, the Tribunal awarded a sum of ₹18,000/- at the rate of 3,000/- for a period of 6 months.₹ Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, we find that the period taken for loss of earning at 6 months is perfectly legal, which warrants no enhancement in this appeal. However, as we have already refixed the monthly income of the appellant/claimant notionally at ₹5,000/-, the compensation payable under the head loss of earning is reworked as ₹30,000/(5,000x6), resulting an additional compensation of **₹12,000/-** . 13. The documents on record would show that for the injuries sustained in the accident, the appellant/claimant had M.A.C.A.No.529/2012 -7- undergone inpatient treatment for a period of 24 days. Towards bystander expenses and extra nourishment, the Tribunal awarded a sum of 3,000/- each. Since the accident is of the year 2005,₹ the compensation payable under the head bystander expenses will have to be assessed at the rate of 150/- per day and that₹ payable under the head extra nourishment at the rate of 100/-₹ per day. Therefore, towards bystander expenses the compensation payable will have to be re-fixed as ₹3,600/-, resulting an additional compensation of 600/-. But the Tribunal has already₹ awarded a sum of 3,000/- towards extra nourishment, against₹ the entitlement of the appellant/claimant only for a sum of ₹2,400/(100x24). Therefore, based on the re-fixation of compensation under the head bystander expenses, the appellant/claimant is not entitled for payment of any additional amount in this appeal. 14. Towards damage to clothing, the Tribunal awarded only a sum of 500/-. Considering the fact that the accident is of the₹ year 2005, we deem it appropriate to re-fix the compensation under this head as 1,000/-, resulting an additional compensation₹ M.A.C.A.No.529/2012 -8- ## of **500/-₹** . 15. Towards pain and suffering, the Tribunal awarded a sum of 20,000/-. Considering the nature of injuries sustained and the₹ treatment, the appellant/claimant had undergone, including open reduction and internal fixation and bone grafting, we deem it appropriate to refix the compensation under this head as ₹25,000/- resulting an additional compensation of **₹5,000/-** . 16. Towards loss of amenities, the Tribunal awarded a sum of 20,000/-. Though the appellant/claimant has not proved the₹ permanent disability certified in Ext.A6 disability certificate, we find that considering the nature of injuries sustained and the disability that had arisen therefrom, the compensation awarded by the Tribunal under the head loss of amenities requires refixation at ₹25,000/-, resulting an additional compensation of ₹ **5,000/-** . 17. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation which requires no enhancement in this appeal. 18. In the result, the appellant/claimant will be entitled for an additional compensation of **₹22,500/- (Rupees Twenty Two** M.A.C.A.No.529/2012 -9- **Thousand Five Hundred only)** which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the offending vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal, within a period of one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn //True copy// P.S. to Judge