Aji Kumar s/o Gangadhar v. Kabeer, K.R. Damodaran Nair and Bajaj Alliance General Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 4TH DAY OF OCTOBER 2016/12TH ASWINA, 1938** **MACA.No. 276 of 2014 () ------------------------** **AGAINST THE AWARD IN OPMV 208/2006 of MACT,PATHANAMTHITTA DATED 01-08-2013** ## **APPELLANT/PETITIONER:** **-----------------------** **AJI KUMAR S/O. GANGADHARAN, POOVANNUNILKUNNATHIL HOUSE, IRAVON.P.O., KONNI.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS** **--------------** ## **1. KABEER** **S/O. SAINUDHIN, MARUTHIMOOTTIL HOUSE, ELLARACKAL DESOM, KONNI** **2. K.R. DAMODARAN NAIR,** **MANI BHAVAN, MANGARAM, KONNI.** **3. BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD. PAZHAVANGADI, THIRUVANANTHAPURAM-695001.** **R3 BY ADV. SRI.THOMAS M.JACOB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.276 OF 2014** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of October, 2016 ## **JUDGMENT** ## Ravikumar, J. This appeal is directed against the judgment and award dated 1.8.2013 in O.P.(MV)No. 208/2006 passed by the Motor Accidents Claims Tribunal, Pathanamthitta. The injured claimant is the appellant herein. It is seeking compensation for the injuries sustained in a motor vehicle accident occurred on 29.11.2005 that he filed the said claim petition. On that day, he was travelling in a tempo van. Virtually he was accompanying the goods. It capsized and consequently he sustained injuries. Immediately he was taken to Muthoot Medical Centre, Pathanamthitta and from there he was taken to Medical College Hospital, Kottayam from where he was shifted to Amrita Institute of Medical Science at Ernakulam. He remained there as an inpatient for a period of 34 days. The injuries sustained by him resulted in permanent disability. The appellant filed the claim petition seeking for a MACA No.276/2014 2 compensation of Rs.5 lakhs and to establish the claim, the appellant got himself examined as PW1 besides getting marked Exts.A1 to A11. On the side of the respondents, no evidence either oral or documentary was produced. As per the impugned award, the Tribunal granted a total compensation of Rs.4,37,433/- with interest @ 7.5% per annum from the date of petition till realization. It is seeking enhancement of the quantum of compensation that this appeal has been preferred. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent Sri.Thomas M.Jacob. 3. Since the liability to indemnify the owner of the aforesaid offending vehicle is not in dispute, we are of the view there is absolutely no necessity to issue notice to respondents 1 and 2. Since the only question to be decided in this appeal is regarding the entitlement of enhanced compensation of the appellant, we are of the view that this appeal can be disposed of at the admission stage itself. 4. Evidently, the main grievance of the appellant is regarding the fixation of the monthly income. The submission is that the MACA No.276/2014 3 erroneous fixation of the monthly income by the Tribunal ignoring the relevant facts available based on the evidence on record resulted in and fixation of compensation under the head permanent disability as also loss of earnings so meagrely and thereby the appellant was deprived of just compensation. It is the further contention of the learned counsel for the appellant that the Tribunal granted only meagre amounts under the head pain and suffering as also loss of amenities and enjoyment in life. 5. Per contra, the learned counsel for the Insurance Company submitted that a perusal of the schedule of compensation given in the impugned judgment would reveal that adequate compensation was granted by the Tribunal under all heads. It is further submitted that taking note of the fact that the accident occurred in the year 2005, fixation of the monthly income of the appellant at Rs.3,000/- for calculation purpose cannot be said to be meagre warranting appellate interference. In short, the contention is that no appellate interference is called for in this case. 6. As noticed hereinbefore, the main grievance of the MACA No.276/2014 4 appellant is regarding the fixation of the monthly income. The accident occurred on 29.11.2005 and on the day of the accident, the appellant was aged 29 years. The evidence on record itself would reveal that he is not only the owner of the offending vehicle, but also its driver. In such circumstances, we are of the view that while considering the correctness or otherwise of the fixation of the monthly income, the decision of the Hon'ble Apex Court in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. [( 2011) 13 SCC 236]** should act as a guidance. That was a case in which the Hon'ble Apex Court fixed the monthly income of a coolie who met with an accident in the year 2004 as Rs.4,500/- for calculation purpose. Under such circumstances, taking into account all the relevant aspects, we are of the view that the monthly income fixed by the Tribunal requires an interference and we think it proper to fix the monthly income for calculation purpose as Rs.6,000/-. Accordingly, it is fixed. Based on the fixation of the monthly income as Rs.6,000/-, the appellant is entitled to get an enhanced compensation under the head loss of earnings and compensation for permanent disability. MACA No.276/2014 5 7. While considering the question of compensation under the head of loss of earnings, it is to be noted that the Tribunal took the period of loss of earnings only as three months. In this context, it is relevant to refer to the injuries sustained by the appellant in the accident which is revealed from Exts.A4 and A6. Ext.A4 is the wound certificate and Ext.A6 is the discharge card. On diagnosis,it was found that he sustained closed fracture shaft of left femur with foot drop. Grade I open fracture left hemerus with radial nerve palsy. Reduced greater tuberosity fracture dislocation of right shoulder. Ext.A6 discharge summary would also reveal the procedures done. It would reveal that open reduction and internal fixation with interlocking nailing left femur. Debridement and over drilling infected upper tribial pin tract. Open reduction and internation fixation with interlocking nail (AO – sun nail) with one distal lociding and 2 proximal locking for the femur and open reduction and internal fixation of the left humerus with plate and bone grafting. 8. Taking into account the nature of the injuries and the treatment underwent by the appellant, we are of the view that the MACA No.276/2014 6 period of loss of earnings taken by the Tribunal is too short and we are inclined to take the period of loss of earnings as six months. Based on the fixation of monthly income and the period of loss of earnings, the appellant would be entitled to get Rs.36,000/-. The Tribunal has already granted an amount of Rs.9,000/- and after deducting the said amount, the appellant would be entitled to get an amount of Rs.27,000/additionally under that head. 9. Ext.A10 is the disability certificate issued by the District Medical Board, Pathanamthitta. Going by the same, the appellant sustained 28% permanent disability. Evidently, the entire percentage of disability taken by the Medical Board was taken by the Tribunal for calculation purpose. So also there is no grievance with regard to the fixation of multiplier as it was taken correctly by the Tribunal with reference to the age of the injured. In such circumstances, the compensation for permanent disability has to be reassessed taking note of the refixed monthly income . Based on such re-assessement, the appellant would be entitled to get an amount of Rs.1,71,360/- ( 6000 x 12 x 28 x 17% - 1,71,380/- additionally. It is granted. The nature of MACA No.276/2014 7 the injuries and the treatment underwent by the appellant referred to hereinbefore, constrained us to hold that the appellant is entitled to get enhancement of compensation under the head pain and suffering and loss of amenities and enjoyment of life. We are inclined to grant Rs.10,000/- each additionally under the said heads. Towards damage to clothing, we are inclined to grant Rs.500/- more. In the light of the discussion as above, the appellant is entitled to get an additional compensation of Rs.2,18,860/-. It is granted. The said additional compensation will carry interest @ 8% per annum from the date of petition till realization. The third respondent is directed to deposit the additional compensation along with interest thereon within a period of three months from the date of receipt of a copy of this judgment. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 05/10/2016