A.K. Kurian Anackal v. Vinoy; The Manager, Saraswathy Vidyamandir, Karikode P.O., Vaikom; The United India Assurance Co. 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 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938** ## **MACA.No. 916 of 2013 ()** ## **------------------------** ## **AGAINST THE AWARD IN OP(MV) 1125/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOTTAYAM DATED 17-01-2013** ## **APPELLANT/PETITIONER:** **---------------------------------** ## **A.K.KURIAN ANACKAL HOUSE, IRUMBAYAM KARA, VELLOOR VILLAGE.** ## **BY ADVS.SRI.K.A.HASHIM SRI.M.I.ISMAIL** ## **RESPONDENTS/RESPONDENTS:** **--------------** ## **1. VINOY** - **EZHUPULLIL, KUNNAPPALLY, MULAKULAM, PIN-686664.** ## **2. THE MANAGER** ## **SARASWATHY VIDHYAMANDIR, KARIKODE P.O., VAIKOM, PIN-686141.** ## **3. THE UNITED INDIA ASSURANCE CO. LTD. BRANCH OFFICE, KOTTAYAM, PIN-686 001.** ## **R3 BY ADV. SMT.DEEPA GEORGE R BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-05-2016, ALONG WITH MACA. 919/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.916 & 919 of 2013 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31[st] day of May, 2016** ## **J U D G M E N T** ## **C.T. Ravikumar, J.** These appeals arise from a common award dated 17.1.2013 in O.P.(M.V.)Nos.1125/2011 and 1123/2011 of the Motor Accidents Claims Tribunal, Kottayam. Both these cases arise from the same accident. The appellant in the latter appeal was riding a motorcycle bearing registration No.KL 05/P 8182 through Thavalakulam - Mercy road and the appellant in the former appeal was the pillion rider on it. When they reached on the northern side of Kalyathumkunnu Church the offending vehicle viz. a van bearing registration No.KL 05/U 506 driven by the first respondent, in a rash and negligent manner, hit on the motorcycle. Consequently they sustained injuries. The above mentioned claim petitions were filed by the appellants seeking compensation for the injuries, in the above circumstances raising the above and such other averments. As noticed hereinbefore both the appellants 2 M.A.C.A.Nos.916 & 919 of 2013 sustained injuries in the same accident and the appeals arise from the common award. In the said circumstances, we heard the appeals jointly and they are being disposed of by this common judgment. 2. We have heard the learned counsel for the appellants and also the learned counsel appearing for the third respondent, the insurer of the offending vehicle. 3. From the rival contentions advanced before us it is evident that the accident, the insurance coverage of the offending vehicle as also the cause of the accident as the negligence from the driver of the offending vehicle viz. the first respondent are not in dispute. In such circumstances the only question to be considered in these appeals is whether or not the appellants are entitled to get enhancement of the quantum of compensation. 4. **M.A.C.A.No.916/2013** : This appeal arises from the award in O.P.(M.V.)No. 1125/2011 passed by the Motor Accidents Claims Tribunal, Kottayam. The appellant was the pillion rider on the M.A.C.A.Nos.916 & 919 of 2013 3 motorcycle driven by the appellant in the other appeal. In the accident that occurred on 10.12.2010 at 5.15 p.m. the appellant sustained injuries. Immediately he was taken to Mercy Hospital, Pothy and he underwent further treatment from Holy Ghost Mission Hospital, Muttuchira. Ext.A3 is the treatment certificate issued from Holy Ghost Hospital, Muttuchira wherein the petitioner was treated as inpatient from 10.12.2010 to 15.12.2010. In the accident the appellant sustained comminuted fracture distal end of radius right. The appellant was aged 60 years at the time of the accident. In the claim petition it was stated that he was eking his livelihood by engaging himself in coolie activities. The Tribunal on evaluating the evidence on record and considering the rival contentions, as per the impugned award, granted a total compensation of Rs.74,280/- with interest at the rate of 7.5% per annum from the date of petition (10.10.2011) till realization. Essentially this appeal is filed on being dissatisfied with the quantum of compensation granted thereunder. The main contention of M.A.C.A.Nos.916 & 919 of 2013 4 the petitioner is that despite the specific averments in the claim petition that the appellant was a coolie and was earning Rs.7,500/- per month the Tribunal disregarded such averments and fixed his monthly income notionally at Rs.4,000/-. The learned counsel contended that the fixation of the monthly income by the Tribunal in the said circumstances is too meagre. The Tribunal took note of the fact that in the disability certificate the whole body disability was certified as 9%. However the Tribunal declined to accept the entire percentage of disability certified thereunder for the reason that the doctor who issued the said certificate was not examined. At the same time the Tribunal took 5% as functional disability taking note of the fact that the appellant was a coolie by profession. According to the learned counsel for the appellant the Tribunal went wrong in not accepting the entire percentage of disability certified under the disability certificate. It is the further contention that the amounts granted by the Tribunal under the heads damage to M.A.C.A.Nos.916 & 919 of 2013 5 clothing, loss of earning, pain and sufferings, loss of amenities and permanent disability are all on the lower side and therefore they require appellate interference for the purpose of enhancement. 5. We will firstly consider whether the fixation of monthly income of the appellant as Rs.4,000/- by the Tribunal for the purpose of computing the compensation warrants appellate interference. It is obvious from the impugned award that the Tribunal virtually accepted the fact that appellant was a coolie. But at the same time the Tribunal fixed the monthly income only at Rs.4,000/-. While considering the question whether it requires an appellate interference the factual position that the appellant was aged 60 years and the accident in question occurred in the year 2010 precisely on 10.12.2010 and also the fact that in the case of a coolie who met with an accident in the year 2004 the Hon'ble Apex Court fixed the monthly income at Rs.4,500/- for the purpose of assessing the compensation as per the decision of the Hon'ble Apex Court in M.A.C.A.Nos.916 & 919 of 2013 6 **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** have to be taken into consideration. Those aspects and the fact that the accident occurred about six years since the accident involved in Ramachandrappa's case constrain us to think that it will be only just to fix the monthly income of the appellant, for calculation purpose, as Rs.5,000/-. Accordingly it is fixed. Obviously for the purpose of computing the compensation for loss of earning, the Tribunal took a period of three months. In view of the modification of the monthly income as above under the said head the appellant is entitled to get an amount of Rs.3,000/more. Towards damages to clothing, the Tribunal granted an amount of Rs.500/- as against the claim of Rs.2,000/-. The nature of the injuries would undoubtedly suggest that the dresses worn by the appellant must have been damaged in the accident. In such circumstances, we are inclined to grant an amount of Rs.500/- more under that head. Despite the persuasive arguments of the learned counsel for the M.A.C.A.Nos.916 & 919 of 2013 7 appellant we do not find any reason to uphold the contention that the compensation granted for the permanent disability incurred, for pain and suffering and loss of amenities are all on the lower side and they require an appellate modification. Evidently, the Tribunal took the only 5% functional disability despite the certification of 9% whole body disability under Ext.A8 taking into account the fact that the doctor issued Ext.A8 was not examined before the Tribunal. When the disability certificate is not one issued by a duly constituted Medical Board and the doctor who issued the same was not examined the Tribunal cannot be said to have committed an error in not accepting the entire percentage of disability certified under Ext.A8. Hence, it calls for no interference. But at the same time in the light of the fixation of the monthly income notionally by us the amount of compensation granted for permanent disability requires a re-assessment with the modified monthly income. Following the same formula by applying the modified monthly income the appellant would be M.A.C.A.Nos.916 & 919 of 2013 8 entitled to get an amount of Rs.5,400/- additionally. In the light of the discussion as above the appeal is allowed and over and above the compensation granted by the Tribunal under the impugned award the appellant is entitled to get an amount of Rs.8,900/-. It is rounded off to Rs.9,000/(Rupees nine thousand only). The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realization. The third respondent shall deposit the said amount within a period of one month from the date of receipt of a copy of this judgment. In case of failure on the part of the third respondent to deposit the said amount within the stipulated time, the amount remaining to be paid will carry interest @ 9% per annum from the date of petition. There will be no order as to costs. 6. **M.A.C.A.No.919/2013** : 7. This appeal is directed against the judgment and award in O.P.(M.V.)No.1123/2011. 8. The appellant herein was the rider of the motorcycle bearing registration No.KL 05/P 8182 that M.A.C.A.Nos.916 & 919 of 2013 9 involved in a motor vehicle accident on 10.12.2010 at 5.15 p.m. 9. We have already found that though he was riding the said vehicle the accident occurred due to the rash and negligent driving of the driver of the offending vehicle which is a van bearing registration No.KL 05/U 506. Immediately after the accident the appellant was taken to Mercy Hospital, Pothy and thereafter for further treatment he was taken to Holy Ghost Mission Hospital, Muttuchira wherein he remained as inpatient for five days. In the accident the appellant sustained displaced fracture medial tibial condyle and injury to left knee and certain lacerated wounds. The appellant claimed that in the accident he incurred 13% of permanent disability. As per the impugned award which was passed after considering the evidence on record and appreciating the rival contentions the Tribunal granted a total compensation of Rs.70,265/- with interest at the rate of 7.5% from the date of petition till realization. The contention of the appellant is that the Tribunal erroneously M.A.C.A.Nos.916 & 919 of 2013 10 fixed the monthly income of the appellant as Rs.3,000/- for calculation purpose and also has erred in not taking the percentage of disability as 13% certified under the disability certificate. Evidently the appellant was aged 20 years at the time of the accident and going by the averments in the claim petition he was working on part time basis as an Accountant in a private firm. Obviously despite taking up such contentions the appellant has not chosen to adduce any evidence in support of such contentions regarding his occupation and income. Taking note of the fact that he was aged only 20 years the Tribunal thought it fit to fix the monthly income notionally at Rs.3,000/- for calculation purpose. As regards the claim of the petitioner that he had incurred permanent disability owing to the injury sustained the Tribunal found that the appellant had failed to establish the disability by examining the doctor who issued such certificate. That apart it is found that the appellant had not appeared before the Tribunal to enable the appellant to see and assess the disability if any. It is in the said M.A.C.A.Nos.916 & 919 of 2013 11 circumstances that the Tribunal declined to accept the contention of the appellant that he had incurred disability owing to the injuries sustained in the accident. Taking note of the reasons assigned by the Tribunal we do not find any illegality or irregularity warranting an interference with such finding. The certificate produced is not one issued by a duly constituted Medical Board and the doctor who issued the same was also not examined before the Tribunal. The nature of the injury also would not support the assessment of disability under the said certificate. For all these reasons the disinclination by the Tribunal to accept the contention of permanent disability cannot be said to be perverse warranting an interference. The learned counsel for the appellant contended that the Tribunal erroneously estimated the compensation under the heads damage to clothing, loss of earning, pain and sufferings and loss of amenities. As noticed hereinbefore the appellant had not tendered any evidence in support of his contention regarding the occupation and income. At the time of the M.A.C.A.Nos.916 & 919 of 2013 12 accident he was aged 20 years. His contention was that he was working on part-time basis as an Accountant in a private firm and was earning Rs.7,500/-. Though there is absolute absence of any evidence regarding the occupation and income taking note of the age of the appellant and the year of the accident, we are inclined to take Rs.4,000/notionally as the monthly income of the appellant for calculation purpose. Retaining the same period reckoned by the Tribunal for the purpose of granting compensation towards loss of earning and taking the monthly income as Rs.4,000/- the appellant will be entitled to get an amount of Rs.3,000/- additionally under the said head. It is awarded. Towards damage to clothing as against a claim of Rs.2,000/the Tribunal granted an amount of Rs.500/-. We are inclined to grant an amount Rs.500/- more under that head as obviously the nature of the injuries sustained by him would indicate that the dresses worn by him at the time of accident must have been damaged. Towards pain and sufferings, an amount of Rs.40,000/- was claimed by the M.A.C.A.Nos.916 & 919 of 2013 13 appellant and the Tribunal granted an amount of Rs.22,000/-. Taking note of the injuries that the appellant had sustained and taking into account the period of hospitalization, we are of the view that Rs.3,000/- can be granted additionally under that head. Hence the same is awarded. Towards loss of amenities as against a claim of Rs.30,000/- the Tribunal granted an amount of Rs.15,000/-. We have already taken note of the nature of the injuries. Evidently the Tribunal also opined that injuries must entail him loss of amenities. Taking into account all such circumstances, we are of the view that it is only proper to grant an amount of Rs.5,000/- more under that head. In the light of the said discussions this appeal is allowed and the appellant is entitled to get a total enhanced compensation of Rs.11,500/- (Rupees eleven thousand five hundred only). It is awarded. The enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realization. The third respondent shall deposit the said amount within a period of one month from the date of M.A.C.A.Nos.916 & 919 of 2013 14 receipt of a copy of this judgment. In case of failure on the part of the third respondent to deposit the said amount within the stipulated time, the amount remaining to be paid will carry interest @ 9% per annum from the date of petition. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/