Ambareesh v. Sudheer T.M., Adarsh S/o Ayyappan, and Cholamandalam M.S.G.I. Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 ``` ``` MACA NO. 2428 OF 2013 ``` ``` AGAINST THE AWARD DATED 22.02.2013 IN OP(MV) 1439/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER:`** ``` AMBAREESH ``` ``` S/O. AYYAPPAN, PALLIKUNNATHPARAMBIL HOUSE, MALAYAKUNNU DESOM, SOUTH ADUVASSERY.P.O., NORTH PARUAVUR, ERNAKULAM DISTRICT. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SUDHEER T.M. S/O. MATHAPPAN, H.NO. 4/374-A, THAINAN HOUSE, SOUTH ADUVASSERY.P.O., NORTH PARAVUR-680513. ``` - `2 ADARSH S/O. AYYAPPAN, PALLIKUNNATHPARAMBIL HOUSE,` ``` SOUTH ADUVASSRY.P.O., NORTH PARAVUR-680513. ``` ``` 3CHOLAMANDALAM M.S.G. I. COMPANY LTD. COCHIN REGIONAL OFFICE, PALARIVATTOM.P.O., ERNAKULAM-682025. ``` ``` BY ADVS. SRI.MATHEWS JACOB SR. R3 -SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.2428 of 2013 : 2 : ## JUDGMENT The appellant is the petitioner in OP(MV) No.1439/2008 on the files of the Motor Accident Claims Tribunal, Irinjalakuda. 2. The claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.04.2008. The accident occurred when the goods vehicle bearing registration No. KL-07-X-8035, in which the appellant was travelling as a cleaner, collided with another goods vehicle bearing registration No.KL-07-AS-3409, thereby, he sustained injuries. The 1[st] respondent was the owner, the 2[nd] respondent was the driver, and the 3[rd] respondent was the insurer of the vehicle. According to the appellant, he was working as a cleaner of the lorry with a monthly income of Rs.6,000/. It was also contended that the injuries sustained by him resulted in permanent disablement, and the claim petition was submitted in such circumstances. 3. The 3[rd] respondent/insurance company alone contested the matter by filing a written statement admitting the policy coverage but disputed the liability on various grounds. They also M.A.C.A. Nos.2428 of 2013 : 3 : disputed the negligence and the quantum of compensation. The case was tried along with OP(MV) No.990/2008. 4. The evidence in the said claim petitions consisted of the oral testimonies of PWs1 to 3 and Exts.A1 to A14 from the side of the claimants. From the side of the 3[rd] respondent, Exts.B1 to B4 were marked. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent. Therefore, being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,04,800/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 7.5%. This appeal is submitted by the appellant seeking enhancement of compensation in such circumstances. 6. Heard Sri. P.V. Baby, the learned counsel appearing for the appellant and Sri. P. Jacob Mathew, the learned counsel appearing for the 3[rd] respondent insurance company. 7. The main contest in this case relates to the quantum of compensation. According to the learned counsel for the appellant, the tribunal committed a grave error while taking the monthly M.A.C.A. Nos.2428 of 2013 : 4 : income of the appellant and also assessing the physical disability suffered by him. It was pointed out that even though an amount of Rs.6,000/- was claimed as the monthly income, the tribunal has taken only 3,000/-. On the other hand, the learned counsel appearing for the insurance company opposes the contention by pointing out that the award passed by the tribunal is reasonable in all aspects. Therefore, no interference is awarded. 8. I have carefully gone through the records and find that there is some force in the contentions put forward by the appellant. As regards the monthly income, it is to be noted that the tribunal has taken only Rs.3,000/- which appears to be grossly inadequate. The accident occurred in the year 2008 and as per the method of computation of monthly income, evolved from the principles laid down which by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735] under no circumstances the monthly income of Rs.6,000/- claimed by the appellant can be treated as an unreasonable amount in respect of the accident occurred in the year 2008. Therefore, I deem it appropriate to M.A.C.A. Nos.2428 of 2013 : 5 : accept the said claim as such, as far as the monthly income is concerned. 9. The next aspect the learned counsel for the appellant pointed out is the percentage of disability. The appellant was 20 years old and was working as a vehicle cleaner. He suffered the following injuries: (1) Comminuted fracture right femur OR & IF done, Lacerated wound 4[th] right toe. (2) Lacerated wound left 3[rd] & 4[th] fingers. He availed treatment as an inpatient for a period of 14 days. 10. The Doctor has issued a certificate as Ext.A6, and he was examined as PW1 as well. As per the certificate, the disability of the appellant was certified as 18.73 concerning that limb. However, whole body disability was certified as 9.37%. The learned counsel for the appellant would contend that considering the nature of the injuries, the Tribunal ought to have taken the functional disability, which the learned counsel for the Insurance Company opposed. 11. After considering the material placed on record, I do not find any scope for taking functional disability in this case. Of course, in Syed Sadiq v. Divisional Manager, United India Insurance M.A.C.A. Nos.2428 of 2013 : 6 : Company [(2014) 2 SCC 735], the Honourable Supreme Court took the functional disability at a higher rate than certified in the disability certificate. However, in this case, when going through the nature of injuries sustained and the tender age of the appellant at the time of the accident, i.e., 20 years, I am of the view that the same resulting in complete termination of the employment of the appellant as a cleaner of the vehicle is highly unlikely. However, it will undoubtedly affect his performance, and therefore, compensation has to be granted. Under no circumstances can the same be less than what is certified by the Doctor as whole body disability of 9.37%. Therefore, I do not find any necessity to interfere in the award as far as the physical disability assessed by the Tribunal is concerned. 12. Thus, while reassessing the compensation with the revised monthly income, the amount would come to Rs.1,21,435/(6,000 x 12 x 18 x 9.37/100). The amount already awarded by the Tribunal under the said head is Rs.55,080/-. Thus, the balance amount would come to Rs.66,355/-. 13. Consequent to the revision of monthly income, the appellant would also be entitled to an additional amount under the M.A.C.A. Nos.2428 of 2013 : 7 : head of loss of earnings. The Tribunal has awarded compensation under the said head for a period of two months. However, considering the nature of the injuries sustained, the consequence thereof, and other relevant aspects, I am of the view that, the appellant must have been prevented from pursuing employment at least for a period of three months. Therefore, while reassessing the compensation with the monthly income as Rs.6,000/- for three months, the additional amount would come to Rs.12,000/- [(6,000 x 3)-6,000]. 14. Moving on to the other heads, it can be seen that the Tribunal has awarded only an amount of Rs.12,000/- under the head of pain and suffering. Considering the nature of the injuries, the age of the victim and other relevant circumstances, including the permanent disability sustained and the period of hospitalisation of 14 days, I am of the view that a further sum of Rs.13,000/- can be granted under the said head. 15. As regards the loss of amenities and convenience, even though an amount of Rs.25,000/- has been claimed, no amount was granted. Taking note of the nature of injuries and the physical disability arising therefrom, as well as other relevant aspects, I M.A.C.A. Nos.2428 of 2013 : 8 : deem it appropriate to grant a sum of Rs.20,000/- under the said head. 16. Thus, the total additional amount receivable by the appellant compensation would be Rs.1,11,355/- (Rupees one lakh eleven thousand three hundred and fifty-five only) (66,355 + 12,000 + 13,000 + 20,000). In the light of the aforesaid observations and findings, this appeal is allowed; the award dated 22.02.2013 passed by the Motor Accident Claims Tribunal, Irinjalakuda, in O.P.(M.V.)No.1439/2008 is hereby modified by granting an additional compensation of Rs.1,11,355/-(Rupees one lakh eleven thousand three hundred and fifty five only) and the appellant herein shall be entitled to recover the said compensation along with interest at the rate as ordered by the Tribunal and proportionate cost. The Insurance Company shall deposit the said amount within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd/scs