Ambily Dasan v. Vinod S.V., Riyas and United India Insurance Co. Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 8[TH] DAY OF DECEMBER 2021 / 17TH AGRAHAYANA, 1943 ``` ``` MACA NO. 685 OF 2011 ``` ``` AGAINST THE AWARD DATED 27.05.2009 IN OP(MV)NO.111/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## `APPELLANT/PETITIONER:` ``` AMBILY DASAN, RAKKANKULAM HOUSE, ANJKUMOORTHY.P.O., MANGALAM, PALAKKAD-678 682. ``` ``` BY ADV SRI.SHEJI P.ABRAHAM ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1VINOD.S.V, ANAKKAPARA, ANJKUMOORTHY.P.O., MANGALAM, PALAKKAD-678 682. ``` ``` 2RIYAS, S/O.HAMSA, PANIKKAVEETTIL HOUSE, THOTTAKKARA, OTTAPALAM, PALAKKAD DISTRICT. PIN-678 682. ``` ``` 3UNITED INDIA INSURANCE CO.LTD., I G TOWERS, IIND FLOOR, NEAR BUS STAND, NENMARA, PALAKKAD DISTRICT. PIN-678 683. POLICY NO.101204/31/05/02810 VALID FROM 13.9.2005 TO 12.9.2006. ``` ``` BY ADVS.SRI.BABY MATHEW SMT.S.JAYASREE SRI.P.JAYARAM ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.685/2011 -:2:- Dated this the 8[th] day of December, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.111/2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 18.12.2005. It was his case that, on the above day, while he was walking along the Anjumoorthy road, a motorcycle bearing registration No.KL-8-P-8259(motorcycle), driven by the first respondent in a rash and negligent manner, hit the appellant. The appellant sustained serious injuries M.A.C.A.No.685/2011 -:3:- and was treated as an inpatient at Crescent Hospital, Alathur, from 18.12.2005 to 31.12.2005 i.e., for a period of 14 days. The appellant was a counter staff in a Bar Hotel and was earning a monthly income of Rs.4,500/-. The motorcycle was owned by the second respondent and insured with the third respondent. The appellant claimed a compensation of Rs.2,23,500/from the respondents, but the claim was limited to Rs.1,50,000/-. 3. The respondents 1 and 2 though entered appearance through counsel, did not file any written statement. 4. The third respondent had filed a written statement, refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the appellant. However, the third respondent admitted that the motorcycle had a valid insurance coverage. Hence, the third respondent M.A.C.A.No.685/2011 -:4:- prayed that the claim petition be dismissed. 5. The appellant had examined himself as PW1 and marked Exts.A1 to A6 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.78,250/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.1,000/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. Sheji P. Abraham, the learned counsel appearing for the appellant/petitioner and Smt. S. Jayasree, the learned counsel appearing for the third respondent -insurer. M.A.C.A.No.685/2011 -:5:- 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Exts.A1 First Information Report (FIR) and A3 A.M.V.I. Report prove that the accident occurred due to negligence of the first respondent. The respondents have not let in any evidence to controvert the pleadings in the claim petition or the oral testimony of the appellant. Similarly, the third respondent has not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income of the appellant:** 11. The appellant had claimed that he was a M.A.C.A.No.685/2011 -:6:- counter staff in a Bar Hotel and earning a monthly income of Rs.4,500/-. The Tribunal, for want of materials, fixed the notional income of the appellant at Rs.2,500/- per month. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2005, I fix the notional monthly income of the appellant at Rs.4,500/-, as claimed in the claim petition. ## **Loss of earnings:** 14. The Tribunal has found that the appellant was indisposed for a period of four months. I confirm the said finding. M.A.C.A.No.685/2011 -:7:- 15. Taking into account the re-fixation of the notional monthly income of the appellant at Rs.4,500/-, I award the appellant an amount of Rs.18,000/towards 'loss of earnings', instead of Rs.10,000/awarded by the Tribunal. ## **Disability:** 16. The appellant had produced Ext.A5 disability certificate issued by the Assistant Professor of Department of Orthopedic, Medical College Hospital, Thrissur, who had certified that the appellant has a malunion of the tibia and fibula and stiffness of his left ankle. Therefore, the appellant has a ‘permanent disability’ of 8%. Nevertheless, the Tribunal for the reason that the appellant had not examined the doctor, who issued Ext.A5 disability certificate, scaled down the ‘permanent disability’ of the appellant to 3%. 17. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has M.A.C.A.No.685/2011 -:8:- categorically held that, if the Tribunal is dissatisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. Similarly, what needs to be looked into in a case of injury, is the ‘functional disability’ of the injured/claimant. 18. In the instant case, the appellant had examined himself as PW1 and Ext.A5 disability certificate was marked in evidence without any demur or protest from the respondents. If the Tribunal was dissatisfied with the assessment made in the said certificate, the Tribunal ought to have referred the appellant to a Medical Board. After marking the said document in evidence, it was improper and unsustainable in law for the Tribunal to scale down the disability assessed by the doctor in Ext.A5. 19. In such circumstances, considering the fact M.A.C.A.No.685/2011 -:9:- that the appellant was a counter staff in a Bar Hotel and he has suffered a malunion of his tibia and fibula and stiffness of his left ankle, I fix his ‘functional disability’ at 8%. ## **Multiplier:** 20. The appellant was aged 24 years at the time of accident. In the light of the law laid down in **Sarla Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier to be adopted is ‘18’. ## **Loss due to disability:** 21. Taking into account the above mentioned factors, namely; the notional monthly income of the appellant at Rs.4,500/-, his ‘functional disability’ at 8% and the ‘multiplier’ at ‘18’, I hold that the appellant is entitled for compensation for ‘loss due to disability’ at Rs.77,760/-, instead of Rs.15,300/- awarded by the Tribunal. M.A.C.A.No.685/2011 -:10:- ## **Loss of amenities** 22. The appellant had claimed an amount of Rs.20,000/- for 'loss of amenities'. However, the Tribunal awarded only an amount of Rs.6,000/-. 23. Taking into account the fact that the appellant was treated as an inpatient for a period of 14 days, that he was indisposed for a period of four months, and that he had suffered a ‘functional disability’ of 8%, I hold that the appellant is entitled for a further amount of Rs.6,000/- under the said head ‘loss of amenities’ i.e., a total amount of Rs.10,000/-. ## **Bystander expenses:** 24. The appellant was treated as an inpatient for a period of 14 days. The Tribunal has awarded only an amount of Rs.2,100/- under the said head, which is too meager. 25. Considering the fact that the appellant was treated as an inpatient for a period of 14 days and the M.A.C.A.No.685/2011 -:11:- accident occurred in the year 2005, I award him an amount of Rs.250/- per day for a period of 14 days, which works out to Rs.3,500/-. 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|10,000|18,000| |2|Transportation<br>expenses|2,500|2,500| |3|Damage to<br>clothing||| |4|Extra nourishment||| M.A.C.A.No.685/2011 -:12:- |5|Bystander<br>expenses|2,100|3,500| |---|---|---|---| |6|Medical expenses|30,350|30,350| |7|Pain and sufferings|12,000|12,000| |8|Loss of amenities|6,000|10,000| |9|Loss due to<br>disability|15,300|77,760| ||**TOTAL**|**78,250**|**1,54,110**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.75,860/-** with interest on the enhanced compensation at the rate of 8% per annum from the date of petition till the date of deposit, after deducting interest for a period of 628 days i.e., the period of delay in preferring this appeal and as ordered by this Court on 27.09.2021 in C.M.Appln.No.1/2011, and a cost of Rs.8,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being M.A.C.A.No.685/2011 -:13:- deposited, the Tribunal shall disburse the deposited amount to the appellant, after deducting his liability, if any, towards court fee, and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/08.12.2021 //True copy/ P.A.To Judge