Anilkumar V.R. @ Vikraman v. Dhanyakumar, T.C.George and The Oriental Insurance 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** **WEDNESDAY, THE 27TH DAY OF JULY 2016/5TH SRAVANA, 1938** **MACA.No. 752 of 2010 ( )** **-------------------------** **AGAINST THE AWARD IN OPMV 1120/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOTTAYAM DATED 12.1.2010** ## **APPELLANT(S)/PETITIONER:** ## **-----------------------** **ANILKUMAR V.R. @ VIKRAMAN, S/O. RAGHAVAN VALIYAPUNNACKAL HOUSE, MALAMKUNNU BHAGOM, MUNDAKAYAM EAST P.O., KOKKAYAR VILLAGE, IDUKKI, NOW RESIDING AT SUBHASH BHAVAN, ITHITHANAM P.O., CHANGANACHERRY.** **BY ADVS.SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.N.ASWATHY SRI.THOMAS T.VARGHESE** ## **RESPONDENT(S):** **--------------** **1. DHANYAKUMAR, VALIYAPUNNACKAL HOUSE MALAMKUNNU BHAGOM, MUNDAKAYAM EAST P.O., KOKKAYAR VILLAGE, IDUKKI.** **2. T.C.GEORGE, THADATHIL PURAYIDAM, TITANIUM NAGAR P.O., KAVANADU, RAMANKULANGARA, KOLLAM.** ## **3. THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM.** ## **R3 BY ADV. SRI.P.V.JYOTHI PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.752 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of July, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** This appeal is preferred against the judgment and award in O.P.(M.V.)No.1120/2007 passed by the Motor Accidents Claims Tribunal, Kottayam. The injured petitioner is the appellant. He filed the claim petition under Section 166 of the M.V. Act seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 17.6.2005. On that day he was travelling in a motor vehicle bearing registration No.KRU/5591 as a pillion rider. When it reached near a Temple of Boyce Estate the motorcycle capsized and consequently he fell down and sustained injuries. He was immediately taken to the Taluk Headquarters Hospital, Kanjirappally from there he was referred to Medical College Hospital, Kottayam and he remained therein as an inpatient for a period of 19 days. It is in the said circumstances that claiming compensation for M.A.C.A.No.752 of 2010 2 the injuries he filed the aforementioned claim petition. Both sides did not adduce any oral evidence before the Tribunal. On the side of the appellant Exts.A1 to A12 were got marked and on the side of the respondents, the policy containing the terms and conditions was marked as Ext.B1. The Tribunal evaluated the evidence on record and passed the impugned award for a total compensation of Rs.44,551/with interest at the rate of 7% per annum from the date of petition till realization. It is feeling aggrieved by the award and dissatisfied with the quantum of compensation granted by the Tribunal that the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellant as also the learned counsel appearing for the third respondent, the insurer of the offending vehicle. 3. It is evident from the rival contentions that the accident as also the cause of the accident as the negligence on the part of the rider of the motorcycle are not in dispute. Though before the Tribunal the nature of the insurance M.A.C.A.No.752 of 2010 3 policy was claimed as 'act policy', the Tribunal arrived at a finding that it is a package policy. Despite such a clear finding by the Tribunal, the third respondent did not file any appeal. So also despite the receipt of the notice in this proceedings they have not chosen to file cross objection challenging the said finding. In the said circumstances the said finding has become final. In the light of the aforesaid position, in this appeal, we are only called upon to consider whether the appellant is entitled to get enhanced compensation. 4. The main grievance of the appellant is that though in the accident he had incurred a permanent disability which was assessed as 10% under Ext.A7 disability certificate issued by one Dr. C. Padmakumar, the Tribunal had declined to accept the same and then granted only a consolidated amount of Rs.15,000/- towards disability. It is the further contention of the learned counsel appearing for the appellant that a scanning on the impugned judgment would reveal that the Tribunal has granted compensation M.A.C.A.No.752 of 2010 4 under different heads such as 'pain and suffering', 'extra nourishment', 'bystander's expenses' and 'damage to clothing' only meagerly and it is the erroneous estimation of the compensation under different heads and the disinclination to take the entire percentage disability that virtually resulted in denial of just compensation. 5. Per contra the learned counsel appearing for the third respond contented that the Tribunal cannot be found fault with for not accepting Ext.A7 disability certificate for twin reasons. It is contended that Ext.A7 is not a certificate issued by a duly constituted Medical Board and secondly that the doctor who issued Ext.A7 was not examined before the Tribunal. The learned counsel for the third respondent further contented that even in spite of such circumstances the Tribunal granted Rs.15,000/- for the disability incurred in the accident. It is the further contention by the learned counsel that a perusal of the schedule of compensation appended to the judgment would reveal that the Tribunal has granted adequate compensation under all heads. In M.A.C.A.No.752 of 2010 5 short, it is submitted that no appellate interference is called for. 6. We will firstly considered the question whether the appellant is entitled to get enhancement of compensation for the disability incurred by him in the accident. True that the appellant had failed to prove Ext.A7 wherein the permanent disability incurred by him in the accident was certified as 10%. We are also of the view that the Tribunal cannot be found fault with for not accepting Ext.A7 for the reasons that it is not a certificate issued by a duly constituted Medical Board and that the doctor who issued the same was not examined. But we are of the considered view that it by itself is not a reason for granting only a consolidated amount of compensation for permanent disability incurred in an accident if the other evidence on record are convincing enough and would reveal the fact that in the accident the claimant had sustained injuries and such injuries resulted in permanent disability and if materials are available to assess it in percentage. M.A.C.A.No.752 of 2010 6 7. We are of the view that the very fact that the Tribunal had granted Rs.15,000/- towards permanent disability even after declining to accept the percentage of disability certified under Ext.A7, itself would indicate that the appellant had actually incurred disability in the accident. When that is evident, the point to be decided is whether the compensation ought to have been granted to the appellant for permanent disability after assessing the percentage of disability even while holding that Ext.A7 disability certificate cannot be taken as the basis for such calculation. We are of the view that the percentage of disability can be assessed by looking into Exts.A3 and A6 which would go to show that in the accident the appellant sustained a fracture of tibial condyle and type II shatzker left knee. It is thus obvious that Exts.A3 and A6 would reveal that in the accident he had sustained two fractures i.e. one on tibial condyle and the other on the tibial plateau. It is also a fact that he had been an inpatient for a period of 19 days. That apart Ext.A12 would reveal that open M.A.C.A.No.752 of 2010 7 reduction and internal fixation was done. Taking into account all such circumstances, we are of the view that the percentage of permanent disability incurred by the appellant in the accident can be safely taken as 5%. 8. Now the next question to be decided is with respect to the monthly income of the appellant for calculating the compensation for permanent disability. The appellant has produced Ext.A11 certificate to establish his occupation and income. The said certificate is issued by a private firm. No officer attached to the said firm namely, Royce Rubber Estate Private Limited who is competent to give evidence regarding his occupation and income was examined before the Tribunal to prove Ext.A11. In Ext.A11 there is nothing revealing his designation or at least the nature of his employment in the said firm. So also a scanning of Ext.A11 would reveal that all the relevant particulars bound to be shown in a salary certificate for the purpose of making it as an admissible piece of evidence are lacking. In the said circumstances, we are of the view that M.A.C.A.No.752 of 2010 8 for taking the monthly income of the appellant it is only just and proper to rely on a decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** as guidance. The Apex Court in that decision fixed the monthly income of a coolie who met with an accident in the year 2004, notionally at Rs.4,500/-. The accident in question occurred on 17.6.2005. That apart in this case Exts.A8 and A9 are to be taken note of. They are respectively the copy of the SSLC certificate and National Trade Certificate issued from ITI Ettumanoor revealing the fact that the petitioner is a certificate holder in Welder Trade. Taking into account all such circumstances, we are inclined to fix the monthly income of the appellant as Rs.4,500/- notionally for calculation purpose. The petitioner was aged 42 years on the date of the accident. His age is proved through Ext.A8 SSLC Book. Taking into account all such relevant factors, we are of the view that the amount of compensation payable for permanent disability has to be reassessed. While M.A.C.A.No.752 of 2010 9 considering the same, we are of the view that we shall not be lost sight of one aspect that the Tribunal granted Rs.15,000/- under the combined head of loss of amenities and permanent disability. Taking note of the nature of injuries and the consequential disability incurred by him, we are of the considered view that the amount thus granted by the Tribunal shall be adjusted against loss of amenities. In other words the amount payable towards compensation for permanent disability has to be assessed in the light of the aforesaid relevant factors. Based on such calculation, the appellant is entitled to get an amount of Rs.37,800/[4500x12x5x14/100]. Towards pain and suffering the Tribunal granted an amount of Rs.12000/-. As noticed hereinbefore the appellant had been an inpatient for a period of 19 days and it is evident from the impugned judgment that the Tribunal has taken the period of loss of earning as more than four months. Taking into account the nature of the injuries and the aforementioned aspects, we are of the view that the appellant is entitled to get M.A.C.A.No.752 of 2010 10 Rs.13,000/- additionally under the said head. Since Ext.A12 would reveal that open reduction and internal fixation was done it is evident that a future surgery is required. In such circumstances, towards future medical expenses, an amount of Rs.10,000/- is granted. The appellant had been an inpatient for a period of 19 days and the Tribunal granted only an amount of Rs.1,000/- towards extra nourishment and Rs.2,000/- towards bystander's expenses. Taking note of the fact that the accident occurred in the year 2005, we are of the view that the rate of bystander expenses ought to have been Rs.150/- per day and towards extra nourishment it ought to have been Rs.100/- per day. In that view of the matter, the appellant is entitled to get Rs.900/- towards extra nourishment additionally and towards bystander's expenses he is entitled to get an amount of Rs.850/- more. Towards damage to clothing only an amount of Rs.500/- was granted. The nature of the injuries would undoubtedly reveal that the dresses worn by him on the date of accident must have been damaged. In such circumstances, we are M.A.C.A.No.752 of 2010 11 inclined to grant Rs.500/- more. 9. In the light of the enhancement/assessment made by us, the appellant is entitled to get an amount of Rs.63,050/- additionally, which is rounded off to Rs.63,100/(Rupees sixty three thousand one hundred only). Since we have granted Rs.10,000/- towards future treatment, the said amount will not carry any interest. In other words, the appellant would be entitled to get interest at the rate of 8% per annum for an amount of Rs.53,100/- from the date of petition till realization. The third respondent is directed to deposit the amount payable under this award, within a period of two months from the date of receipt of a copy of this judgment, failing which, the amount remaining to be paid will carry interest at the rate of 9%. There will be no order as to costs. Sd/- **JUDGE** Sd/- **C.T. RAVIKUMAR** **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/