Antony @ Antu v. Iqbal, Ajith and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935 MACA.No. 835 of 2011 (F) ----------------------------AGAINST THE AWARD IN OPMV 373/2007 of MACT, IRINJALAKUDA DATED 31-12-2010 ----- APPELLANT/PETITIONER: ---------------------------- ANTONY @ ANTU, AGED 30 YEARS, S/O KUNJUVAREED, KAITHARATH HOUSE, POTTA DESOM, PERAMBRA VILLAGE, POTTA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENTS/RESPONDENTS: ----------------------------------- 1. IQBAL, S/O HYDROSE, PERIYA PALACE, FLAT NO.C2, ALUVA P.O., ERNAKULAM - 683101. 2. AJITH, S/O NARAYANAN, URALIL HOUSE, PUTHIYAKAVU, THRIPUNITHURA P.O., ERNAKULAM - 682 301. 3. UNITED INDIA INSURANCE CO. LTD., ELOOR ROAD, KALAMASSERY P.O. - 683104. R2 BY ADV. SRI.K.P.JOSE PIOUS R2 BY ADV. SRI.V.SUNIL KUMAR R3 BY ADV. SRI.T.V.AJAYAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ M. A. C. A. No.835 of 2011 -----------------------------------------------Dated this the 4[th] day of March, 2014 ## **JUDGMENT** The appellant has sustained serious injuries in a motor accident that occurred on 25-01-2007 involving a car driven by the second respondent, owned by the first respondent and insured with the third respondent. He has filed an application before the Motor Accidents Claims Tribunal, Irinjalakuda, claiming compensation on account of the injuries sustained in the accident. The Tribunal, after considering the matter, found that the accident had occurred due to the rash and negligent driving of the car by the second respondent and awarded a total compensation of - ₹ 51,578/- under various heads as follows: |Loss of earnings|-|<br>₹|8,000/-| |---|---|---|---| |Medical and miscellaneous|||| |expenses|-|<br>₹|10,358/-| |Bystander's expenses|-|<br>₹|1,200/-| |Transportation expenses|-|<br>₹|500/-| M. A. C. A. No.835 of 2011 -2- - Pain and suffering ₹ 15,000/Disability ₹ 11,520/Loss of amenities etc. ₹ 5,000/- Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant, learned counsel appearing for the second respondent and the learned Standing Counsel appearing for the third respondent. No representation for the first respondent despite serving notice on him. 3. Learned counsel for the appellant submits that the appellant was aged 36 at the time of accident. He has suffered very serious injuries including fractures in the accident. The injuries suffered by him caused permanent disability to him. In fact, a certificate showing 10% permanent disability has been produced. But, without any reason, the Tribunal has taken into account only 3% permanent disability for awarding compensation under that head. The compensation awarded by the Tribunal under M. A. C. A. No.835 of 2011 -3- various heads is very low. Therefore, he prays for enhancing the compensation under various heads. 4. Learned Standing Counsel for the third respondent, on the contrary, submits that the appellant was amply compensated under various heads in this case. The claim of the appellant for enhanced compensation is without any evidence. The permanent disability of 3% taken into account by the Tribunal is quite reasonable. Therefore, he prays for dismissing the appeal. 5. The appellant was taken to St. James Hospital, Chalakudy, after the accident. He has sustained head injury, abrasion on the left occipital region, haemorrhagic contusion involving left parietal region, sub arachnoid haemorrhage, fracture of left clavicle and displaced fracture of second and fifth ribs on the left side apart from some other minor injuries. He was treated as an inpatient from 25-01-2007 to 05-02-2007. He has also continued follow up treatments. Therefore, it is quite evident that the appellant has sustained serious injuries in the accident. M. A. C. A. No.835 of 2011 -4- 6. It is the case of the appellant that he was a cook at the time of accident. That fact has been stated in the F.I. Statement given by the appellant to the police. This Court does not find any reason to disbelieve the occupation so claimed by the appellant. But, the learned Tribunal did not consider these matters and fixed a monthly income of ₹ 2,000/- and awarded 8,000/- as compensation for loss of₹ earnings for a period of four months. The amount so awarded is insufficient. The accident in this case occurred in 2007. Therefore, a person who is a cook by profession can be found to be earning at least 3,000/- per month during₹ that period. In the circumstances, this Court does not interfere with the finding in respect of the period during which the appellant suffered loss of earnings viz., four months. Therefore, the compensation under the head of loss of earnings is enhanced from 8,000/- to 12,000/-. The₹ ₹ appellant has produced medical bills and vouchers worth ₹ 10,358/-. The Tribunal awarded only that amount under the head of medical expenses. The fact that the appellant has M. A. C. A. No.835 of 2011 -5- produced medical bills and vouchers worth 10,358/- alone₹ does not mean that the medical expenses incurred was only that much. The appellant has suffered serious injuries including head injury and fractures. When these facts are considered, it is only reasonable to award an amount of ₹ 12,500/- in the place of 10,358/- towards medical₹ expenses. Hence, 12,500/- is awarded. This Court does not₹ find any reason to interfere with the amounts awarded under the heads of expenses for bystander and transportation. The Tribunal has awarded 15,000/- as compensation for pain₹ and suffering. On considering the serious nature of the injuries suffered by the appellant, the amount so awarded is insufficient. Therefore, 20,000/- is awarded in the place of₹ ₹ 15,000/- as compensation for pain and suffering. 7. The appellant has produced a disability certificate showing that he has suffered a permanent disability of 10% as per Mc Bride's Scale for whole body. The Tribunal did not accept that disability certificate as it was not formally proved and finding that it was not issued by a medical board M. A. C. A. No.835 of 2011 -6- and the disability assessed in the certificate was not objective in nature. In such a circumstance, the Tribunal accepted only a disability of 3%. The disability certificate was issued by an orthopedic surgeon. It is true that he was not examined before the Tribunal. Non-examination of the doctor, who has issued the certificate showing the disability, itself is not a sufficient ground for rejecting that certificate. On considering the certificate, if the Tribunal has no reason to entertain doubt regarding the correctness of the statements made in the certificate or the quantum of disability certified in it, even in the absence of examination of the doctor, reliance can be placed on that certificate. In this case, the doctor who has issued the certificate has stated in so many words the reasons for certifying the permanent disability of 10% suffered by the appellant. When the reasons stated in the certificate are considered along with the serious nature of injuries including head injury and fractures suffered by the appellant, this Court does not find any reason to disbelieve the 10% permanent disability M. A. C. A. No.835 of 2011 -7- certified in the disability certificate. Therefore, the 10% disability certified is accepted. The Tribunal has rightly found that the appellant was aged 36 at the time of accident. Also found that the multiplier applicable to this case is 16. Going by the ruling of the Honourable Supreme Court in Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104), the appropriate multiplier to be adopted in this case is 15. This Court has already found that the appellant was earning a monthly income of 3,000/- at the time of accident.₹ Therefore, also considering the probable enhancement of income in future, the monthly income of the appellant is fixed at 4,000/- for the purpose of calculating and awarding₹ compensation for permanent disability and loss of earning power. Applying the multiplier of 15, the appellant is entitled to 72,000/- (4000 x 12 x 15 x 10/100) as compensation for₹ permanent disability and loss of earning power. Therefore, the said amount of 72,000/- is awarded in the place of ₹ ₹ 11,520/- awarded by the Tribunal. The Tribunal has awarded an amount of 5,000/- towards loss of amenities etc. On₹ M. A. C. A. No.835 of 2011 -8- considering the injuries sustained and the disability caused, ₹ 12,000/- is awarded under the said head. Thus, the appellant is entitled to 78,622/- (Rupees seventyeight₹ thousand six hundred and twentytwo only) over and above the compensation already awarded by the Tribunal. The said amount of 78,622/- shall also carry interest at the rate of₹ 9% per annum from the date of filing of the petition till realisation. The third respondent Insurance Company shall deposit the amount within two months from today. This appeal is allowed as above. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A. No.835 of 2011 -9-