Aravindakshan @ Aravindan v. Faisal and ICICI Lombard General 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 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938** **MACA.No. 2428 of 2012 () -------------------------** **AGAINST THE AWARD IN OPMV 2494/2008 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 29-06-2012** **APPELLANT(S)/PETITIONER IN OPMV: -------------------------------** ## **ARAVINDAKSHAN @ ARAVINDAN** **S/O.PAVITHRAN AJINU RAJ, MURUKKUTHARA VEEDU, PROJECT COLONY, AROOR, NOW RESIDING AT C/O.V.D.GOPI, VALLIPARAMBIL HOUSE, PALLURUTHY, COCHIN-2.** ## **BY ADV. SRI.A.P.SUBHASH** **RESPONDENT(S)/RESPONDENTS IN OPMV:** **----------------------------------** ## **1. FAISAL** **S/O.JAMAL, MALIYEKKAL, NEAR CHERUVALLI TEMPLE, P.O.AROOR, 7TH WARD, AROOR PANCHAYATH, CHERTHALA-688 534.** **2. ICICI LOMBARD GENERAL INSURANCE CO.LTD.** **3RD FLOOR, KANNANKERY ESTATE, SHANMUGAM ROAD, MARINE DRIVE, ERNAKULAM, KOCHI-682031, SHANMUGHAM ROAD, (POST OFFICE).** **R2 BY ADV. SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2428 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of May, 2016** ## **J U D G M E N T** ## **C.T. Ravikumar, J.** Feeling aggrieved by and dissatisfied with the judgment and award dated 29.6.2012 in O.P.(M.V.) No.2494/2008 passed by the Additional Motor Accidents Claims Tribunal, Ernakulam, the petitioner/injured preferred this appeal. He moved the aforesaid claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the injury sustained by him in a motor vehicle accident. The said accident occurred on 9.3.2008 at about 7.30 p.m. while he was riding his bicycle from south to north through Aroor Cherthala road. When he reached near Aruna Theatre, Aroor the offending vehicle which is a motorcycle bearing registration No. KL-32-8072, ridden by the first respondent in a rash and negligent manner, hit on his bicycle. Consequently the appellant sustained injuries and he was taken to Lekshmi Hospital, Aroor and from there to Ernakulam General Hospital. Later he was referred M.A.C.A.No.2428 of 2012 2 to Lourdes Hospital, Ernakulam. Altogether he had 12 days hospitalization. In the accident, he sustained the following injuries going by Ext.A1 wound certificate and A2 discharge summary: - (1) Head injury - (2) Fracture right occipital bone - (3) B/L frontal contusion - (4) Sub dural haematoma It is in the said circumstances, seeking compensation for the injury sustained, he filed the above mentioned claim petition seeking a total compensation of Rs.20 lakhs. The Tribunal on appreciation of the evidence, granted an amount of Rs.1,08,422/- with interest at the 9% per annum from the date of petition till realization. 2. Heard both sides. 3. It is evident from the rival contentions put forth before us that there is no dispute regarding the insurance coverage of the offending vehicle and also the fact that the M.A.C.A.No.2428 of 2012 3 cause of the accident was the negligence from the part of the first respondent owner-cum-rider of the offending vehicle. Therefore, the question to be considered is whether or not the appellant is entitled to get enhanced compensation. Evidently, the main grievance of the petitioner lies in respect of the fixation of the monthly income as also the percentage of permanent disability. The learned counsel appearing for the appellant contended that the appellant was aged 49 years at the time of the accident and he was a toddy tapper. On going through the evidence on record it is obvious that the said averments of the appellant were not seriously challenged or disputed by the respondents. In the sad circumstances the learned counsel contended that the fixation of the monthly income at Rs.4,000/- is too low and it requires fresh fixation taking into account all relevant aspects. The learned counsel further contended that the Tribunal had failed to take note of Ext.A11 certificate properly while fixing the monthly M.A.C.A.No.2428 of 2012 4 income. True that the appellant had not examined the person who issued Ext.A11 salary certificate. In the circumstances, the Tribunal cannot be found fault with in not accepting Ext.A11 certificate and also in fixing the monthly income of the appellant notionally. Hence, the question is whether the Tribunal is justified in fixing the monthly income of the appellant as Rs.4,000/-. The accident occurred in the year 2008. In the decision in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , in respect of a coolie who met with an accident in the year 2004 the Apex Court took the monthly income notionally at Rs.4,500/-. As noticed hereinbefore, in this case the appellant has to be considered as a skilled labourer who was tapping toddy and the year of the accident was 2008. Taking into account all such circumstances, we are of the view that the monthly income of the appellant for the purposes of computing compensation under different heads M.A.C.A.No.2428 of 2012 5 has to be taken as Rs.6,000/- per month. Though the learned counsel for the appellant vehemently contended that the Tribunal went wrong in assessing the permanent disability only as 10% after going through the evidence on record, we are of the view that the said contention cannot be accepted. Evidently the basis for the aforesaid contention of the petitioner is that as going by Ext.A3 the disability of the appellant was assessed as 100% . In Ext.A3 it is certified that the appellant is totally and permanently incapacitated to do tapping due to vertigo and post head injury seizure. Looking into the reasons given for making such an assessment we have no hesitation to say that the Tribunal cannot be said to have committed any error in not accepting the certification under Ext.A3 dated 15.6.2009. But at the same time it is obvious that the appellant was sent for medical examination by a duly constituted board by the Tribunal. It is in pursuance of such medical examination by the Board that Ext.A12 certificate was issued. Ext.A12 is M.A.C.A.No.2428 of 2012 6 dated 19.5.2011. As per Ext.A12 the duly constituted Medical Board on examination certified the percentage of permanent disability of the appellant as 10%. The Tribunal accepted the entire percentage of disability certified by the Board under Ext.A12. In the said circumstances, we do not find any merit in the contention that the Tribunal went wrong in assessing the permanent disability. Obviously the multiplier was adopted by the Tribunal for the purpose of computing the compensation payable for permanent disability with reference to the age of the appellant at the time of the accident. As noticed hereinbefore he was aged 49 years and in the light of the decision of the Hon'ble Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** the multiplier to be adopted is 13. Therefore, it cannot be said that the Tribunal had not adopted the correct multiplier with reference to the age of the appellant at the time of accident. The learned counsel for the appellant further contended that taking into account M.A.C.A.No.2428 of 2012 7 the number of injuries and nature of injuries the Tribunal ought to have taken four months as the period of loss of earning. It is further contended that the compensation granted by the Tribunal under the heads transportation expenses, damage to clothing, extra nourishment, compensation for pain and suffering and loss of amenities and enjoyment are all on lower side and they require an appellate modification. 4. Resisting the contentions raised, the learned counsel for the 2[nd] respondent contended that a bare perusal of the injury sustained by the appellant in the accident with reference to the compensation awarded under the impugned judgment would reveal that what was granted by the Tribunal is nothing but the just compensation and therefore it invite no appellate interference. We have already found that the monthly income notionally fixed by the Tribunal invites interference and rejecting the contention of the 2[nd] respondent we have already fixed the M.A.C.A.No.2428 of 2012 8 same as Rs.6,000/- itself. In this case the Tribunal took only three months as the loss of earning. Taking into account the nature of the injuries we are of the considered view that the period can be safely fixed as four months for the aforesaid purpose. In the light of the fixation of the monthly income as Rs.6,000/- and the period of loss of earning as four months the appellant would be entitled to get an additional amount of Rs.12,000/- under the head loss of earning. Towards transportation expenses, the Tribunal granted an amount of Rs.1,000/- as against the claim of Rs.5,000/-. Taking into account the nature of injuries and the number of visitation to hospital, we are inclined to grant an amount of Rs.1,000/- more under the head. Towards damages to clothing, the Tribunal granted Rs.5,00/-. The nature of the injuries would undoubtedly indicate that the dresses worn by him on that fateful day must have been damaged. In the said circumstances we are inclined to grant Rs.500/- more under that head. As against the claim 9 M.A.C.A.No.2428 of 2012 of Rs.5,000/- for expenses for extra nourishment the Tribunal granted an amount of Rs.1,000/-. The injuries noted hereinbefore would indicate that the appellant had to have extra nourishment for recuperation. In such circumstances, we are inclined to grant Rs.1,000/- more towards expenses for extra nourishment. Under the head shock, pain and sufferings, the appellant claimed an amount of Rs.50,000/- and the Tribunal granted Rs.15,000/-. Exts.A1 & A2 would reveal that he had sustained head injuries fracture of right occipital bone, B/L frontal contusion, sub dural haematoma. In such circumstances, especially taking into account the age of the appellant at the time of the accident and the nature of the injuries, we are of the considered view that the amount granted under the said head is too low. Hence the compensation under the said head is enhanced by Rs.10,000/-. In other words the appellant will be entitled to get Rs.10,000/- more under the head. Towards compensation for the continuing permanent M.A.C.A.No.2428 of 2012 10 disability incurred in the accident the appellant claimed an amount of Rs.16 lakhs and the Tribunal granted an amount of Rs.62,400/-. Evidently, the appellant claimed such an exorbitant amount based on his own assessment in the light of Ext.A3. We have already found that the multiplier as also the percentage of disability assessed by the Tribunal invite no interference and at the same time we have already fixed the notional monthly income of the appellant as Rs.6,000/instead of Rs.4,000/-. Therefore, substituting the multiplicand and following the same formula if the compensation under the said head is re-assessed the appellant would be entitled to get additionally an amount of Rs.31,200/-. We award the said amount. Towards loss of amenities and enjoyment in life, the appellant claimed an amount of Rs.2 lakhs and the Tribunal granted an amount of Rs.5,000/-. Taking note of the nature of injuries and other circumstances expatiated hereinbefore, we are of the view that the appellant can be granted an amount of Rs.10,000/- M.A.C.A.No.2428 of 2012 11 more as compensation towards loss of amenities and enjoyment in life. In view of the aforesaid discussions the appellant would be entitled to get a total enhanced amount of Rs.65,700/- which is rounded of to Rs.66,000/-. The enhanced amount of Rs.66,000/- (Rupees sixty six thousand only) will carry interest at the rate of 8% per annum from the date of petition till realization. The second respondent is directed to deposit the enhanced amount within 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%. The appeal is allowed as above. The parties shall bare their respective costs. Sd/- ## **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/