Arjun S/O Sankaranarayan Pillai v Sudheep Sugathan Narayan; Deepa Saksena; The New India Assurance 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 FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938 MACA.No. 530 of 2009 ( ) ------------------------AGAINST THE AWARD IN OPMV 771/2005 of MACT, THODUPUZHA ## APPELLANT(S):PETITIONER ----------------------------- ARJUN.S. S/O.SANKARANARAYANA PILLAI, ALAPPATTU HOUSE, OLAMATTOM KARA, THODUPUZHA VILLAGE AND TALUK. BY ADVS.SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT(S):RESPONDENTS ------------------------------------ 1. SUDHEEP SUGATHAN NARAYAN S/O.SUGATHAN, PULAKKUDIYIL, ARIKKUZHA KARA, MANAKKADU VILLAGE, THODUPUZHA TALUK. 2. SMT. DEEPA SAKSENA, D/O.LATE MOHANAN, MAVILLAYATHU, ERAVIPURAM, KOLLAM. 3. THE NEW INDIA ASSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, MUVATTUPUZHA. R1 BY ADV. SRI.A.T.ANILKUMAR R1 BY ADV. SRI.P.DALBI EMMANUEL R3 BY ADV. SRI.P.G.GANAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-07-2016 ALONG WITH MACA. 536/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ========================== M.A.C.A. Nos.530 & 536 OF 2009 ==========================** Dated this the 29[th] day of July, 2016 ## **JUDGMENT** _Ravikumar, J._ These appeals arise from a common award passed by the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV).Nos.423 and 771 of 2005. The former appeal is filed by the injured-petitioner against the judgment and award in O.P.(MV).No.771 of 2005 and the latter appeal is preferred by the mother and sister of deceased Sinesh Gopal against the judgment and award in O.P.(MV).No.423 of 2005. The claim petitions were filed in respect of an accident which occurred on 27.4.2005 at Thodupuzha in which the appellant in the former appeal sustained injuries and Sinesh Gopal succumbed to the injuries on 8.5.2005 at about 12.30 p.m. They were standing by the **M.A.C.A.530 & 536/2009** 2 side of Thodupuzha-Muttom PWD road. The offending vehicle which is a Lancer car bearing Reg.No.KL 3E/6001 came from Thodupuzha side and knocked them down. In the accident, the appellant in the former appeal sustained injuries. Sri.Sinesh Gopal sustained injuries and he was initially taken to Chazhikattu Hospital, Thodupuzha from where he was referred to Mosc Medical College Hospital, Kolencherry. While undergoing treatment there, on 8.5.2005, he breathed his last. The above referred claim petitions were filed in the said circumstances and they were jointly enquired into and a common award was passed by the Tribunal. As per the award in O.P.(MV).771 of 2005, a total compensation of `2,07,261/- which is rounded off to `2,07,300/- was granted. In O.P.(MV).423 of 2005, a total compensation of `4,34,959/- which is rounded off to `4,35,000/- was granted. The amounts were ordered to carry interest @ 8% from the date of the petition till realisation. It is seeking enhancement of the compensation granted by the Tribunal that these appeals have been filed. Since the claim petitions germinated from the same occurrence **M.A.C.A.530 & 536/2009** 3 and the appeals arise from the common judgment, we heard the appeals jointly and they are being disposed of by this common judgment. ## **M.A.C.A.No.530 of 2009** 2.This appeal is directed against the award in O.P.(MV).No.771 of2005. In the accident, going by Ext.A15 wound certificate and Exts.A16 to A19 discharge summaries, the appellant had sustained mainly the following injuries:- 1.Abrasion on right leg on antere lateral aspect. 2.Abrasion on posterior aspect of right forearm. 3.Swelling deformity on right side of mandible. Ext.A25 is the disability certificate and permanent disability is certified thereunder as 15%. In the claim petition, it was claimed that he was a salesman and was earning `3,000/- per month. The Tribunal took his monthly income as claimed and with reference to his age on the date of the accident, the multiplier was taken as 16. The percentage of disability was taken by the Tribunal as 10% for the **M.A.C.A.530 & 536/2009** 4 purpose of calculating compensation for permanent disability. The contention of the appellant is that the Tribunal went wrong in adopting the multiplier and the percentage of disability was also assessed wrongly. It is contended that the mistake crept while fixing the aforesaid factors resulted in denial of due compensation under the said head. The learned counsel further submitted that even after taking the period of loss of earning as more than two months, the Tribunal had not considered the question whether the appellant is entitled to get compensation for loss of amenities. So also, towards future treatment, no amount was granted. It is the further contention that the amount granted towards extra nourishment, pain and suffering and bystanders expenses are also on the lower side. In such circumstances, it is contended that the compensation granted under the aforesaid heads requires an upward modification. 3.The learned counsel appearing for the third respondent submitted that the Tribunal cannot be found fault with, in not **M.A.C.A.530 & 536/2009** 5 accepting the entire percentage of disability as a perusal of Ext.A25 would reveal that the medical board had not assigned any reason based on which the percentage of disability was assessed as 15%. It is the further contention that a bare perusal of the schedule attached to the judgment would reveal that under all heads, the appellant was granted adequate compensation. In short, according to the learned counsel, no appellate interference is called for. 4.First of all, we will consider the question whether the appellant is justified in contending that the assessment of permanent disability by the Tribunal invites interference. On a perusal of the impugned judgment, it is evident that one of the reasons assigned by the Tribunal in not accepting the entire percentage of permanent disability certified under Ext.A25 is the failure on the part of the appellant to get examined at least one of the members of the medical board. Ext.A25 would reveal that it is a certificate issued by a duly constituted medical board. When that be the position, we are of the **M.A.C.A.530 & 536/2009** 6 considered view that the genuineness of such a certificate need not be doubted. In such circumstances, non-examination of any one of the members of the medical board cannot be assigned as a reason for not acting upon the disability certificate. There cannot be any inviolable position that the entire percentage of disability certified in disability certificate, be it one issued by a Board or not, has to be accepted by the Tribunal. It is in fact, an expert opinion and therefore, it is always open to the Tribunal to take into consideration of the same and to assess the disability properly, for calculation purpose. We do not find any reason to disagree with the finding of the Tribunal that the board which assessed permanent disability had not given reasons for assessing 15% of disability. When that be the position discernible from Ext.A25, we do not find any reason to interfere with the assessment of permanent disability made by the Tribunal as 10%. As noticed hereinbefore, the monthly income claimed by the appellant was accepted by the Tribunal. But at the same time, the contention of the appellant that the Tribunal wrongly identified the multiplier is **M.A.C.A.530 & 536/2009** 7 having force. The appellant was aged only 21 years on the date of the accident. The Tribunal took only 16 as the multiplier. To look into the correctness of the fixation of the multiplier, the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** has to be looked into. Needless to say that in the light of the schedule given in the said decision, in respect of a person who falls within the age group of 21-25 years, the multiplier to be adopted is 18. In such circumstances, it can only be said that the Tribunal went wrong in fixing the multiplier as 16 instead of 18. On re-assessment with the multiplier 18 and following the same formula, the appellant would be entitled to get `7,200/- additionally towards compensation for disability. While considering the question whether the appellant is entitled to get enhancement of compensation granted under the heads pain and suffering, loss of earning, extra nourishment and bystanders expenses, the period of hospitalisation and the nature of the injuries have to be taken into account. As noticed hereinbefore, it is evident that besides the fracture on the condyle of the mandible, **M.A.C.A.530 & 536/2009** 8 he had suffered jijinal perforation. Evidently, he had been an inpatient for a period of 31 days. It is also evident that he had undergone treatment for a considerably long period even thereafter. Taking into account all such aspects, we are of the view that the amount granted by the Tribunal towards pain and suffering is on the lower side. The Tribunal granted only `18,000/- thereunder. We are inclined to grant `12,000/- more under that head. Towards loss of earning, the Tribunal took only a period of 2½ months. The factors which we have taken into account for the purpose of fixing the compensation for pain and suffering constrain us to say that the period ought to have been taken as six months. In such circumstances, the appellant is entitled to get an amount of `10,500/- additionally under that head. Towards extra nourishment, the Tribunal granted only a sum of `2,000/-. The nature of the injuries and the period of treatment as also the certification made in Ext.A20 are to be taken into account. Ext.A20 would reveal that taking note of such injuries, the doctor who issued Ext.A20 opined that owing to the blunt injury of abdomen with jijinal **M.A.C.A.530 & 536/2009** 9 perforation and fracture mandible, he needs restricted diet and abdominal support at least for 1½ years. In such circumstances, we are of the view that towards extra nourishment, an amount of `10,000/- more has to be awarded. It is awarded. Towards bystanders expenses, the Tribunal awarded only an amount of `2,000/-. Taking note of the fact that the accident occurred in the year 2005 and taking note of the period of hospitalisation, we are of the view that the rate of bystanders expenses ought to have been fixed as `150 per day. In that view of the matter, the appellant is entitled to get `2,650/additionally. As noticed hereinbefore, despite taking note of the fact that the appellant had sustained a permanent disability of 10% and he had a considerably long period of treatment, the Tribunal had not granted any amount under the head loss of amenities. It is also to be noted that no amount whatsoever was granted towards future treatment. In view of the factors which we have taken into account as mentioned hereinbefore, we are of the view that the Tribunal ought to have granted some amount towards future treatment. According to us, **M.A.C.A.530 & 536/2009** 10 it would only be just and proper to grant an amount of `20,000/towards loss of amenities and an amount of `15,000/- towards future treatment. Accordingly, the said amounts are granted. In the light of the discussions as above, the appellant is entitled to get a total enhanced amount of `77,350/-. The said enhanced amount will bear 8% interest from the date of the petition till realisation. M.A.C.A.No.536/2009 5.This appeal is directed against the judgment and award in O.P. (MV).No.423 of 2005. As noticed hereinbefore, it was filed seeking compensation for the death of one Sinesh Gopal. He was aged 23 years on the date of the accident and he was a Steward in Indian Navy. He died on 8.5.2005 i.e., about eleven days since the date of the accident. In the claim petition, an amount of `12,00,000/- was claimed. The Tribunal awarded only an amount of `4,35,000/-. The contention of the learned counsel for the appellant is that the Tribunal fixed the monthly income of the appellant only as `2,000/-. So also, **M.A.C.A.530 & 536/2009** 11 the Tribunal fixed the multiplier erroneously with reference to the age of the mother of the deceased. Further, it is contended that a bare perusal of the heads under which compensation were granted by the Tribunal would reveal that under all such heads the Tribunal granted only meagre sums. Therefore, it is the submission that an upward modification of the compensation is required under such heads. 6.Per contra, the learned counsel for the third respondent submitted that a bare perusal of the impugned award would reveal that taking into account all aspects, the Tribunal granted just compensation and therefore, the impugned judgment does not require any appellate interference. 7.We will firstly consider the question whether the Tribunal has correctly fixed the multiplier. Evidently, in this case, the Tribunal took the multiplier with reference to the age of the mother of the deceased. In the light of the decision of the Hon'ble Apex Court in **M.A.C.A.530 & 536/2009** 12 **Munna Lal Jain v. Vipin Kumar Sharma** reported in **(2015) 6 SCC 347,** there cannot be any doubt with respect to the position that in a claim filed under section 166, M.V.Act for death, the multiplier has to be taken with reference to the age of the deceased as held in **Sarla Verma** 's case (supra). As noticed hereinbefore, on the date of the accident, the deceased Sinesh Gopal was aged only 23 years. In such circumstances, taking into account the schedule given in **Sarla Verma'** s case, the correct multiplier to be adopted is 18. Accordingly, the multiplier is taken as 18. Now, we will consider the question whether the Tribunal has fixed the monthly income correctly for calculating the compensation payable for loss of dependency. In that context, Ext.A25 has to be looked into. It would reveal that gross salary of the deceased was `6,463/-. While fixing his monthly income, the fact that he was a steward in the Indian Navy has to be taken into account. The details of his salary has been specifically mentioned in Ext.A25. The fact that he was a member of Indian Navy would undoubtedly go to show that unlike other ordinary persons, he **M.A.C.A.530 & 536/2009** 13 might not have incurred much personal expenses. Though the deductions from his salary were not properly shown in Ext.A25, taking note of other aspects, we are of the view that an amount of `6,000/- can be taken as his monthly income. The appellant was aged only 23 years and he was a salaried person. In the said circumstances, in the light of the decision in **Sarla Verma'** s case, an addition of 50% has to be made for the income reckoning his future prospects. In such circumstances, the monthly income of the appellant ought to have been fixed as `9,000/-, for calculation purpose. The deceased was a bachelor. In such circumstances, in the light to the decision in **Sarla Verma** 's case, 50% of the income has to be deducted towards personal expenses. Reckoning all such factors, if the amount payable towards loss of dependency is re-assessed, the appellant would be entitled to get an amount of `9,72,000/- (9000x12x18x1/2). The impugned award would reveal that the Tribunal has already granted `2,64,000/-. After deducting the amount already awarded, the appellant would be entitled to get an amount of `7,08,000/-. Under the combined head of **M.A.C.A.530 & 536/2009** 14 transportation to hospital and funeral expenses, the Tribunal granted an amount of `5,000/-. The facts expatiated earlier would reveal that immediately after the accident, he was initially taken to Chazhikkattu Hospital, Thodupuzha and thereafter he was referred to Medical College Hospital, Kozhikode. It was while undergoing treatment there, he breathed his last. In such circumstances, we are of the view that an amount of `3,000/- has to be granted towards transportation. Towards funeral expenses, the Tribunal granted only an amount of `2,000/-. In the light of the decision in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],** in the absence of evidence for higher expenses, a minimum of `25,000/- has to be granted towards funeral expenses. In such circumstances, after deducting `2,000/-, the appellant would be entitled to get an amount of `23,000/- more under that head. Towards loss of love and affection, the Tribunal granted only an amount of `10,000/-. The evidence on record would reveal that the first appellant was a widow and the deceased was her only son. She was aged 50 years on the date of the accident. Taking into **M.A.C.A.530 & 536/2009** 15 account all such aspects, we are of the view that an amount of `40,000/- has to be granted additionally towards loss of love and affection. Accordingly, it is granted. The amount granted under this head has to be shared equally by the appellants. Towards pain and suffering, an amount of `15,000/- was granted by the Tribunal. As noticed hereinbefore, the accident occurred on 27.4.2005 and while undergoing treatment, he succumbed to the injuries on 8.5.2005. Thus it is evident that deceased had to endure excruciating pain for a period of 11 days. In such circumstances, we are inclined to grant an amount of `10,000/- more under that head. It is evident that no amount was granted by the Tribunal towards loss of estate. We are inclined to grant a conventional amount of `10,000/- under that head. In the light of the discussions as above, the appellant is entitled to get a total enhanced amount of `7,91,000/- It is awarded. The said amount will carry interest at 8% from the date of the petition till realisation. In this case, taking note of the fact that the second appellant was already given in marriage she could not be treated as a dependent. In such **M.A.C.A.530 & 536/2009** 16 circumstances, she is entitled only to that portion of the amount which we have granted as her share under the head loss of love and affection along with interest thereon. The rest of the amount shall be paid to the first appellant. In both the appeals, the third respondent shall deposit the amount within a period of two months from the date of receipt of a copy of this judgment along with interest thereon. The Tribunal shall realise the balance court fee payable in accordance with law in both cases. There will be no order as to costs in both the appeals. **Sd/(JUDGE)** **C.T. RAVIKUMAR** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** //true copy// P.A.to Judge # **M.A.C.A.530 & 536/2009** 17 **M.A.C.A.530 & 536/2009** 18 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.530 & 536/2009** 19