ARUN P.S. v. Ranganathan K.P., Vadivel, and The National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945** ## **MACA NO. 1710 OF 2013** **AGAINST THE ORDER/JUDGMENT DATED 25.03.2013 IN OPMV NO.2184 OF** **2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **ARUN P.S. AGED 29 YEARS S/O. SADANANDAN @ SADASIVAN, POTTEKKAT HOUSE, KARUVAMKULAM, PERINGOTTUKARA P.O., THRISSUR DISTRICT. BY ADVS. SRI.C.HARIKUMAR SMT.ANUROOPA** ## **RESPONDENTS/RESPONDENTS:** **1 RANGANATHAN K.P. S/O. K.M.P.RAVU, PUTHIYAKULANGARAYIL, ISWARAN KOVIL STREET, RAMANADHAPURAM, COIMBATORE, TAMIL NADU-641 045. 2 V.VADIVEL S/O. VELLINGIRIL, 33, TPN STREET, RAMANADHAPURAM DISTRICT, COIMBATORE, TAMIL NADU-641 045, CHENNAI. 3 THE NATIONAL INSURANCE COMPANY LTD. CHENNAI-600 001.** **BY ADV SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A No. 1710 of 2013 ## **JUDGMENT** The appellant was the petitioner in O.P.(M.V) No. 2184/2005 on the files of the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 18.05.2005. According to the appellant, the accident occurred, when he was travelling as a pillion rider on a motorcycle, the said motorcycle was hit by a container lorry bearing registration number TN-33/B-5343, driven by the first respondent. The second respondent was the registered owner and the third respondent was the insurer of the said lorry. The appellant sustained serious injuries in the accident. He was aged 21 years at the time of the accident and was working as a salesman in a bakery with a monthly income of Rs. 4,500/-. The claim petition was submitted in such circumstances. 2. The third respondent alone contested the matter by filing a written statement wherein, they admitted the coverage of policy for the said vehicle. However, they denied negligence on the part of the first respondent in driving the lorry and according to them, the accident occurred due to the negligence 3 ## M.A.C.A No. 1710 of 2013 of the rider of the motorcycle. It was also contended that the driver of the lorry was not having a valid driving licence and badge. Therefore they contended violation of policy conditions. The quantum of compensation was also disputed by them. 3. The evidence in this case consists of Ext. A1 to A10 from the side of the appellant and the copy of the policy was marked as Ext. B1 from the side of the respondents. After the trial, the Tribunal found that the accident occurred due to the negligence of the first respondent in driving the lorry and being the insurer, the third respondent was held liable to pay the compensation. Moreover, the third respondent was granted the right to recover the compensation from the second respondent as well. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 4. Heard, Sri. C Harikumar, the learned counsel appearing for the appellant and Smt. P.K Santhamma, the learned counsel appearing for the 3[rd] respondent. 5. The only question that arises for consideration is whether any enhancement as sought in the appeal is to be granted or not. On going through the records, I find that, in 4 ## M.A.C.A No. 1710 of 2013 some of the heads, the compensation awarded is on the lower side and hence interference is required. As rightly pointed out by the learned counsel for the appellant, the monthly income accepted by the Tribunal for assessment of compensation for disability was only Rs.3,000/- as against the claim of Rs.4,500/which appears to be on the lower side. It is to be noted that the accident occurred in the year 2005. Of course, it is true that there is no proper evidence adduced to substantiate the monthly income. However, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], the Honourable Supreme Court was pleased to take the monthly income as Rs.4,500/- in respect of an employee, for the accident occurred in the year 2004 even in the absence of any evidence. Therefore, under no circumstances, the claim of Rs. 4,500/- for an accident occurred in the year 2005 can be treated as unreasonable. Therefore, the said amount is accepted as the monthly income. 6. The percentage of disability certified in Ext.A9 was 4% and the said percentage was reduced to 2% merely because 5 M.A.C.A No. 1710 of 2013 of the reason that the Doctor was not examined. The injuries as discernible from the records are as follows: “Lacerated wound at the bars of nose, on upper lip, contus on brain whole left side of chest, left shoulder, left upper arm,left forearm, fracture left scapular neck.” Considering the nature of injuries, the possibility of the appellant sustaining whole body disability of 4% cannot be ruled out. It is also a well settled position of law that in the absence of any serious discrepancy in the assessment of disability, the percentage of disability certified by a competent doctor shall not be scaled down by the Tribunal. In this case, I do not find any such discrepancies so as to warrant any reduction of percentage of disability certified in Ext.A9 Therefore, the percentage of disability is accepted as 4% as certified in Ext.A9. Thus, while reassessing the compensation with the revised monthly income and percentage of disability, the amount of compensation for disability and loss of earning capacity comes to Rs.38,880/-. (4,500 x 12 x 18 x 4/100). The amount already awarded by the Tribunal under this head is Rs.12,960/- and thus the additional compensation comes to Rs.25,920/-. 6 M.A.C.A No. 1710 of 2013 7. Consequent to the revision of monthly income, the appellant would be entitled to additional compensation for the loss of earnings. The Tribunal awarded compensation under this head for a period of three months and the said period appears to be reasonable. Therefore, a further sum of Rs.4,500/-is awarded under the said head. The Tribunal did not award any compensation for extra nourishment, despite the fact that the appellant had undergone 23 days of inpatient treatment. Therefore, a sum of Rs.1,000 **/-** is awarded under this sentence. 8. No amount is awarded by the Tribunal towards damages to clothing. In the facts and circumstances of the case, I deem it appropriate to grant an amount of Rs.1,000 **/-** under the said head. The amount awarded towards pain and suffering was Rs.18,000/- which appears to be on the lower side. Considering the nature of injuries that the appellant sustained and the period of inpatient treatment which he had undergone, I deem it appropriate to grant a further sum of Rs.12,000/- under the said head. 9. Similarly, the amount awarded towards loss of amenities was only Rs.14,000. Considering the nature of 7 M.A.C.A No. 1710 of 2013 injuries, the disability arising therefrom, and the impact that can cause on the life of the appellant who was only 21 years at the time of the accident, I deem it appropriate to grant a further sum of Rs.11,000/- under the said head. Thus, the total additional compensation is determined as Rs.55,420/- (25,920 + 4,500 + 1,000 + 1,000 + 12,000 + 11,000). In the result, this appeal is allowed. The award dated 25.03.2013 passed by the Motor Accident Claims Tribunal, Thrissur in OP(M.V) 2184/2005 is hereby modified by granting an additional compensation of Rs.55,420/- (Rupees fifty five thousand four hundred and twenty only) and the said amount shall be deposited by the third respondent with interest at the rate as ordered by the Tribunal along with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that, as the delay of 50 days in filing the appeal was condoned by this Court subject to the condition that the appellant shall not be entitled to interest for the additional compensation pertaining to the period of delay, the third respondent shall be at liberty to exclude the said period while computing the interest on the additional 8 ## M.A.C.A No. 1710 of 2013 compensation. It is further ordered that, the claimant shall furnish the details of PAN card Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the receipt of a copy of this judgment. In case, he fails to furnish the said details it shall be open for the insurance company to deposit the said amount before the Tribunal. However, as this Court did not interfere with the right of recovery granted to the third respondent, it shall be open for the third respondent to recover the additional compensation from the second respondent. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk