Asokakumar S/o Narayanan Nair v. Santhakumari K. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938 MACA.No. 406 of 2009 ( ) ------------------------AGAINST THE AWARD IN OPMV 1314/2003 of MACT, IRINJALAKUDA DATED 16-02-2008 APPELLANT(S)/PETITIONER:: ----------------------------- ASOKAKUMAR S/O. NARAYANAN NAIR, EDAPILLY KUNNEL HOUSE, PANAMATTOM P.O., KOORALY, KOTTAYAM DISTRICT. ## BY ADV. SRI.N.KRISHNANKUTTY PILLAI RESPONDENT(S)/DEFENDANTS:: -------------------------- ## 1. SANTHAKUMARI.K. “PRASANTHI”, T-KAVALA, CHIRAKADAVU CENTRE P.O., KOTTAYAM, DISTRICT. - 2. RAMESH.R, S/O.RAMAKRISHNA PILLAI, PARAKUZHIYIL HOUSE, KADUNGA, YENDAYAR P.O., IDUKKI DISTRICT. (DELETED) 3. THE MANAGER, ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, P.B.NO,24, CHEERANVELIL BUILDINGS,, K.K.ROAD, KANJIRAPALLY 686 507. *2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 18.8.2016 IN I.A.2830/16 IN MACA.406/09. ## R3 BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.406 OF 2009** **==========================** Dated this the 20[th] day of October, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-petitioner preferred this appeal seeking enhancement of the quantum of compensation granted by the Motor Accidents Claims Tribunal, Irinjalakkuda in O.P.(MV).No.1314 of 2003. The said claim petition was filed under section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 24.8.2003. Since there is no dispute regarding the accident, cause of the accident as negligence on the part of the second respondent as also the liability to indemnify the insured-owner, we do not think it necessary to delve into such aspects. In short, the sole question to be considered is whether or not the appellant is entitled to get enhanced compensation. **M.A.C.A.406/2009** 2 2.We have heard Adv.Sri.N.Krishnankutty Pillai, the learned counsel for the appellant and Adv.P.Jayasankar, the learned counsel appearing for the third respondent-insurance company. 3.The main grievance of the appellant is regarding the fixation of the monthly income. The appellant has a grievance with respect to the assessment of permanent disability as well by the Tribunal ignoring Ext.A8 disability certificate. According to the appellant, the compensation granted towards loss of amenities and bystanders expenses is inadequate. 4.The learned counsel for the insurance company submitted that the appellant has failed to establish the averments regarding his occupation and income and therefore, fixation of the monthly income notionally at `2,000/- invites no interference. It is also submitted that the Tribunal granted a total compensation of `1,90,500/- which is a **M.A.C.A.406/2009** 3 just compensation commensurating with the injuries sustained by the appellant and therefore, no appellate interference is called for. 5.Having heard the learned counsel on both sides, we are of the view that an interference is required with respect to the fixation of monthly income as also with respect to the assessment of disability compensation. The accident occurred on 24.8.2003. The appellantpetitioner claimed that he was a Photographer and was earning `4,000/- per month. However, he had not adduced any evidence to establish his occupation and income. In such circumstances, we are of the view that in the matter of notional fixation of monthly income, in the absence of relevant materials, the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** has to be taken for guidance though the accident involved in that case occurred after the accident involved in this case. In **Ramachandrappa** 's case, in respect of a coolie who met with an accident in the year 2004, the Hon'ble **M.A.C.A.406/2009** 4 Apex Court fixed `4,500/- as the monthly income. The accident involved in this case occurred on 24.8.2003. Therefore, we are of the view that the claim of the appellant regarding the income need not be disbelieved. In other words, we are inclined to take the monthly income of the appellant as `4,000/-, for calculation purpose. Ext.A8 would reveal that the disability of the appellant was assessed as 25%. Admittedly, it is not issued by a duly constituted medical board. Ext.A8 certificate was not proved by examining the doctor who issued the same before the Tribunal. In such circumstances, we do not find any reason to hold that the Tribunal went wrong in not accepting the entire percentage of disability assessed thereunder. But at the same time, the recital in the impugned award would reveal that the physical condition of the appellant was noted by the Tribunal in open court. Evidently, on such examination, the Tribunal thought it only proper to accept the claim for disability compensation though the doctor who issued Ext.A8 disability certificate was not examined. The Tribunal found Ext.A8 as acceptable and converted the limb disability into **M.A.C.A.406/2009** 5 whole body disability, but assessed it only as 10%. Since the Tribunal found it acceptable on seeing the appellant, we are of the view that it is only proper and just to take 15% as the permanent disability on converting it as whole body disability, for calculation purpose. The multiplier was taken as 18. The case of the appellant is that he was aged 26 years on the date of the accident. The learned counsel for the third respondent submitted that in such circumstances, in the light of the schedule given in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the multiplier applicable is 17. It is only to be accepted. Taking into account such factors, viz., the re-fixed monthly income and the multiplier as 17 and the permanent disability as 15%, re-assessment of compensation payable for disability has to be made. On such assessment, the appellant is entitled to get an amount of `1,22,400/- as compensation for permanent disability. The Tribunal has already granted a sum of `43,200/-. Thus, the appellant would be entitled to get an additional compensation of `79,200/under the said head. It is granted. Based on the fixation of the **M.A.C.A.406/2009** 6 monthly income as `4,000/-, the appellant is entitled to get enhanced compensation towards loss of earning. We do not propose to interfere with the period fixed by the Tribunal in that regard. In such circumstances, the appellant is awarded an amount of `10,000/-, additionally under the said head. The nature of the injuries would reveal that he had sustained fracture on ribs as also on spine. X-ray would reveal that he had compound fracture of ribs 9 to 11 and also spinous fracture of D3, D4, D5 and D7 bones. In such circumstances, we are of the view that the compensation granted by the Tribunal towards loss of amenities is low. We are inclined to grant `7,000/more under the said head. The appellant had been an inpatient for a period of 29 days. The Tribunal granted an amount of `2,900/towards hospital expenses including bystanders expenses. The said amount is adjusted towards extra nourishment treating the rate as `100/- per day. The appellant would be entitled to get an amount of `4,350/-more by taking bystanders expenses as `150/- per day. In the light of the assessment and enhancement of compensation given by **M.A.C.A.406/2009** 7 us, the appellant is entitled to get an additional compensation of `1,00,550/-. It is granted. The additional compensation will bear 8% interest from the date of the petition till realisation. While condoning the day, we have passed an order in C.M.Appln.No.421of 2009 to the effect that the period of delay will not be counted for interest if ultimately enhancement of compensation is granted in the appeal. In the light of the said order, the appellant would not be entitled to get interest for a period of 256 days viz., the delay occurred in the matter of filing the appeal. The third respondent is directed to deposit the said amount within two months from the date of receipt of copy of this judgment. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.406/2009** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.406/2009** 9 **JUDGMENT September, 2010**