A.T. Velukutty v. K. Jayakumar and The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943 MACA NO. 1860 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 3099/2002 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **A.T.VELUKUTTY, S/O.KUNJAN ASARITHODI HOUSE, P.O.AMAYOOR,(VIA) PATTAMBI,, PALAKKAD DIST. BY ADV SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS:** **1 K.JAYAKUMAR, S/O.NARAYANAN, KOTTEKKATTIL HOUSE, PALAPPURAM, OTTAPALAM,, PALAKKAD DIST.** **2 THE NEW INDIA ASSURACNE CO. LTD. REPRESENTED BY THE DIVISIONAL MANAGER, THE NATIONAL, INSURANCE CO. LTD., DIVISIONAL OFFICE, THRISSUR.** **BY ADV SRI.LAL K.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No. 1860 of 2009_ _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1860 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of June, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.3099 of 2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the claim petition are the respondents in the appeal. 2. The relevant facts in the claim petition, for the determination of the appeal are: on 26.04.2002 while the appellant was walking through public road and when he reached Palapuram, an autorickshaw bearing registration No.KL9/G 9557 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner, hit the appellant. He sustained serious injuries and was treated at the Medical College Hospital, Thrissur as an in-patient for 18 days. The accident was caused solely due to the negligence on the part of _MACA No. 1860 of 2009_ _3_ the 1[st] respondent, who was also the owner of the offending vehicle. The offending vehicle was insured with the 2[nd] respondent. The appellant is a Carpenter by profession and earning an amount of Rs.6,000/- per month. The appellant sustained permanent disability and is entitled for compensation, which he quantified at Rs.1,27,000/- 3. The 1[st] respondent was set ex-parte. The 2[nd] respondent filed a written statement, i _nter alia,_ admitting that the autorickshaw had a valid insurance policy. However, the 2[nd] respondent disputed the age, occupation and nature of injury sustained by the petitioner. 4. The appellant was examined as PW1 and Exts.A1 to A8 were marked through him in evidence. The 2[nd] respondent produced and marked Ext.B1 – copy of the insurance policy 5. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 2[nd] respondent to pay an amount of Rs.47,100/- with interest at the rate of 7% per _MACA No. 1860 of 2009_ _4_ annum from 21.11.2002 till the date of realization. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/petitioner is in appeal. 7. Heard the learned counsel for the appellant and the learned counsel appearing for the 2[nd] respondent. 8. The learned counsel for the appellant vehemently argued that the Tribunal has gone wrong in not accepting Ext.A8-Disability Certificate and not assessing the disability of the appellant. According to him, the Doctor who issued Ext.A8 has certified that the appellant has disability to the tune of 18%. The appellant was examined as PW1 and he proved Ext.A8 disability certificate. Nevertheless, the Tribunal rejected Ext.A8 on the ground that it was not proved by its author. Similarly, the quantum of compensation awarded by the Tribunal under various heads were meagre and not just compensation. 9. The learned counsel appearing for the 2[nd] respondent argued that as long as the appellant had not _MACA No. 1860 of 2009_ _5_ proved, Ext.A8 disability certificate through the Doctor who issued it, the same cannot be acted upon in view of the law laid down by the Honourable Supreme Court in **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)]. Therefore, there is no error in the findings of the Tribunal. Similarly, the appellant was only a Carpenter by profession and the Tribunal has rightly fixed his income at Rs.2,000/-. It was also pointed out that the accident was of the year 2002 and hence, the standard of living in the year 2002 has to be taken into account. 10. The questions that emerges for consideration in the appeal are (i) whether the non-acceptance of Ext.A8 disability certificate by the Tribunal was justifiable and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just _6_ _MACA No. 1860 of 2009_ compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 12. The bone of contention of the learned counsel appearing for the appellant was that the appellant had produced Ext.A8 disability certificate and had examined himself as PW1, whereby the disability of the appellant was proved. Therefore, the rejection of the said certificate by the Tribunal was unjustifiable and illegal. 13. The Honourable Supreme Court in **Rajkumar** (supra) has categorically held that mere production of a disability certificate is insufficient and that the Doctor who issued the certificate has to be examined, if not, the Tribunal can always direct the injured to be examined by a duly constituted medical board. The Tribunal should not _MACA No. 1860 of 2009_ _7_ mechanically apply the percentage of disability assessed by a Doctor, who is not examined before the Tribunal. 14. Undisputedly, the appellant had not examined the Doctor who issued Ext.A8 disability certificate. Similarly, the appellant did not avail the benefit of getting himself examined by a duly constituted medical board. In such circumstances and the law laid down in **Rajkumar** (supra), I do not find any error in the conclusion arrived at by the Tribunal, that the appellant has not proved his disability by the mere production of Ext.A8. Therefore, I uphold the findings of the Tribunal with regard to the non-proving of Ext.A8 certificate. 15. Coming to the next question regarding the quantum of compensation awarded by the Tribunal under the different heads. 16. The appellant had claimed to be a Carpenter by profession and earning Rs.6,000/- per month. However, he had not produced any documents to substantiate his alleged income. _MACA No. 1860 of 2009_ _8_ 17. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 18. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decision and considering that the appellant was 60 years of age, I am of the considered opinion that the appellant's notional income can safely be fixed at Rs.4,000/- per month. Hence, I re-fix the appellant's notional income at Rs.4,000/- per month. ## **Pain and sufferings** 19. It is proved by Ext.A5 Reference Card and Ext.A6 O.P.tickets that the appellant had undergone hospitalization for a period of 18 days. It is seen that he had sustained 'obliquely placed wound over the anterior medical aspect of the left elbow, compound dislocation of left elbow, brachial _MACA No. 1860 of 2009_ _9_ artery totally cut injury with brachialis muscles as totally severed multiple bodily injuries'. Therefore, the appellant had undergone severe pain for a period of 18 days while in hospital. The appellant had claimed an amount of Rs.20,000/towards pain and sufferings. However, the Tribunal has fixed the compensation under the head 'pain and sufferings' at Rs.12,000/-. Taking into consideration the fact that the appellant was in hospital for a period of 18 days and he had sustained serious injuries, I am of the firm opinion that the appellant is entitled for compensation under the head 'pain and sufferings' as claimed for in the claim petition at Rs.20,000/- instead of Rs.12,000/- awarded by the Tribunal. ## **Loss of earnings** 20. In view of the re-fixation of the notional income of the appellant at Rs.4,000/- per month and the fact that the Tribunal itself has found that the appellant had loss of income for a period of four months, the appellant is entitled for enhancement of compensation under the head 'loss of _MACA No. 1860 of 2009_ _10_ earnings' for a period of four months at Rs.4,000/- per month, i.e., a further amount of Rs.8,000/-. ## **- Bye stander expenses** 21. It is seen that the appellant was hospitalised for a period of 18 days. The Tribunal awarded only an amount of Rs.1,700/- as bye-stander expenses as Rs.94/- per day. Taking into account the fact the appellant was in hospital for a period of 18 days and that a reasonable amount has to be paid towards 'bye-stander expenses', which I fix at Rs.200/- per day. Accordingly, I re-fix the compensation under the said head at Rs.3,600/- instead of Rs.1,700/- awarded by the Tribunal. ## **Other heads of claim** 22. With respect to the compensation awarded under the various other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited _MACA No. 1860 of 2009_ _11_ decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|8,000/-|16,000/-| |2|Expense for transportation|1,000/-|1,000/-| |3|Expenses for extra nourishment|1,000/-|1,000/-| |4|Damages to clothing|500/-|500/-| |5|Expenses for treatment|4,900/-|4,900/-| |6|Expenses for bystander|1,700/-|3,600/-,| |7|Compensation for pain and<br>sufferings|12,000/-|20,000/-| |8|Compensation for loss of<br>amenities|8,000/-|8,000/-| |9|Compensation for disconfiture|10,000/-|10000| |||47,100/-|65,000/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.17,900/- (Rupees seventeen thousand nine hundred only) with interest at the rate of 7% per annum from 21.11.2002 on the enhanced compensation, from the date of petition till the date of _12_ _MACA No. 1860 of 2009_ payment by the 2[nd] respondent and proportionate cost. The 2[nd] respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The appellant would be at liberty to move the Tribunal for withdrawal of the deposited amount. **Sd/- C.S.DIAS,JUDGE** **dlK 22.06.2021**