B. Rama Variyar v. V.B. Rajan, Nandanam, and The New India Assurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 23[RD] DAY OF JUNE 2022 / 2ND ASHADHA, 1944 ``` ## **`MACA NO. 1110 OF 2013`** ``` AGAINST THE AWARD DATED 24.09.2011 IN OP(MV) 2857/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR ``` ## **`APPELLANT:`** ``` B. RAMA VARIYAR S/O PAPPU VARASYAR, RESIDING AT BRAHMAKULAM VARIYAM HOUSE, P.O. THAIKKAD, GURUVAYOOR, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS:`** ``` 1V.B. RAJAN RESIDING AT VADAKKEDATH PUTHENVEETTIL HOUSE, CHEMBAMKANDAM, P.O. PONNUKKARA, THRISSUR-680 014. 2NANDANAN S/O SANKARAN, RESIDING AT CHORROTTIL HOUSE, ELAMTHURUTHY, MARATHAKKARA, THRISSUR-680 320. ``` - `3 THE NEW INDIA ASSURANCE COMPANY LIMITED KOLLANNUR BUILDING, PALACE ROAD, THRISSUR-680 020.` ``` BY ADV. SRI.JOY JOSEPH (MANAYATHU) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No. 1110 OF 2013 2 ## **A. BADHARUDEEN, J. =========================== MACA No. 1110 OF 2013 ============================ Dated this the 23[rd] day of June, 2022** ## **JUDGMENT** This appeal arises out of the award dated 24.09.2011 in O.P.(MV) No.2857/2005 on the files of the Motor Accidents Claims Tribunal, Thrissur. The petitioner is the appellant and respondents before the Tribunal are the respondents herein. 2. In this matter the appellant who sustained injuries as a result of a motor accident occurred on 16.10.2004, while he was travelling on a motor cycle bearing registration No. KL-8/D-8868, had approached the Tribunal and lodged claim under Section 166 of the M.V.Act on the allegation that he had sustained injuries when the motorcycle was hit down by a tempo bearing registration No.KL-8/T-1903 came from behind driven by the second respondent, in a rash and negligent manner. MACA No. 1110 OF 2013 3 3. The appellant claimed Rs.1,50,000/- from the respondents 1 to 3. 4. Respondents 1 and 2 were declared as ex parte by the Tribunal. 5. The third respondent Insurance Company filed written statement. Negligence as well as the accident were disputed while admitting the policy of the tempo involved in the accident. Quantum of compensation also objected. 6. The Tribunal ventured the matter and recorded evidence. Exts.A1 to A104 were marked on the side of the appellant and Ext.B1 were marked on the side of the insurer. 7. The Tribunal evaluated the evidence and finally granted Rs.93,440/- as compensation along with interest at the rate of 8% per annum. 8. Now the quantum of compensation is under challenge in this appeal. The learned counsel for the appellant argued that the Tribunal fixed monthly income at Rs.3,000/- as against his claim of Rs.3,500/-. According to the learned counsel for the appellant, since the appellant who MACA No. 1110 OF 2013 4 was aged 56 years at the time of accident, claimed Rs.3,500/as monthly income being an agriculturist, therefore the said income as such, should have been accepted by the Tribunal. 9. The accident is of the year 2004. Therefore, there is no reason to reduce the monthly income claimed by the appellant since the monthly income fixed in relation to an accident of the year 2004, as per the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** , is higher than Rs.3,500/-. Therefore, monthly income of the appellant is fixed as Rs.3,500/- for the purpose of calculating loss of earning and disability income in this case. 10. It is argued by the learned counsel for the appellant further that even though the appellant sustained fracture pelvis and he underwent treatment for ten days initially and two days thereafter, the Tribunal reduced disability assessed as per Ext.A11 to 6% instead of 13% assessed as per Ext.A11 for non-examination of the author of Ext.A11. It is submitted by the learned counsel for the appellant further that in view of MACA No. 1110 OF 2013 5 the injuries and shortening noted in the Ext.A11, the disability as such is liable to be accepted or some more addition is absolutely necessary. 11. The learned Counsel for the insurance company opposed increase of the percentage of disability, pointing out the fact that the treatment records do not justify the disability certificate Ext.A11, issued by the doctor who had not treated the appellant at any point of time. 12. In this case, Ext.A5 is the copy of the wound certificate issued from Aswini Hospital, Thrissur. A7 and A8 are discharge summaries issued from Aswini Hospital. The same would show that the appellant was treated since he sustained comminuted fracture left illiac wing. As per Ext.A8 discharge summary given by Dr.Madhav, also fracture of pelvis with parietal wall haematoma and perirenal haemotama were the diagnosis. It is noticed that as per Ext.A11, Dr.Jacob P., Assistant Professor, Department of Orthopedics, Medical College, Thrissur issued certificate showing 13% whole body permanent disability to the MACA No. 1110 OF 2013 6 appellant on the finding that there was malunion fracture of left illiac bone. The Tribunal not accepted the disability as such since the author of the Ext.A11 was not examined to prove the same. 13. On appraisal of the evidence available, it is noted that the treatment records do not show any malunion. However, malunion was found in the disability certificate. But the treatments records established the comminuted fracture of pelvis and treatment thereon. In view of the matter, it is necessary in the interest of justice to increase the percentage of disability from 6% to 10%, Accordingly, disability income also needs to be calculated based on 10% disability apart from considering sufficiency of the compensation granted under other heads. 14. It is submitted that the learned counsel for the appellant that the loss of earnings granted by the Tribunal is less, since the same is for a period of 4 months. Considering the injuries and treatment, I am inclined to increase the loss of money for a period of 5 months at the rate of Rs.3,500/- MACA No. 1110 OF 2013 7 i.e.3500 x 5=17,500. Out of which, 12,000/- was granted by the Tribunal. Accordingly, Rs.5,500/- (17,500-12,000) more is granted towards loss of earnings.. 15. Since multiplier applied by the Tribunal is not disputed, taking the monthly income at Rs.3,500/-, the disability income also re-calculated as under: 3,500 x 12 x 9x 10%= 37,800/- Out of which, Rs.19,440/- was granted by the Tribunal. Thus, **Rs.18,360/-** (37800-19440) more is granted under the head ‘disability income’. 16. Apart from that, learned counsel for the appellant pressed for granting increase under the head loss of amenities since the Tribunal granted Rs.8,000/- only under the said head. 17. Taking note of the injuries and treatment as already discussed, I am inclined to grant Rs.5000/- more under the loss of amenities and also Rs.5,000 under the head pain and sufferings. Rs.3000/- more is granted towards extra nourishment. MACA No. 1110 OF 2013 8 In the result, this appeal stands allowed. It is held that the appellant is entitled to get Rs.1,30,300/- as compensation. Out of which, Rs.93,440/- was granted by the Tribunal and the balance amount of **Rs.36,860/-** (Rupees Thirty Six Thousand and Eight Hundred and Sixty only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, excluding interest for 436 days, which was specifically disallowed by this Court, while condoning the delay, payable by the Insurance Company, from the date of petition till the date of deposit or realisation. The Insurance Company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same. **Sd/-** **A. BADHARUDEEN JUDGE** nk