B. Satheesan v. Anup Justin, Oriental Insurance Company Ltd., S. Sree Devi, United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 MACA NO. 2566 OF 2009** **AGAINST THE AWARD DATED 20.11.2008 IN OPMV 1475/2002 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** B.SATHEESAN,S/O BALAKRISHNAN, AGED 45 YEARS, MEKKE OORADA VEEDU, NEERAMANKARA, KAIMANAM.P.O. THIRUVANANTHAPURAM. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL ## **RESPONDENTS/RESPONDENTS:** 1 ANUP JUSTIN, CI/3 R.T.T.C. KAIMANAM,THIRUVANANTHAPURAM. (DELETED)* 2 THE MANAGER THE ORIENTAL INSURANCE COMPANY LTD. RAMAKRISHNA BUILDING,, ARISTO JUNCTION, THIRUVANANTHAPURAM. 3 S.SREEDEVI VIJAYA BHAVAN THIRUVANANTHAPURAM-1. (DELETED)* 4 THE MANAGER UNITED INDIA INSURANCE CO. LTD., C.W.C. BUILDING 3RD FLOOR, L.M.S., COMPOUND PLALAYAM, THIRUVANANTHAPURAM. * RESPONDENTS 1 AND 3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 27.09.2021 IN IA NO.1/2021. BY ADVS. SRI.A.R.GEORGE SRI.A.A.MOHAMMED NAZIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No2566-2009 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1475/2002 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The original respondents in the appeal were the respondents before the Tribunal. At the instance of the appellant, the respondents 1 and 3 have been deleted from the party array. Therefore, for the sake of convenience, the parties are referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 18.04.2002. It was his case that, on the aforesaid date, while he was riding his motorcycle bearing registration No.KL-01/3762 from Kaimanam to 3 MACA No2566-2009 Killippalam, a Maruti van bearing registration No. KL -01/U 7303, driven and owned by the first respondent in a rash and negligent manner, hit the motorcycle of the petitioner. The petitioner sustained multiple injuries, including a fracture. He was treated as an inpatient for a period of ten days at the P.R.S.Hospital, Thiruvananthapuram. The petitioner was a daily wager at the T.VS.Neeramankara and was earning a monthly income of Rs. 5,500/-. The van was insured with the second respondent. The motorcycle was owned by the third respondent and insured with the 4[th] respondent. Hence the petitioner claimed a compensation of Rs.2,05,500/-, from the respondents, which claim was limited to Rs.2,00,000/- 3. The pillion rider on the motorcycle also filed O.P. (M.V) No.1552/2002 before the same Tribunal, against the respondents, seeking compensation. 4. The first respondent had filed separate written 4 MACA No2566-2009 statements contending that the accident occurred due to the negligence of the petitioner. Therefore, the first respondent stated that he was not liable to pay any amount as compensation. 5. The second respondent had also filed separate written statements refuting the allegations in the claim petitions. The second respondent also contended that the accident occurred due to the negligence of the petitioner. However, the second respondent had admitted that the motorcycle had a valid insurance coverage. 6. The fourth respondent had filed written statements, inter alia, contending that it was a unnecessary party to the proceedings, especially since the accident occurred due to the negligence of the first respondent. 7. The Tribunal consolidated and jointly tried the two claim petitions. 8. The doctor who issued the disability certificate and 5 MACA No2566-2009 another witness were examined as Pws 1 and 2. The petitioners produced and marked Exhibits A1 to A8 in evidence. The second respondent produced the insurance policy, which was marked as Exhibit B1. 9. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the petitioner to recover from the second respondent an amount of Rs.45,000/- with interest and cost. 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 11. Heard Sri. R.T. Pradeep, the learned counsel appearing for the appellant/petitioner and Sri.A.R.George the learned counsel appearing for the second respondent/insurer. 12. The point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 6 MACA No2566-2009 ## **Negligence and liability** 13. The Tribunal after appreciating Exhibit A2 final report in Crime No.706/2002 laid by the City Traffic Police, Thiruvananthapuram before the Judicial First Class Magistrate Court-I, Thiruvananthapuram and Exhibit A8 scene mahazar r/w the oral testimony of PW2, and the fact that the respondents had not let in evidence to controvert the materials on record, arrived at the conclusion that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the insurer of the van. Accordingly, the Tribunal has found that the second respondent is to indemnify the liability of the first respondent arising out of the accident. 14. Admittedly, the insurer has not challenged the said finding, and the present appeal is confined to the quantum of compensation awarded by the Tribunal. Therefore, I confirm the finding of negligence found 7 MACA No2566-2009 against the first respondent and hold that the second respondent is to indemnify the liability of the first respondent. ## **Income** 15. The appellant had claimed that he was a daily wager with a firm named T.V.S. at Neeramankara and was earning monthly income of Rs.5500/-. For the want of material, the Tribunal fixed the notional monthly income of the petitioner at Rs.2000/-. 16. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 17. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2002, I re-fix the notional monthly income of the appellant at Rs.3500/-. 8 MACA No2566-2009 ## **Loss of earnings** 18. The appellant had produced Exhibit A1 disability certificate, which was proved through PW1, who has certified that the petitioner has a temporary disability of 100% for a period of three months. The Tribunal has fixed the period for only two months. 19. In view of the uncontroverted oral testimony of the PW1 r/w Exhibit A1, I hold that the petitioner was incapacitated for three months. In view of the re-fixation of the notional monthly income of the petitioner at Rs.3500/-, I award him an amount of Rs.10,500/- towards ‘loss of earnings’, instead of Rs.4000/- awarded by the Tribunal. ## **Disability** 20. As already observed above, the petitioner had produced Exhibit A1 disability certificate which is proved through PW1. However, the Tribunal for the reason that 9 MACA No2566-2009 PW1 was not the Doctor who treated the petitioner, rejected Exhibit A1. 21. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that it is not necessary that the Doctor who treated the injured claimant has to issue the disability certificate. It is also held that in case the Tribunal is not satisfied with the disability certificate produced before it, it is the duty of the Tribunal to refer the injured-claimant to a duly constituted Medical Board. It is further held that what needs to be looked into a injury claim is the functional disability of the injured-claimant and that if the disability certificate is produced and marked in evidence with the consent of the parties, the same has to be taken on its face value. 22. In the instant case, the petitioner had produced Exhibit A1 which was proved through PW1. The respondents have not objected to the marking or 10 MACA No2566-2009 accepting of Exhibit A1 in evidence. The Tribunal has also not entered that Exhibit A1 is any finding dissatisfactory. Also, the Tribunal has not referred the petitioner to a duly constituted Medical Board. Instead, the Tribunal has perfunctorily rejected Exhibit A1 on the sole ground that it was issued by the Doctor, who had not treated the petitioner. The course and procedure adopted by the Tribunal is contrary to the law laid down by the Honourable Supreme Court in **Rajkumar’s** case(supra). In the above legal and factual matrix, I accept Exhibit A1 on its face value. 23. The petitioner was a daily wager. Going by the testimony of PW1 read with Exhibit A1, the petitioner has waisting of 1cm of left thigh and left calf muscle and has difficulty in walking, carrying weights and climbing stairs. Therefore, following the principles in **Raj Kumar’s case** (supra) I fix the petitioner's functional disability at 10%. 11 MACA No2566-2009 ## **Multiplier** 24. The petitioner was aged 38 years as averred in the claim petition. In view of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘15’. ## **Loss due to disability** 25. Taking into account the above mentioned factors, namely, the notional monthly income of the petitioner at Rs.3500/-, his functional disability at 10% and the multiplier at 15, I award the petitioner an amount of Rs.63,000/- towards ‘loss due to disability’. ## **- By stander expenses** 26. It is proved and established that the petitioner was treated as an inpatient for a period of ten days. He was also re-admitted for one day for the purpose of removing the implants. Taking into account the fact that the accident occurred in the year 2002, I award the 12 MACA No2566-2009 petitioner an amount of Rs.250/- per day for a period of 11 days towards by-stander expenses, which works out to Rs.2750/-, instead of Rs.1000/- awarded by the Tribunal. ## **Medical Expenses** 27. The appellant had produced Exhibit A7 statement with medical bills to prove that he had incurred an amount of Rs.27,239/- for his medical treatment at the P.R.S.Hospital, Thiruvananthapuram. 28. The Tribunal on the findings that the petitioner had contributed to the accident and had suppressed the initial treatment records, reduced Rs.17,239/- from the total treatment expenses. The said finding is patently erroneous and self contradictory. Firstly, the Tribunal itself has found that it was the first respondent who was negligent in causing the accident. There is no finding attributing contributory negligence on the petitioner. Similarly, it is no one’s case that the petitioner had suppressed the material facts. From where the Tribunal 13 MACA No2566-2009 has gathered the information is surprising. Therefore, I set aside the above findings and hold that the petitioner is entitled to the balance amount of Rs.17,239/- expended for his medical treatment. 29. With respect to the compensation awarded under the heads ‘transportation expenses, ‘extra nourishment’, ‘damage to clothing’ , ‘pain and sufferings’, and ‘loss of amenities’, I find that the Tribunal has awarded reasonable and just compensation. 30. On a re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. **==> picture [409 x 109] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount Amounts<br>No awarded (in modified and<br>rupees) recalculated<br>by this Court<br>1 Loss of earnings 4000 10500<br>2 Transportation 750 750<br>**----- End of picture text -----**<br> 14 MACA No2566-2009 **==> picture [409 x 220] intentionally omitted <==** **----- Start of picture text -----**<br> 3 Clothing 250 250<br>4 By stander 1000 2750<br>expenses<br>5 Medical expenses 10000 27239<br>6 Extra nourishment 2000 2000<br>7 Pain and sufferings 12000 12000<br>8 Loss of amenities 15000 15000<br>9 Loss due to 0 63000<br>disability<br>Total 45000 133489<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.88,489/- rounded off Rs.88,500/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, after deducting interest for a period of 189 days i.e the period of delay in filing the appeal and as ordered by this Court on 16.11.2019 in C.M.Application No. 3028/2009, and a cost of Rs.7500/-. The second respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified 15 MACA No2566-2009 copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm01/02/2022