Babu v. Prakash, Jayakumar and United Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 10TH DAY OF OCTOBER 2017 / 18TH ASWINA, 1939 MACA.No. 1159 of 2013 OPMV 1068/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA APPELLANT(S)/PETITIONER BABU SANDHYA NIVAS, KAPPIL KIZHAKKUM MURI, KRISHNAPURAM BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN RESPONDENT(S)/RESPONDENTS: ## 1. PRAKASH MULLOLIL VEEDU, VALLIKUNNAM MURI, VALLIKUNNAM PANCHAYAT, VALLIKUNNAM - 690 501 ## 2. JAYAKUMAR GOPI SADANAM, MUTHUKATTUKARA, NOORANAD -690 504. 3. UNITED INSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, 3RD PARTY CLAIM CELL, ERNAKULAM - 682 011. R3 BY ADV. SRI.AGI JOSEPH BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B. SUDHEENDRA KUMAR,JJ.** ........................................................................ M.A.C.A. No. 1159 of 2013 ......................................................................... Dated this the 10[th] day of October, 2017 ## **JUDGMENT** ## **Ravikumar,J.** This appeal seeking enhancement of the quantum of compensation is filed by the petitioner in O.P. (MV) No. 1068 of 2003 on the files of the Motor Accidents Claims Tribunal, Mavelikkara. He sustained injuries in the motor vehicle accident that occurred on 17-09-2002. He was a passenger in the autorickshaw bearing Registration No. KL-4E/4998 . During its course of journey through the Oachira-Choonad public road, at the place of accident, it turned turtle. The appellant sustained serious injuries. -: 2 :- M.A.C.A. No. 1159 of 2013 He was initially taken to Parabrahma Specialty Hospital, Oachira, and thereafter he was shifted to Medical College Hospital, Alappuzha. He remained there as an inpatient for a period of 46 days. For the purpose of removing the implant, he remained in the hospital for 5 more days. It is in the said circumstances that he filed the aforesaid claim petition under Section 166 of the Motor Vehicles Act seeking a compensation of Rs. 2,25,000/-. As per the impugned award, the Tribunal had granted an amount of Rs. 73,600/- as compensation with interest at the rate of 7.5% per annum from the date of petition till realisation along with a cost of Rs. 1000/-. 2. We have heard the learned counsel for the appellant as also the learned counsel appearing for the 3[rd] respondent - Insurance Company. -: 3 :- M.A.C.A. No. 1159 of 2013 3. The accident as also the cause of accident are not in dispute. At the same time, it is evident from the impugned judgment itself that the third respondent Insurance Company had disputed its liability to indemnify the insured owner of the vehicle, the 2[nd] respondent, on the ground that the first respondent who was driving the autorickshaw was not having a valid driving license at the time of the accident. Virtually, the Tribunal had upheld the said contention of the 3[rd] respondent and on that the Insurance Company is not liable to indemnify the insured owner. However, the Insurance Company was directed to satisfy the award with liberty to recover the amount from respondents 1 and 2. Though such a liberty was granted to the 3[rd] respondent to recover the amount after satisfying the award from respondents 1 and 2 and notice in this -: 4 :- M.A.C.A. No. 1159 of 2013 proceedings was served on them, the first and second respondents have chosen not to enter appearance and contest the matter. Needless to say that they have not taken in this In such up cross-objection appeal. circumstances, we do not propose to interfere with the liberty granted to the 3[rd] respondent by the Tribunal to recover the amount of compensation after satisfying the award. 4. Now, we will proceed to consider the question as to whether the appellant is entitled to get enhanced compensation in this appeal. The core contention of the appellant is that the Tribunal had erroneously estimated the monthly income and wrongly identified the multiplier and those error resulted in denial of 'just compensation'. 5. The case of the appellant was that he was running -: 5 :- M.A.C.A. No. 1159 of 2013 a hotel and was earning Rs. 6000/- per month. It is true that he has also mounted the box to give evidence as PW1. At the same time, there is nothing on record to show that he had been running a hotel, as claimed. In the absence of any cogent evidence to establish that he was running a hotel, the Tribunal had fixed the monthly income of the appellant notionally. We do not, in the said circumstances, find any reason to find fault with the Tribunal in fixing the monthly income notionally. But at the same time, the question is whether the fixation of the monthly income as Rs. 3000/- notionally invites interference. We are of the view that in the circusmtances obtained in the caswe, especially in view of the absence of evidence of occupation and income, the decisionof the Apex Court in **Ramachandrappa v. Manager,royal** M.A.C.A. No. 1159 of 2013 -: 6 :- **Sundaram Aliance Insurance Company - [AIR 2011 SC 2951]** can act as guidance in the matter of fixationof monthly income. In that decision, in respect of a coolie who met with an accident in 2004, the Hon'ble Apex Court had fixed the monthly income as Rs. 4500/-. The accident in question had occurred prior to the accident involved in that case. Taking into account all such aspects, we are inclined to fix the monthly income of the appellant, for calculation purpose, as Rs. 3500/-. 6. We have already noted that the appellant has grievance regarding the adoption of multiplier by the Tribunal. The Tribunal had fixed the multiplier as '8' treating that the appellant was belonging to the age group of 56-60 at the time of the accident. . In the claim petition, it is averred that the appellant was aged 53 years at the time -: 7 :- M.A.C.A. No. 1159 of 2013 of the accident. In the discharge card, the age of the appellant was recorded as 50. In the absence of any contra evidence there is substance in the grievance regarding adoption of multiplier. We are of the view that the age of the appellant at the time of the accident ought to have been taken as 53 and in such circumstances, the proper multiplier applicable is '11'. The learned counsel contended that the Tribunal had gone wrong in assessing the permanent disability for calculation purpose. According to the appellant, the Tribunal had ignored Ext. A10 disability certificate. Going by Ext. A10, the extent of disability of the appellant is 17%. Admittedly, Ext. A10 is not a certificate issued by a duly constituted by a Medical Board and in fact, it was issued by one Dr. Salim M.P., then attached to the Medical College Hospital, -: 8 :- M.A.C.A. No. 1159 of 2013 Alappuzha. The doctor who treated him and issued the certificate was not examined before the Tribunal. In such circumstances and in the light of the Apex court in **Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC],** the said certificate ought not have been acted upon. But at the same time, it is evident from paragraph 19 of the impugned judgment that the Tribunal had had the opportunity to see the appellant and perceive his physical state of affairs. The Tribunal took the extent of disability of the appellant for calculation purpose as 10%. In such circumstances, we do not propose to interfere with the assessment of permanent disability made by the Tribunal. 7. In the result, a re-assessment of the quantum of compensation for permanent disability is to be made by substituting the multiplicand as also the multiplier. On -: 9 :- M.A.C.A. No. 1159 of 2013 such re-assessment, the amount payable under that head will be Rs. 46,200/- (3500x12x11x10/100). The Tribunal had granted an amount of Rs. 28,800/- under that head. On subtracting the said amount, the appellant will be entitled to an amount of Rs. 17,400/- additionally. It is granted. The Tribunal had fixed the period of loss of earning as three months. Ext. A5 would reveal that the appellant had sustained compound fracture and dislocation of right ankle. In such circumstances, we do not find any reason to interfere with the fixation of the period for the aforesaid purpose. At the same time, in view of the re-fixation of the monthly income, the appellant is entitled to get proportionate enhancement under the said count. Consequently, he is entitled to get Rs. 1500/- more towards compensation for loss of earning. Towards -: 10 :- M.A.C.A. No. 1159 of 2013 bystander's expenses, the appellant was granted an amount of Rs. 5100/-, evidently, at the rate of Rs.100 per day. Taking into account the economic situation prevalent at the time of the accident, we are of the view that the rate therefor, ought to have been Rs. 150/- per day. Consequently, the appellant is entitled to Rs. 2,550/additionally under that head. Towards extra nourishment, the Tribunal had granted an amount of Rs. 2000/-. We are of the view that for the period of hospitalisation, the appellant is entitled to get reimbursement on that count at the rate of Rs. 100/- per day. Consequently, an amount of Rs.3100/- more is granted towards expenses for extra nourishment. Towards damage to clothing, no amount was granted by the Tribunal, though the appellant had claimed an amount of Rs. 1000/-. We are inclined to grant -: 11 :- ## M.A.C.A. No. 1159 of 2013 an amount of Rs. 1000/- towards damage to clothing. It is granted. Towards loss of amenities, the Tribunal had granted an amount of Rs. 5000/-. Taking into account the nature of the injuries revealed from Ext. A5 wound certificate and also taking into account the extent of disability incurred by the appellant due to the injuries suffered in the accident, we are of the view that an amount of Rs. 10,000/- more can be granted towards compensation for loss of amenities. In the light of the assessment/re-assessment, the appellant is entitled to get an additional compensation of Rs. 35,550/-. It is granted. The said additional compensation of Rs. 35,550/- will carry interest at the rate of 8% per annum from the date of petition till realisation. 8. Since we have maintained the finding of the -: 12 :- M.A.C.A. No. 1159 of 2013 Tribunal that the 3[rd] respondent is entitled to recover the amount paid to satisfy the award, the 3[rd] respondent is directed to deposit the additional compensation of Rs. 35,550/- (Rupees thirty five thousand five hundred and fifty only) along with interest thereon at the aforesaid rate , within a period of one month from the date of receipt of a copy of this judgment. Needless to say that after effecting payment, the third respondent would be entitled to recover the amount from respondents 1 and 2. In the result, this appeal stands disposed of as above. There will be no order as to costs. **Sd/-C.T. RAVIKUMAR, Judge** **Sd/-B. SUDHEENDRA KUMAR, Judge** **ani/10/10** ## **/true copy/** **P.S. To Judge**