Babukuttan v. Yamuna S., Rajesh D. and Oriental Insurance Co. Ltd.

MACA.No.1436/2013 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945_ ## _MACA NO. 1436 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 1134/2007 OF MOTOR_ _ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA_ ## _APPELLANT/PETITIONER:_ _BABUKUTTAN, AGED 47 YEARS, NEDIYANPOLA HOUSE, SOUTH ARYAD, AVALOOKUNNU P.O., ALAPPUZHA DISTRICT._ _BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA_ ## _RESPONDENTS/RESPONDENTS:_ - _1 YAMUNA.S., AMBADU, ERIEKAVU P.O., KUMARAPURAM PANCHAYATH, WARD NO.XI, KAYAMKULAM, ALAPPUZHA._ _2 RAJESH D., S/O. P.DAMODHARAN, KANNELAPARAMBIL HOUSE, NORTH OF PULIKKI JUNCTION KARTHIKAPPALLY PANCHAYATH, WARD NO.1, MAHADEVIKADU P.O., KARTHIKAPPALLY._ - _3 THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, KALLAN ROAD, MULLACKAL, ALAPPUZHA._ _BY ADV.SRI.A.R.GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1436/2013 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).No.1134 of 2007 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 21.02.2007. 2. According to the appellant, the accident occurred when he was knocked down by a mini lorry bearing Registration No.KL-02/J-7666, driven by the 2[nd] respondent in a rash and negligent manner. The said vehicle was owned by the 3[rd] respondent. The appellant was aged 41 years and was working as a coir mat weaver with a monthly income of Rs.6,200/-. Consequent to the injuries, he suffered physical disablement also. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent filed a written statement admitting the existence of policy for the mini lorry. However, they contended that the negligence was on the part of the 2[nd] respondent. They disputed the quantum of compensation as well. MACA.No.1436/2013 3 4. The evidence in this case consists of oral testimony of PW1 and documentary evidence of Exts.A1 to A19 were marked. The disability certificate issued by the Medical Board was marked as Ext.C1. 5. After the trial, the Tribunal concluded that the accident occurred due to negligence on the part of the driver of the mini lorry and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was determined as Rs.3,83,326/- and the 3[rd] respondent was directed to deposit the said amount with interest at the rate of 7.5% from the date of petition till realization with proportionate costs. This appeal is submitted in such circumstances, being dissatisfied with the quantum of compensation. 6. Heard Sri.A.T.Anil kumar, learned counsel for the appellant and Sri.A.R.George, learned counsel for the 3[rd] respondent. 7. The first contention raised by the learned counsel for the appellant is with respect to the amount fixed by the Tribunal as compensation for disability. It was contended that, while assessing such compensation, the Tribunal accepted only MACA.No.1436/2013 4 Rs.4,500/- as the monthly income and percentage of disability as 20%. According to the appellant, both the said criteria were on the lower side and require re-consideration. As regards the monthly income, it was pointed out by the learned counsel for the appellant that he was a coir mat weaver worker with a monthly income of Rs.6,200/-. To prove the same, the learned counsel placed reliance upon Ext.A10, copy of passbook of Kerala Coir Workers Welfare Board, which would indicate that he used to make payment to the Welfare Board as contribution. Even though the said document would show that the appellant was a coir worker registered with the Kerala Coir Workers Welfare Board, the monthly income of the appellant is not discernible therefrom. Since there is no evidence to substantiate the monthly income, same has to be fixed on the basis of the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd . [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735].** When doing the said exercise, as the accident occurred in the year 2007, the monthly income can be fixed as Rs.6,000/-, MACA.No.1436/2013 5 which is close to the claim put forward by the appellant in this regard. Therefore, the said amount is accepted. 8. As regards the percentage of disability, two certificates were placed on record, i.e, Ext.A9 and Ext.C1. Ext.A9 was issued by the Medical Board, General Hospital, Alappuzha, wherein the percentage of disability was 40%. However, Ext.C1 was issued by the Standing Disability Assessment Board, wherein the percentage of disability were certified as 24%. PW4, the doctor who signed Ext.C1 certificate was also asserted while being examined that the appellant suffered disability of 24%. In Ext.C1 certificate, a detailed description of the injuries sustained by the appellant and the consequence of the same are mentioned. The injuries sustained by the appellant are noted therein as follows: “CT Head-extensive SAH, Interhemispheric SDH, contusion in bilateral basifrontal region, frontal bone fracture, Rpt CT:- Partial resolution of SAH and interhemispheric SDH and frontal contusion” The disability noted are as follows: “1. B/L anosmia..3% 2. Running around, easily getting angry, forget fullness...9% MACA.No.1436/2013 6 3. Carries risk of post-traumatic epilepsy not on Eptoin...5% 4. Cosmetic deformity of depressed frontal bone fracture...7%.” 9. On considering the evidence of PW1 coupled with Ext.C1, I find that the disability of 24% as certified therein is proven and hence, the same could be accepted for assessing the compensation. As the deceased was aged 41 years at the time of the accident, the multiplier applicable was 14. Accordingly, while re-assessing the compensation for disability with the above criteria, the amount would come to Rs.2,41,920/- (Rs.6,000 X 12 X 14 X 24/100). 10. The Tribunal awarded an amount of Rs.1,51,200/towards compensation for loss of earning power, and a further sum of Rs.50,000/- was granted towards compensation for permanent disability. In such circumstances, I am of the view that the compensation awarded under both heads can be adjusted towards the compensation now determined for disability. Accordingly, the additional amount would come to **Rs.40,720/-** . MACA.No.1436/2013 7 11. The appellant sustained very serious injuries, which are already extracted above and the same include neurological disabilities as well. He had undergone inpatient treatment for a period of one month. When all the aforesaid aspects are taken into consideration, I find that the compensation awarded by the Tribunal towards pain and suffering and loss of amenities, which are Rs.10,000/- and Rs.25,000/- respectively, are on the lower side. Considering the facts and circumstances of the case, I deem it appropriate to grant a further sum of **Rs.25,000/-** each under both heads. 12. Consequent to the revision of monthly income, the appellant would be entitled to additional compensation under the head of loss of earnings as well. In this regard, it is to be noted that the Tribunal awarded compensation for a period of six months by taking monthly income as Rs.4,500/-. The period for which the compensation is granted appears to be reasonable. Therefore, a further sum of **Rs.9,000/-** is awarded, consequent to the revision of monthly income. 13. Accordingly, the total compensation is determined as Rs. 99,720/- (Rs.40,720 + Rs.25,000/- + Rs.25,000 + Rs.9,000/-) and the said figure is rounded to **Rs.1,00,000/-** . MACA.No.1436/2013 8 In the result, this appeal is allowed, and the award dated 20.12.2012 in OP(MV)No.1134/2007 passed by the Motor Accidents Claims Tribunal, Alappuzha is hereby modified by granting an additional amount of Rs **.1,00,000/-** (Rupees One Lakh only). The said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of the judgment. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. This appeal is allowed accordingly. Sd/- ## **ZIYAD RAHMAN A.A. JUDGE** DG/LU/8.2.24