Balakrishnan @ Balan v. T.S. Ramanathan and Others and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943** **MACA NO. 1881 OF 2009** **AGAINST THE AWARD DATED 04.03.2009 IN OP(MV)NO.429/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER:** **BALAKRISHNAN @ BALAN, S/O. LATE KRISHNAN, MUNDOLI HOUSE, THEEVANDI COLONY, NARAYANAMANGALAM, PULLUT, THRISSUR DIST.** **BY ADV SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 T.S.RAMANATHAN AND OTHERS, P.O. PORATHISSERY, IRINJALAKUDA, THRISSUR DISTRICT.** - **2 SALIM SALI, S/O. KARAYIL KOCHUMUHAMMED, NEAR KARUVANNOOR CHERIYA PALAM, ARATTUPUZHA, THRISSUR DISTRICT.** - **3 NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, IRINJALAKKUDA.** **BY ADV SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1881/2009 -:2:- Dated this the 9[th] day of August, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.429/2005 on the file of the Motor Accidents Claims Tribunal,Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: On 06.11.2003, while the appellant was walking along the extreme side of the Kodungallur-Thrissur road, when he reached the Naranayamangalam Junction, a bus bearing registration No.KL-8/A 9252(bus) driven by the second respondent in a rash and negligent manner, hit a car which was going in front of the bus. Due to the impact, second respondent lost control of the bus and hit the appellant. The appellant sustained serious injuries and was taken to the Modern Hospital, Kodungallur and, M.A.C.A.No.1881/2009 -:3:- thereafter, to the Medical College Hospital, Thrissur, where he was treated as an inpatient for a period of 15 days. The appellant had to undergo severe pain and sufferings during the period of treatment. The appellant was a loading and unloading worker and earning a monthly income of Rs.6,000/-. The bus was owned by the first respondent and insured with the third respondent. The appellant claimed a total compensation of Rs.2,75,500/- from the respondents. 3. The first respondent did not contest the proceedings and was set _ex-parte._ Although, the second respondent entered appearance, he did not file any written statement. 4. The third respondent filed a written statement admitting that the bus had a valid insurance policy. However, the age, income and occupation of the appellant was disputed. 5. The legal representatives of 'Subramanian', who sustained fatal injuries in the same accident, had M.A.C.A.No.1881/2009 -:4:- also filed O.P.(MV)No.498/2005 before the same Tribunal. The Tribunal consolidated and jointly tried the original petitions. 6. The petitioners in the two original petitions produced and marked Exts.A1 to A10 in evidence. The third respondent produced Ext.B1 insurance certificate and marked it in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petitions by permitting the appellant to realise an amount of Rs.1,13,800/- with interest and proportionate costs from the third respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/petitioner is in appeal. 9. Heard; Sri. P.V. Chandra Mohan, the learned counsel for the appellant/petitioner and Smt.Sarah Salvy, the learned counsel appearing for the third respondent/insurer. M.A.C.A.No.1881/2009 -:5:- 10. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. Ext.A2 charge-sheet filed by the Kodungallur Police in Crime No.705/2003 clearly proves that the accident occurred solely on account of the negligence of the second respondent, who drove the bus. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the bus. Therefore, it is the third respondent who is to indemnify the second respondent of his liability to pay compensation. 12. The appellant had claimed that he was a loading and unloading worker and earning a monthly income of Rs.6,000/-. The Tribunal fixed the notional income of the appellant at Rs.2,000/- per month. 13. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ M.A.C.A.No.1881/2009 -:6:- [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 14. Following the ratio in the afore-cited decision and considering the fact that the accident occurred in the year 2003, I re-fix the notional income of the appellant at Rs.4,000/- per month. ## **Loss of earnings** 15. After appreciating the pleadings and materials on record, the Tribunal found that the appellant was indisposed for a period of five months, which finding I accept and confirm. 16. In view of the re-fixation of the notional income of the appellant at Rs.4,000/- per month, I re-fix the compensation for 'loss of earnings' at Rs.20,000/, instead of Rs.10,000/- awarded by the Tribunal. M.A.C.A.No.1881/2009 -:7:- ## **Loss due to disability** 17. The appellant had produced Ext.A6 disability certificate to prove that he had suffered permanent disability on account of the accident. However, the appellant had not examined the Doctor, who issued Ext.A6. Nevertheless, the Tribunal after seeing the appellant and finding that the Doctor had certified the split up disability at 38%, fixed the whole body disability of the appellant at 20%. 18. The learned counsel appearing for the appellant submits that the Tribunal ought to have accepted the disability assessed in Ext.A6 at 38% instead of scaling it down to 20%. 19. In _**Rajkumar v. Ajayakumar**_ [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that in order to prove disability, the Doctor who issued the certificate has to be examined or the disability of the injured has to be assessed by a duly constituted Medical Board. M.A.C.A.No.1881/2009 -:8:- 20. In the instant case, the appellant has not adopted either of the above two courses available to him. 21. The Tribunal, in exercise of its judicial wisdom and discretion, and after seeing the appellant with the available materials on record, fixed the whole body disability of the appellant at 20%. I do not find any reason to differ with the finding of the Tribunal in assessing the disability of the appellant at 20%, which I do hereby confirm at 20%. ## **Loss due to disability** 22. In view of the re-fixation of the notional income of the appellant at Rs.4,000/- per month and taking the multiplier at '13', and the disability at 20% , I re-fix the compensation for 'loss due to disability' at Rs.1,24,800/- instead of Rs.62,400/- awarded by the Tribunal. ## **Loss of amenities** 23. The appellant had claimed a compensation of M.A.C.A.No.1881/2009 -:9:- Rs.25,000/- under the head 'loss of amenities'. However, the Tribunal awarded only an amount of Rs.15,000/- under the said head. 24. Taking into account the fact that the appellant was hospitalised for a period of 15 days, he was indisposed for a period of five months and that he sustained permanent disability of 20%, I am of the considered opinion that the appellant is entitled for enhancement of compensation under the said head by a further amount of Rs.10,000/- i.e., an amount of Rs.25,000/- as claimed in the claim petition. ## **Compensation for disfiguration** 25. The Tribunal, in paragraph No.8 of the impugned award has noticed on the date of trial, that the appellant had severely distended and bulging abdomen as a consequence of the blunt trauma sustained to him in the accident. It was also found that the appellant was not comfortable with his abdomen, which was severely deformed and distended and that it M.A.C.A.No.1881/2009 -:10:- was protruding. After noticing the said disfiguration in the appellant, the Tribunal did not award any amount under the head 'compensation for disfiguration'. 26. Taking into account the aforementioned deformities, I hold that the appellant is entitled to a compensation of Rs.10,000/-as claimed in the claim petition as 'compensation for disfiguration'. ## **Other heads of claim** 27. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. M.A.C.A.No.1881/2009 -:11:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal<br>(in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|10,000|20,000| |2|Transport|750|750| |3|Bystander expense|1,500|1,500| |4|Medical expense|4,150|4,150| |5|Pain and sufferings|20,000|20,000| |6|Loss of amenities|15,000|25,000| |7|compensation for<br>disfiguration|Nil|10,000| |8|Loss<br>due<br>to<br>disability|62,400|1,24,800| |**Total**||**1,13,800**|**2,06,200**| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **Rs.92,400/-** with interest on the said amount at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.2,500/-. The third respondent/insurer shall deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse enhanced compensation to the M.A.C.A.No.1881/2009 -:12:- appellant/petitioner in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge