Barbera Cleetus v. Kuruvila Mathew and Alex K. Mathew and Bajaj Allianz General Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 24[TH] DAY OF JUNE 2022 / 3RD ASHADHA, 1944** **MACA NO. 497 OF 2014** **AGAINST THE AWARD DATED 10.07.2013 IN OPMV 716/2010 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONER:** BARBERA CLEETUS D/O.THRESSIA, KANNITTATYIL HOUSE, SAKTHIKULANGARA P.O., KOLLAM DISTRICT. BY ADVS. SRI.A.N.SANTHOSH SRI.R.SAM ## **RESPONDENTS/RESPONDENTS:** 1 KURUVILA MATHEW, S/O.ALEX K.MATHEW, THAIKADAVIL, RAJALAKSHMI NAGAR, PATTOM, THIRUVANANTHAPURAM - 695 004. 2 ALEX K.MATHEW, S/O.T.V.KURUVILA, VARAMBILVEETTIL, (ALUMMOTTIL HOUSE), THAIKADAVIL, RAJALEKSHMI NAGAR, PATTOM, THIRUVANANTHAPURAM - 695 004. 3 THE DIVISIONAL MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., PAZHAVANGADI, THIRUVANANTHAPURAM - 695 001. BY ADVS. FOR R1 & R2 SMT.ASHA B.MATHEW FOR R1 & R2 SRI.BIJU ABRAHAM FOR R3 SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No.497/2014 2 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.497 of 2014_ ================================ _Dated this the 24[th] day of June, 2022_ ## _**J U D G M E N T**_ This appeal arises out of award in O.P(MV).No.716/2010 dated 10.07.2013 on the file of Motor Accidents Claims Tribunal, Kollam. Appellant is the petitioner and respondents before the Tribunal are the respondents herein. 2. Heard the learned counsel for the appellant as well as the learned counsel for the respondents. 3. Facts of this case: The appellant, a fish monger, on 16.11.2009 at about 6.45 p.m while awaiting bus on the east of St.Jude's Shrine at Vettuthara on Kollam-Alappuzha National Highway alleged to have sustained M.A.C.A No.497/2014 3 injuries in a motor vehicle accident as a result of hit by the offending vehicle, a Honda City car bearing Reg.No.KL-01AQ/8712. He claimed compensation to the tune of Rs.4 lakh, from respondents 1 to 3 respectively, the registered owner, driver and insurer of car bearing Reg.No.KL-01-AQ/8712, attributing negligence on the part of the 2nd respondent. 4. The 2nd respondent filed written statement in tune with the written statement filed by the 3rd respondent. 5. The 3rd respondent filed written statement disputing the negligence, accident and quantum of compensation, while admitting policy. The Tribunal examined PW1 and PW2 and marked Exts.A1 to A2 on the side of the appellant. Ext.C1, disability certificate, also was marked. No evidence let in by the respondents. Finally, the Tribunal granted Rs.1,15,645/- with 9% interest. 6. The learned counsel for the appellant would submit that M.A.C.A No.497/2014 4 the Tribunal fixed the monthly income of the appellant at Rs.3,500/- as against claim of Rs.5,000/- in this case, where the accident is of the year 2009. According to the learned counsel, following the ratio in [(2011) 13 SCC 236], _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ also, the income during 2009 is above Rs.5,000/- and therefore, Rs.3,500/-, the monthly income fixed by the Tribunal, required to be refixed at Rs.5,000/-. 7. This submission is not seriously opposed. 8. In the petition, the appellant raised a contention that he was a fish monger and was earning Rs.5,000/- by self employment. Therefore, following the ratio in _**Ramachandrappa**_ 's case ( _supra_ ), I fix the monthly income of the appellant at Rs.5,000/-. The learned counsel for the appellant argued that the Tribunal reduced the disability 26%, assessed by the medical board to 8%. It is argued by the learned counsel for the appellant that Ext.C1 is the disability M.A.C.A No.497/2014 5 certificate issued by the medical board showing 26% disability and PW2, one among the doctors, who authored Ext.C1 also was examined. According to the learned counsel, the Tribunal went wrong in reducing 26% disability assessed as per Ext.C1 after analysing the evidence of PW2 on the premise of hair-splitting technicalities and on the assertion that there was pre-existing fracture. Therefore, the learned counsel canvassed to fix 26% as disability for the purpose of calculation of disability income, acting on Ext.C1 supported by the evidence of PW2. 9. The learned counsel for the respondents opposed enhancement of disability from 8% on the ground that the evidence of PW2 would go to show that at the time of assessing the disability it was found that there was pre-existing fracture to the appellant and also it was deposed by PW2 that the assessment made as per Ext.C1 is not the whole body assessment, but with respect to complication of C2 vertebra. M.A.C.A No.497/2014 6 10. In this case, as per Exts.A7 and A8, the appellant sustained multiple skin abrasion varying size both legs, contusion with swelling right shoulder, pain and tenderness neck and left arm and he underwent treatment for the same. As per Ext.C1 “the degree of permanent/disability consequent on the injuries sustained following RTA is assessed as 26% (Twenty six percentage) as per Mc Brides scale”. In fact, Ext.C1 does not suggest what is the actual percentage of whole body disability. However, I am of the view that since PW2 also supported Ext.C1 issued by the Medical Board, there is no need to reduce the percentage of disability. Therefore, I am inclined to accept 26% of disability for the purpose of calculating disability income. 11. In this matter, the Tribunal granted loss of earning for a period of 5 months @ Rs.3,500/-. Considering the injuries and treatment, I am inclined to recalculate the same as under: 5000 X 5 = 25,000/-, out of which Rs.17,500/- was granted by M.A.C.A No.497/2014 7 the Tribunal and the balance **Rs.7,500/- more** is granted under the head ` **loss of earning** '. As far as the disability income is concerned, the multiplier applied by the Tribunal is not disputed. Therefore, the same also is recalculated as under: 5000 X 12 X 11 X 26/100 = 1,71,600/-, out of which Rs.36,960/- was granted by the Tribunal. Therefore, **Rs.1,34,640/more** is granted under the head ` **loss of disability income'** . In this matter, the Tribunal granted Rs.10,000/- alone under the head pain and suffering. Considering the multiple injuries and treatment, I am inclined to grant **Rs.12,000/- more** under the head ` **pain and suffering'** . Similarly, no amount granted under the head `loss of amenities'. Therefore, **Rs.10,000/-** is granted under the head ` **loss of amenities** '. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of Rs.1,56,640/- (Rupees One lakh fifty six thousand six hundred M.A.C.A No.497/2014 8 forty only) at the rate of 9% interest granted by the Tribunal 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)**_ _rtr/_