BENNY S/O.POULOSE v. BIJU SIVARAM and THE NEW INDIA ASSURANCE COMPANY LIMITED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940** ## **M.A.C.A.No.99 of 2013** **AGAINST THE AWARD IN O.P.(M.V.)No.976/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **BENNY S/O.POULOSE, RESIDING AT MECHERYPADY HOUSE, PUTHENPEEDIKA, THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD SRI.P.S.APPU** ## **RESPONDENTS/RESPONDENTS:** - **1 BIJU SIVARAM** **RESIDING AT PHERUPILLIL HOUSE, THIRUVANKULAM, TRIPUNITHURA, ERNAKULAM DISTRICT, PIN 682 305. (DELETED)** **2 THE NEW INDIA ASSURANCE COMPANY LIMITED IST FLOOR, THARAYIL CHAMBERS, OPP. POWER HOUSE, BY-PASS, VYTTILA, KOCHI PIN 682 019.** **BY ADVS.** **SRI.JOHN JOSEPH VETTIKAD,SC SRI.C.JOSEPH JOHNY** - **(R1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 23/11/2018 IN IA NO.1/2018).** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 99 of 2013 2** ## **JUDGMENT** This appeal is directed against the award dated 23.07.2012 of the Motor Accidents Claims Tribunal, Thrissur (for short 'the Tribunal') in O.P.(M.V.)No.976 of 2006. The appellant is the petitioner before the Tribunal. For sake of convenience the parties to this appeal are referred to hereinafter as petitioner and respondents 1 and 2. 2. The petitioner met with a motor accident at about 2.30 pm on 25.03.2006, at Palakkuzhy, when a car bearing registration No.KL-7/AQ 2447 dashed against the motorcycle bearing registration No.KL-8/J 3017 ridden by him and proceeding through Cherppu-Thriprayar public road. In the impact, the petitioner was thrown down on the public road. He had sustained serious injuries and was rushed to Elite Mission Hospital and had undergone surgical procedures. Contending that, the accident was occurred due to the rash and negligent driving of the car by its driver, who was also it's registered owner at the relevant time and seeking for a compensation of Rs.5,00,000/-, the claim petition numbered as above was preferred by the petitioner before the Tribunal. ## **MACA.No. 99 of 2013 3** 3. The first respondent, the owner cum driver of the offending car remained ex-parte before the Tribunal. The second respondent, who was the insurer of the car, had filed written statement before the Tribunal, admitting insurance coverage of the same as on date of accident and contending that the petitioner as rider of the motorcycle was responsible for the accident by his rash and negligent riding and that the compensation sought for is excessive and without any basis. The age, income and occupation of the petitioner and the nature of injuries sustained by him were also disputed. 4. This claim petition was tried jointly with O.P.(MV) No.978/2006 and therefore evidence common to both claim petitions is available and included oral evidence of PWs 1 and 2 and documentary evidence of Exts.A1 to A13 series. The second respondent made the copy of the policy of the car available and got marked in evidence as Ext.B1. 5. The Tribunal had appreciated the evidence on record and arrived at a finding that the first respondent, the owner cum driver of the car was responsible for the accident by his rash and negligent driving. The Tribunal had also found the petitioner, entitled to get compensation from respondents 1 and ## **MACA.No. 99 of 2013 4** 2 jointly and severally. The Tribunal thus arrived at the compensation payable to the petitioner as Rs.2,87,400/- and directed the second respondent to deposit the same with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation in favour of the petitioner. Aggrieved by the sum arrived at by the Tribunal and contending that the same is inadequate, unjust and unreasonable, the captioned appeal is preferred before this Court by the petitioner. 6. The contention of Sri.T.C.Suresh Menon, the learned counsel for the petitioner was that, the Tribunal went wrong in fixing notional income of Rs.5,000/- as monthly income of the petitioner despite the factum that the petitioner himself had made available, oral evidence of himself as PW1 and documentary evidence. According to the learned counsel, the income fixed being Rs.5,000/-, refixation of the same on the basis of the available evidence on record is highly warranted. The next contention advanced was that, the petitioner had sustained serious injuries and on account of that suffered permanent disability. According to him, the petitioner got his permanent disability assessed as 21% through a medical ## **MACA.No. 99 of 2013 5** practitioner, but the Tribunal has taken only 16% without justifiable reasons. Therefore, the learned counsel seeks for interference with the impugned award on that count also. Interference is also sought with the grant of compensation under the heads bystander expenses, transportation expenses, loss of earnings, pain and sufferings and loss of amenities and enjoyments in life. According to the learned counsel, the Tribunal failed to award compensation under the head extra nourishment and this Court needs to interfere and grant reasonable sum as compensation under that head in view of entitlement of petitioner for that. Despite the availability of satisfactory materials evidencing the period of inpatient treatment undergone by the victim, the Tribunal failed to compensate him under the head bystander expenses. According to the learned counsel, it is well evidenced from the materials available on record before the Tribunal that the petitioner had availed treatment from three different hospitals and had follow ups several times following the inpatient treatment. Despite evidence available to establish those aspects, the Tribunal was pleased to grant only a sum of Rs.3,000/- as compensation under the head transportation ## **MACA.No. 99 of 2013 6** expenses, which according to the learned counsel is too low and inadequate. 7. According to the learned counsel, though it is evidenced from the narration in paragraph 9 of the impugned award that the petitioner had sustained Comminuted fracture on both bones of lower 3[rd] left forearm, comminuted fracture on shaft of left femur, comminuted fracture on both bones, lower 3[rd] of right forearm involving articular cartilage, lacerated wound on left knee with partial tear of patellar ligament, deformity both forearm, lacerated wound left knee joint patellar tenderness and deformity on left thigh, the Tribunal had arrived at only a sum of Rs.15,000/- as compensation payable under the head pain and sufferings and it being a sum low and disproportionate to the actual sufferings of the petitioner, interference is warranted. The further contention advanced was with regard to the inadequacy in the grant of Rs.12,000/as compensation under the head loss of amenities and inconveniences. According to the learned counsel, the petitioner had sustained grievous injuries and had undergone several surgical procedures as part of treatment. According to him, he had undergone inpatient treatment for 11 days at different ## **MACA.No. 99 of 2013 7** hospitals. It is also discerned from the materials available in evidence that, even after getting discharged from the hospital, the petitioner was advised to take rest. Therefore, the petitioner must have been deprived of a normal life for a considerable time. According to the learned counsel, though these matters had been apprised to the Tribunal by adducing relevant evidence, only a sum of Rs.12,000/- was arrived at as compensation payable under that head. The learned counsel canvassed for interference with the impugned award on that count and seeks for modification of the compensation for the reasons stated. The learned counsel has also pointed to this Court that, though the petitioner had sustained several serious injuries and had undergone treatment for a prolonged time, the Tribunal had taken only three months for the purpose of assessment of compensation for loss of earning. According to the learned counsel, the period taken by the Tribunal is disproportionate to the extensive period for which treatment was continued by the petitioner and therefore, interference is highly warranted. 8. The learned counsel has further contended that, the petitioner had mounted the box to depose that he was working ## **MACA.No. 99 of 2013 8** as Machinist abroad and was getting 22000 Saudi Dirhams as monthly salary. As per the claim of the petitioner in the claim petition, his monthly salary is Rs.40,000/-. Ext.A1 Certificate is marked in evidence by him to establish the same and it is certified therein by the employer that the petitioner was paid basic pay of 2000 Saudi Dirhams. The Tribunal has observed in the award under challenge that 2000 Saudi Dirhams is worth Indian currency of Rs.25,000/-. But Tribunal had taken notional income of Rs.5,000/- as the monthly income for arriving at compensation both for loss of earning and permanent disability. According to the learned counsel, the compensation arrived at with the monthly income fixed as Rs.5,000/- is improper and unjust and calls for interference. 9. Per contra, Sri.John Joseph Vettikad **,** the learned counsel on behalf of the second respondent, insurer has contended that the Tribunal has appreciated the entire evidence in its proper perspective to arrive at compensation which is just and resonable. According to him, interference is totally uncalled for with the award of compensation under any of the heads. ## **MACA.No. 99 of 2013 9** 10. In the backdrop of the rival contentions put forth as above, this Court finds it appropriate to have an evaluation of the evidence to see whether the impugned award suffers from grant of unreasonable compensation in any manner. Towards loss of earning, the Tribunal had awarded a sum of Rs.15,000/- by taking Rs.5,000/- as the monthly income for a period of three months. As already stated the petitioner had sustained serious injuries, which include Comminuted fracture on both bones of lower 3[rd] left forearm, comminuted fracture on shaft of left femur, comminuted fracture on both bones, lower 3[rd] of right forearm involving articular cartilage, lacerated wound on left knee with partial tear of patellar ligament, deformity both forearm, lacerated wound left knee joint patellar tenderness and deformity on left thigh. He had also undergone several surgical procedures and treatment as inpatient for 11 days. He was also advised to take rest thereafter. With the above facts in mind, this Court finds justification in fixing the period for calculating compensation for loss of earnings as one year. Evidence has been adduced by the petitioner while being examined as PW1, that the accident in question was occurred, during the period while he was on leave and following the ## **MACA.No. 99 of 2013 10** treatment, he had abandoned the job abroad. The Tribunal was carried away by the factum of abandonment of job by the victim while limiting the period for calculation of compensation for loss of earnings to three months. 11. As already stated, the monthly income was fixed by the Tribunal notionally as Rs.5,000/-. PW1 had adduced oral evidence that, he was working as a machinist abroad at the relevant time of accident and was getting Indian currency worth Rs.40,000/- as monthly income. Certificate allegedly issued by his employer wherein his basic salary was certified as 2000 Dirhams is marked in evidence as Ext. A1. But the petitioner failed to examine the alleged employer who had signed the same. The Tribunal found Ext.A1 inadmissible in evidence and for finding so, it cannot be found fault with for failure of petitioner to prove it. The First Information Report registered based on the accident and the information for that was furnished by the victim of the accident. As noticed from the FIS, the petitioner had stated to the police that he was employed abroad at the relevant time. Though the nature of the job was not spoken by him, his employment abroad having been spoken at the initial point of time, immediately after he ## **MACA.No. 99 of 2013 11** had met with the motor accident itself, the Tribunal ought to have taken a sum higher than Rs.5,000/- as his monthly income. Placing reliance on _**Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd. (AIR 2011 SC**_ _**2951),**_ wherein the Apex Court had taken Rs.4,500/- as the monthly income while calculating the compensation payable to a coolie worker who had met with a motor accident in the year 2004, this court finds every justification in fixing the monthly income as Rs.8,000/- and accordingly fixes so. 12. When compensation payable under the head loss of earning is calculated based on the monthly income refixed as Rs.8,000/- and for a period of one year modified by this Court the amount payable will be Rs.96,000/-. When, Rs.15,000/-, the sum already awarded by the Tribunal under the head is adjusted against, a sum of Rs.81,000/- will be the sum payable to the petitioner additionally. 13. Despite having convinced with the injuries sustained by the petitioner and discussed those elaborately in the impugned award, the Tribunal has awarded only Rs.15,000/- as compensation under the head pain and suffering. This court has no hesitation to hold that the Tribunal is highly unjustified ## **MACA.No. 99 of 2013 12** in doing so. Accordingly, the compensation payable under that head is fixed as Rs.1,00,000/-. Rs.15,000/- being the sum already paid by the Tribunal as compensation under that head, the petitioner will be entitled to get Rs.85,000/- as compensation additionally. 14. The Tribunal had granted Rs.1,800/- as compensation under the head bystander expenses. Since, the petitioner had sustained multiple fractures of serious nature the need for him to be assisted by a bystander atleast for a period of one month, cannot be ignored. Rs.200/- per day appear to this Court a reasonable sum payable and when that is considered for a period of one month, the total sum payable as compensation under that head will be Rs.6,000/-. Since Rs.1,800/- has already been awarded by the Tribunal, Rs.4,200/- will be the sum payable as compensation additionally. As mention made earlier, the Tribunal failed to award any compensation under the head extra nourishment. The accident having been occurred in the year 2006, this Court is inclined to consider Rs.200/- per day, for a period of 30 days. Therefore, a sum of Rs.6,000/- is found payable as compensation under the head extra nourishment. ## **MACA.No. 99 of 2013 13** 15. The Tribunal had awarded a sum of Rs.3,000/- under the head transportation expenses. As established from the evidence on record, the petitioner had availed treatment from three different hospitals. It is also evidenced that following the inpatient treatment in view of the seriousness of the injuries, the petitioner was compelled to attend the hospital on several occasions. Rs.3,000/- awarded by the Tribunal as compensation under the head transportation expenses being inadequate and not liable to meet out the actual expenditure likely to have incurred, there is justification in granting Rs.10,000/- and the same is found as payable. In the refixation of the compensation in the above manner, the petitioner will get Rs.7000/- over and above Rs.3000/- already awarded by the Tribunal. Under the head loss of amenities and enjoyments in life, the Tribunal has awarded a sum of Rs.12,000/-. In view of the serious injuries sustained by the petitioner and the several surgical procedures undergone by him as part of treatment, the claim of the petitioner that he had been deprived of the enjoyments of amenities in life cannot be ignored. Rs.12,000/awarded by the Tribunal as compensation being unreasonable and unjust, this Court is inclined to grant Rs.40,000/- under ## **MACA.No. 99 of 2013 14** the head. Therefore, the petitioner will get a sum of Rs.28,000/- over and above Rs.12,000/- already awarded by the Tribunal. 16. According to the learned counsel, though the disability of the petitioner was assessed by a medical practitioner as 21%, and issued Ext.A9 certifying the same, the Tribunal failed to consider that in its entirety. The Tribunal had taken only 16% as the whole body disability of the petitioner for the purpose of arriving at compensation for permanent disability. The petitioner got his disability assessed through Dr.Vijayakumar and obtained Ext.A9. In the impugned award, the Tribunal had discussed the contents of Ext.A9 in detail. As per the discussion made in the impugned award, 21% of permanent disability was assessed by Dr.Vijayakumar for reasons that the fracture sustained by the petitioner on his left femur was united improperly with shortening of the left femoral segment by 1 c.m., that the petitioner had partial ankylosis of left hip with limitation of flexion beyond 90 degree without external rotation of hip with difficulty in squatting, that he had partial ankylosis of left knee with painful limitation of left knee, flexion beyond 90 degree, that the fracture of left ## **MACA.No. 99 of 2013 15** radius was malunited with partial ankylosis of left forearm with limitation of pronation and supination of left forearm, that the petitioner has difficulty in using his left hand even for daily pursuits, that he had partial ankylosis of right forearm with malunited fracture of lower radius, 20 degree valgus position with 1 c.m. shortening of radial segment with rotational ankylosis of right forearm and that 15 degree supination and pronation alone was possible from midprone position. For reasons as above Dr.R.Vijayakumar had arrived at 21% as the percentage of whole body disability of the petitioner. Dr.R.Vijayakumar, who had issued Ext.A9 certificate was examined as PW2. Solely for the reason that the petitioner failed to get his disability assessed by a medical board the Tribunal was reluctant to take the disability of 21% in full and took 16%. This Court finds that the assessment for compensation for disability by taking the whole body disability of the petitioner as 16% is unreasonable. The petitioner got himself examined before the Tribunal as PW1. In Ext.A9 certificate, the reasons for arriving at whole body disability of 21% are elaborately dealt with. Without adverting to those reasons, the Tribunal had taken 16% as the disability of the ## **MACA.No. 99 of 2013 16** petitioner and compensation for disability was arrived at on its basis. In the backdrop, this court is inclined to consider 18% as the disability for arriving at just and reasonable compensation under the head disability. As already stated, the monthly income was fixed for the purpose of calculation of compensation as Rs.8,000/-. The multiplier of 16 was correctly applied. Therefore, in refixation of compensation with the multiplicand as Rs.96,000/- (8000 x 12), the multiplier as 16 and the percentage of the disability as 18%, the compensation payable under the head disability will be Rs.2,76,480/[8000x12x16x18/100]. Rs.1,53,600/- being the sum already awarded by the Tribunal under that head Rs.1,22,880/-, will be payable additionally. In the result, the appeal stands allowed in part. In the calculation with the modified sums as above, the total sum payable to the petitioner additionally will be **Rs.3,34,080/-.** The same is rounded off to **Rs.3,34,100/- (Rupees three lakhs thirty four thousand one hundred only)** . The said amount will carry interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. The second respondent, insurer shall deposit the sum found by this ## **MACA.No. 99 of 2013 17** Court as payable in addition with interest as directed to be paid within a period of three months from the date of receipt of a copy of this judgment. The parties shall bear their respective costs. Sd/- **MARY JOSEPH JUDGE** ## **NAB**