Benny v. K.V. Francis, Tony Francis, United India Insurance Co. Ltd.

MACA NO. 1350 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 14[TH] DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943** **MACA NO. 1350 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 437/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/S:** BENNY, S/O.CHIRIYAKKU, PULIKOTTIL HOUSE, KORATTIKKARA, VIA KADAVALLUR, THRISSUR. BY ADV SRI.T.C.SURESH MENON ## **RESPONDENT/S:** 1 K.V.FRANCIS, KAKKASSERY HOUSE, EZHAVATHURUTHY, PONNANI, MALAPPURAM DISTRICT. 2 TONY FRANCIS KAKKASSERY HOUSE EZHAVATHURUTHY, PONNANI, MALAPPURAM DISTRICT. 3 UNITED INDIA INSURANCE CO. LTD. WESTERN WING, AMBADI BUILDING, PONNANI,, MALAPPURAM DISTRICT. BY ADV SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1350 OF 2011 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.437/2007 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 26.02.2007. It was his case that while he was riding motor cycle bearing registration No.KL-8-L2051 (motor cycle) through Kunnamkulam – Kuttippuram public road, when he reached a place named Akkikavu Kambipalam, a car bearing registration No.KL-10-R-5297 (car), driven by the 2[nd] respondent in a rash and negligent manner and at excessive speed came from the opposite direction and hit the motor cycle. The appellant was thrown on to the road and he sustained grievous injuries, including a fracture on his right leg and right shoulder. He was taken to the Kunnamkulam Government Hospital and, thereafter, referred to the West Fort Hospital, Thrissur. The MACA NO. 1350 OF 2011 3 car was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a Tailor by profession and earning a monthly income of Rs.5,000/-. The appellant claimed a compensation of Rs.2,70,000/- from the respondents. 3. In connection with the damage that was caused to the motor cycle of the appellant, he also filed OP(MV) No.1025/2007 before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceedings. The 3[rd] respondent filed written statement in both the claim petitions contending that the accident occurred due to the negligence of the appellant. It was contended that the amount of compensation claimed was highly excessive. Nevertheless, the 3[rd] respondent admitted that the car had a valid insurance coverage. 5. The Tribunal consolidated and jointly tried the claim petitions. The appellant produced and marked Exts.A1 to A16 in evidence. The respondents did not let in any evidence. 6. The Tribunal by its common award allowed the MACA NO. 1350 OF 2011 4 captioned original petition by permitting the petitioners to release an amount of Rs.1,42,100/- from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal the appellant is in appeal. 8. Heard Sri.T.C.Suresh Menon, learned counsel appearing for the appellant and Smt.Raji T.Bhaskar learned counsel appearing for the 3[rd] respondent/insurer. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 10. It is proved by Ext.A6 charge sheet filed by the Police in Crime No.147/2007, that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and was vicariously liable for the liability. As the car had a valid insurance policy, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent. ## **Notional Income** 11. The appellant had claimed that he was a Tailor by MACA NO. 1350 OF 2011 **==> picture [7 x 9] intentionally omitted <==** profession earning a monthly income of Rs.5,000/-. Nevertheless, the Tribunal fixed the notional income of the appellant at Rs.3,000/- per month. 12. In **Ramachandrappa vs. Manger, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the principles in **Ramachandrappa** (supra) and taking note of the fact that the accident occurred in the year 2007 and that the appellant was a Tailor by profession, I hold that the appellant’s notional income can safely be fixed at Rs.5,000/- per month as claimed in the claim petition. ## **Loss of earnings** 14. It is proved through Ext.A3 wound certificate, Ext.A7 discharge summary and Ext.A8 disability certificate that the appellant had sustained serious injuries including a fracture on his right leg and fracture of his left shoulder. He was treated as an inpatient for a period of 28 days. As MACA NO. 1350 OF 2011 6 per Ext.A8, it is certified that the appellant has a disability of 14%. In the above said circumstances, I am of the opinion that the appellant was indisposed for a period of four months. Therefore, he is entitled for loss of earnings at Rs.20,000/-. ## **Multiplier** 15. The appellant was aged 34 years on the date of accident. Hence, the relevant multiplier as per the law laid in S **arla Varma vs. Delhi Transport Corporation:** [2010 (2) KLT 802] is ‘16’ ## **Loss due to disability** 16. Even though the appellant had produced Ext.A8 disability certificate issued by the Assistant Professor of the Department of Orthopaedics, Medical College Hospital, Thrissur, certifying that the appellant has a disability of 14%, the Tribunal refused to accept the assessment made in Ext.A8 for the reason that the appellant had not examined the Doctor who issued the said certificate. 17. In **Rajkumar vs. Ajaykumar** [2011 (1) KLT SC] **,** the Honourable Supreme Court had empathetically held MACA NO. 1350 OF 2011 7 that if a Tribunal is dissatisfied with the medical evidence produced before it, it is the bounden duty of the Tribunal to constitute a medical board (from a panel maintained by it in consultation with reputed local hospitals/Medical Colleges) and refer the claimant to such medical board for assessment of disability. It is also observed that if the medical certificate is not contested and are marked in evidence, the same can be presumed to be marked with the consent of both parties, thereby dispensing with the oral evidence. 18. In the instant case, I do not find that the respondents have raised any objection in the marking of Ext.A8 or that the said certificate has been marked subject to proof. Therefore, I am of the firm opinion that Ext.A8 was marked with the consent of the parties. Accordingly, I accept Ext.A8 on record and take the same into consideration for assessment of the occupational disability of the appellant. 19. In Ext.A8, the Doctor had certified that the appellant has an anterior ligament laxity in the right knee MACA NO. 1350 OF 2011 8 at 6%, joint dislocation with stiffness of the shoulder joint at 3% and stiffness of his right knee at 2% which comes to 11%. I accept the said certification and fix the functional disability of the appellant at 11%, as he is a Tailor by profession. 20. In view of the fixation of the occupational disability of the appellant at 11%, taking his income at Rs.5,000/- and the multiplier at 16, I award compensation for loss due to disability at Rs.1,05,600/-. ## **Loss of amenities** 21. Even though the appellant had claimed an amount of Rs.25,000/- towards loss of amenities, the Tribunal awarded only an amount of Rs.5,000/-. In view of the fixation of the occupational disability of the appellant at 11%, I am of the opinion that he is entitled for enhancement of compensation under the said head by a further amount of Rs.6,000/- totalling to Rs.11,000/- 22. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. MACA NO. 1350 OF 2011 9 23. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation modified and recalculated above and given in the table for easy reference. **==> picture [436 x 439] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earning 12,000 20,000<br> 2. Transportation 2,000 2,000<br>3. Clothing 500 500<br>4. Bystander expenses 5,600 5,600<br>5. Extra nourishment 3,000 3,000<br>6. Medical Expenses 89,000 89,000<br>7. Pain and suffering 20,000 20,000<br>8. Loss of amenities 5,000 11,000<br>9. Loss of earning 5,000 5,000<br>capacity<br>10. Loss due to disability 0 1,05,600<br>Total 1,42,100 2,61,700<br>**----- End of picture text -----**<br> MACA NO. 1350 OF 2011 10 In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.1,19,600/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.3,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc