Bijin Louis v. V.T. Sunny, Rajan & Oriental Insurance Co. Ltd.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 ## MACA NO. 723 OF 2011 AGAINST THE AWARD IN OP(MV) NO.1777/2004 DATED 4.10.2020 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ## APPELLANT/PETITIONER: BIJIN LOUIS, S/O.K.P. LOUIS, COOLA HOUSE, P.O.KURIACHIRA,, THRISSUR DISTRICT. BY ADVS. SRI.P.V.CHANDRA MOHAN SRI.ANTONY SHYJU ## RESPONDENTS/RESPONDENTS: 1 V.T.SUNNY, S/O. V.T.THOMAS, VETTATH HOUSE, MARACKAL, KANNARA,, THRISSUR-68001 2 RAJAN, S/O.VELAYUDHAN KAMBILI HOUSE, THEKKUMPADAM,, PEECHI, THRISSUR DISTRICT. 3 THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, 3RD FLOOR,, MAHESWARI BUILDING, M.G.ROAD, THRISSUR. BY ADVS. SRI.N.S.NAJEEB FOR R3 SRI.C.HARIKUMAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.723 of 2011 2 ## JUDGMENT This appeal is filed by the petitioner in OP(MV)No.1777 of 2014 on the file of the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident occurred on 16.2.2004 when the motor cycle which was being ridden by him was hit by a tempo van driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent. He contends that due to the impact of the accident, he sustained very serious injuries which resulted in permanent physical disability for him. According to the claimant, he was an electrician, aged 26 years with a monthly income of Rs.4,500/- at the time of accident. The total compensation claimed by him was Rs.1,89,000/-. 2. The owner and the driver remained ex-parte and the 3[rd] respondent Insurance Company filed a written statement admitting the coverage of policy. However, MACA No.723 of 2011 3 the Insurance Company contended that there was violation of policy conditions as the 2[nd] respondent was not having a valid driving licence at the time of the accident. The amount of compensation claimed was also disputed by them. 3. The evidence in this case consists of Exts.A1 to A15 from the side of the appellant. A copy of the insurance policy was marked as Ext.B1. No oral evidence was adduced from either side. After the trial, the Tribunal held that the accident occurred due to the negligence on the part of the driver of the tempo van and was also found that the driver was not duly licenced at the time of the accident. The quantum of compensation awarded was Rs.73,635/- and the Insurance Company was directed to deposit the said amount along with interest at the rate of 8% per annum and it was also observed that the 3[rd] respondent-Insurance Company can recover the said amount from the 1[st] respondent after satisfying the award. MACA No.723 of 2011 4 4. This appeal is filed challenging the quantum of compensation by the appellant and seeking enhancement thereof. 5. Heard both sides. 6. The learned counsel for the appellant contends that the monthly income fixed by the Tribunal is only Rs.2,500/- whereas he was engaged in the avocation of an electrician and his monthly earnings was Rs.4,500/-. Even though no documents were produced to substantiate the said claim, he points out that even in the F.I.R itself his avocation was stated as an Electrician. But considering the fact that the accident occurred in the year, 2004, the monthly income of Rs.2,500/- as taken by the Tribunal appears to be on lower side. Going by the principles laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236] and Syed Sadiq v. Divisional Manager, United Indian Insurance Company Limited [(2014)2 SCC 735], even in the case of a coolie, the monthly income can be fixed as MACA No.723 of 2011 5 Rs.4,500/- in respect of an accident occurred in the year, 2004. In such circumstances, the entire monthly income as claimed by the appellant ie. Rs.4,500/- can be taken for the purpose of fixing the quantum of compensation, since the accident in this case occurred in the year 2004. 7. Another aspect highlighted by the learned counsel for the appellant is relating to the percentage of disability. He points out that even though as per Ext.A11 certificate issued by Dr.Jyotish K., the Lecturer in Orthopaedics of Medical College, Thrissur, the percentage of disability was certified as 12% due to loss of range of movements, loss of muscle strength, loss of stability, scarring and deformity. However, the Tribunal has taken only 4% of disability on the ground that the doctor was not examined. In such circumstances, the learned counsel for the appellant contends that there is no justification on the part of the Tribunal in not accepting the medical certificate. On the other hand, the learned counsel for the MACA No.723 of 2011 6 Insurance Company strongly opposed the said contentions by submitting that the contends of Ext.P11 certificate was not properly proved and hence no circumstances are in existence warranting the interference in the finding of the Tribunal. On going through the nature of injuries sustained by the appellant, it can be seen that the same are of serious in nature. Apart from the above, consequent to the injury, he was also hospitalized for a considerable period of 25 days. When taking into account the nature of injuries as mentioned in Ext.A6 wound certificate, it is probable that the finding of the doctor in Ext.A11 is justified. I am of the view that, unless any serious discrepancy is pointed out in the matter of assessment of disability by the Doctor, the medical certificate can be accepted and it is not justifiable to discard the same, merely because of the reason that, the doctor was not examined. In this case, I am unable to find any such discrepancy, which justifies the substitution the expert opinion of the doctor, with the assessment of MACA No.723 of 2011 7 Tribunal. In such circumstances, I do not find any ground to disbelieve the percentage of disability as certified by the doctor in Ext.A11 certificate and accordingly it is admitted as such. At this juncture, the learned counsel for the insurance company, points out that the multiplier adopted by the Tribunal was 18, which is not proper. It is seen from Ext. A14 driving license that the date of birth of the petitioner is 16.06.1977 and the date of accident was 16.02.2004. This shows that, the petitioner comes within the age group of 25 to 30 and going by the multiplier as stipulated in the case of Sarla Verma v. Delhi Transport Corporation & Ors.[(2009)6 SCC 121] , it is 17 and not 18 as applied by the Tribunal. Thus, while reworking the compensation for permanent disability with the revised monthly income, the percentage of disability as certified in Ext.A11 and multiplier of 17, the amount payable under the said head comes to Rs.1,10,160/- (Rupees One Lakh Ten thousand One hundred and sixty only)(Rs.4,500x12x17x12/100). The Tribunal MACA No.723 of 2011 8 has already awarded an amount of Rs.21,600/-. After deducting the same, the additional amount receivable by the appellant under this head is Rs . 88,560 /-. 8. The learned counsel for the appellant further points out that no amount has been awarded by the Tribunal for loss of amenities even though he sustained serious permanent disablement. Considering the nature of injuries and the physical discomfort which may emanate from such injuries, it is in the interest justice to grant some amount under the head of loss of amenities. Taking into account the overall circumstances of the case, I am of the view that, an amount of Rs. 10,000 /- would be reasonable under this head and it is accordingly awarded. 9. Consequent to the revision of monthly income, the appellant shall be entitled for additional amounts under the head of loss of earnings as well. The Tribunal has awarded an amount of Rs.7,500/- under this head which was calculated at the rate of Rs.2,500/- for MACA No.723 of 2011 9 a period of three months. Consequent to the revision of monthly income, he is found entitled for a further sum of Rs. 6,000 /-under this head. In the above circumstances, the total amount of compensation, in addition to the amount already awarded by the Tribunal, is determined as Rs. 1,04,560/ - (Rupees One Lakh Four thousand Five hundred and Sixty only) [Rs.88560 + 10,000 + 6000] and the Insurance Company shall deposit the said amount along with interest and proportionate cost as determined by the Tribunal. However, the finding relating to the right of the Insurance Company to recover the said amount from the 1[st] respondent is retained. The above appeal is disposed of accordingly. Sd/ZIYAD RAHMAN A.A. JUDGE pkk