Biju v. Benoy, Manager, Mary Matha Public School, and The New India Assurance Co Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938** **MACA.No. 1968 of 2013 () -------------------------** ## **AGAINST THE AWARD IN OPMV 919/2009 of MACT PALA DATED 29/11/2012** ## **APPELLANT/PETITIONER:** **---------------------------------** **BIJU, S/O.GOPALAKRISHNAN NAIR, PANANTHANATHU HOUSE, BIJU BHAVAN, KIDANGOOR VILLAGE, NEAR THRIKKAYIL TEMPLE, PIRAYAR KARA** ## **BY ADV. SRI.ABRAHAM MATHEW (VETTOOR)** ## **RESPONDENTS/RESPONDENTS:** ## **--------------------------** ## **1. BENOY** **S/O.N K THOMAS,CHITTALAKKATTU HOUSE, ADNOOR KARA,ELACKADU VILLAGE,PIN-686587** ## **2. THE MANAGER** **MARY MATHA PUBLIC SCHOOL, KADAPLAMATTOM,PALA, KOTTAYAM DIST, PIN-686571** ## **3. THE NEW INDIA ASSURANCE CO LTD** **REP BY ITS DIVISIONAL MANAGER, KOTTAYAM-686001** ## **BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1968 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of June, 2016 ## **JUDGMENT** ## Ravikumar, J. The injured claimant comes up in appeal aggrieved by and dis-satisfied with the quantum of compensation awarded in O.P.(MV) No.919/2009 passed by the Motor Accidents Claims Tribunal, Pala. The claim petition was filed under Section 168 of the Motor Vehicles Act seeking for compensation for the injuries sustained by the appellant in the motor vehicle accident that occurred on 2.7.2009. On that day, he was riding his motor cycle bearing Reg.No.KL-5/X-389 at about 6.45 p.m. When he reached near Pirayar Kara in Kidangoor village, the offending vehicle which is a mini bus bearing Reg.No.KL-5/U-2481 driven by the first respondent hit against his motor cycle. He sustained injuries in the said accident and was initially taken to Matha Hospital, Thellakom and on 3.7.3009 he was shifted from there to Medical Trust Hospital, Ernakulam. He remained there as inpatient till 18/07/2009. M.A.C.A.No.1968/2013 2 Ext.A11 Discharge summary would reveal that he had been inpatient for a period of 26 days and in the accident he sustained the following injuries : 1)Lacerated wound over the lower lip 1 x ½ cm 2)Four teeth of the lower jaw avulsed - 3)Basicervical fracture neck of femur and comminuted fracture shaft of femur right - 4)Midline fracture of mandible It is in the said circumstances that he filed the claim petition seeking for a total compensation of Rs.5,00,000/-. 2. Pursuant to the direction by the Tribunal, the appellant was referred for being examined by the Medical Board and consequently the Medical Board issued Ext.X1 disability certificate certifying the permanent disability as 11%. 3. No oral evidence was adduced by both sides and on the side of the appellant, Exts.A1 to A12 were got marked. There was no documentary evidence as well from the part of the respondents. After evaluating the evidence on record and appreciating the rival M.A.C.A.No.1968/2013 3 contentions, the Tribunal as per the impugned award granted a total compensation of Rs.2,81,593/- with interest @ 7.5% per annum from the date of petition till realization. As noticed herein before, it is soliciting enhancement of compensation that the captioned appeal has been preferred. 4. We have heard Adv.Sri.Abraham Mathew, the learned counsel for the appellant as also Adv.Sri.A.A.Ziyad Rahman, the learned counsel for the third respondent. 5. Obviously, the accident, the cause of the accident as the negligence from the part of the first respondent and the existence of a valid policy in respect of the offending vehicle covering the period in question are not at all in dispute. In short, the question to be considered in this case is whether or not the appellant is entitled to get enhancement of compensation as claimed. 6. The learned counsel for the appellant contended that the Tribunal erred in fixing the monthly income of the appellant as Rs.4,000/- ignoring the specific averments taken in the claim petition to the effect that he was a document writer by profession and was earning 4 M.A.C.A.No.1968/2013 Rs.10,000/- per month. It is the contention of the learned counsel that it is the erroneous fixation of the monthly income that virtually deprived him of 'just compensation'. Further, it is contended by the learned counsel that the Tribunal granted only meagre amounts towards loss of earnings, extra nourishment, damage to clothing, pain and suffering as also for loss of amenities. 7. The learned counsel appearing for the third respondent on the contrary contended that the Tribunal cannot be said to have erroneously fixed the monthly income of the appellant at Rs.4,000/-. Despite the specific averments in the claim petition, the appellant had not adduced any evidence in support of his contention regarding occupation and income. That apart, it is contended that going by the averments, the appellant was aged 34 years, but the Tribunal wrongly took the multiplier as 17, instead of 16. It is to be noted that the injuries sustained by the appellant in the accident resulted in permanent disability. It is submitted that in the light of the schedule given in the decision of the Apex Court in **Sarla Varma v. Delhi Transport Corporation [ 2010 (2) KLT 802 (SC)]** , the multiplier to be taken with M.A.C.A.No.1968/2013 5 reference to the age of the appellant herein, is only 16. In short, the contention of the learned counsel for the third respondent is that no case has been brought out by the appellant warranting appellate interference. 8. In the light of the rival contentions, we are of the view that the question to be considered is whether the Tribunal had erred in fixing the monthly income of the appellant notionally at Rs.4,000/-, in identifying the multiplier as 17 and in taking the percentage of disability only at 8%. True that in the claim petition, the appellant averred that he was a document writer by profession and was earning Rs.10,000/- per month. But at the same time, it is a fact that he had not tendered any evidence in support of his averments regarding the occupation and income. In such circumstances, we are of the view that the Tribunal cannot be found fault with in fixing the monthly income of the appellant notionally. But then the question is whether the Tribunal has correctly fixed the monthly income notionally. The accident occurred on 2.7.2009. The appellant was then aged 34 years. There is nothing on record to suggest that he was a disabled person prior to the M.A.C.A.No.1968/2013 6 accident. In such circumstances, in the light of the decision in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.** **[( 2011) 13 SCC 236],** wherein the Honourable Apex Court fixed the monthly income of a coolie who met with an accident in 2004 notionally at Rs.4,500/-, we are of the view that the monthly income of the appellant has to be fixed notionally, for calculation purpose, at Rs.5,500/- taking note of his age as also the year of the accident. It is accordingly fixed as Rs.5,500/-. With respect to the multiplier adopted by the Tribunal, there can be no doubt that it has to be identified looking into the schedule given in the decision in **Sarla Varma's** case (supra). Going by the same, being a person who belongs to the age group of 31-35, the multiplier to be adopted in this case is 16. As noticed herein before, instead of 16, the Tribunal adopted 17. Therefore, we are inclined to take the correct multiplier for calculation purpose, viz; 16. 9. Now, the next question to be considered is whether the Tribunal has correctly assessed the percentage of disability for the purpose of computing the compensation for permanent disability. M.A.C.A.No.1968/2013 7 Ext.X1 is the disability certificate issued by the Board. Going by the same, the appellant incurred 11% permanent partial disability. On going through Ext.X1 disability certificate, it is seen that the appellant has stiffness and pain on right hip and knee with wasting of muscles around right knee. As noticed hereinbefore, the appellant had not established his occupation by tendering evidence in that regard. Such difficulties mentioned in Ext.X1 would adversely affect a person even for eking livelihood by engaging in coolie activities, to some extent. In such circumstances, we are inclined to take 9.9 as the percentage of to be reckoned for the of the disability purpose computing compensation under the said head in place of 8%, as assessed by the Tribunal. In such circumstances, with the refixed monthly income, multiplier and percentage of disability, if the amount of compensation payable under the head of disability is re-assessed, the appellant would be entitled to get an amount of Rs.1,04,544/-. The appellant was granted only an amount of Rs.65,280/- under that head by the Tribunal. In such circumstances, the appellant would be entitled to get an amount of Rs.39,264/- over and above the said amount awarded by the Tribunal M.A.C.A.No.1968/2013 8 under that head. 10. Towards, loss of amenities, the Tribunal granted only an amount of Rs.10,000/-. We have already noted the nature of the injuries sustained by the appellant in the accident as also the permanent disability incurred by him in the accident. In such circumstances, it is evident that such injuries would have disabled him from enjoying life as before. In such circumstances, we are inclined to award Rs.10,000/more under the said head. 11. Towards loss of earnings, the Tribunal took the period as three months and granted an amount of Rs.12,000/-. In view of the nature of the injuries, we are of the view that the period of loss of earnings taken by the Tribunal is too short. We are of the view that it has to be taken as six months. It is taken accordingly as six months. In view of the modified monthly income and taking the period of loss of earnings as six months, the appellant would be entitled to get an amount of Rs.21,000/- additionally under that head. 12. Towards extra nourishment, the Tribunal granted only an amount of Rs.1,000/-. Evidently, the appellant had been inpatient for a M.A.C.A.No.1968/2013 9 period of 26 days. We are inclined to grant Rs.100/- per day towards extra nourishment and computing the amount payable under the said head in that manner, the appellant would be entitled to get an amount of Rs.1,600/- more towards extra nourishment. 13. The nature of the injuries sustained by the appellant would definitely suggest that the dresses worn by him must have been damaged. In such circumstances, we are inclined to grant Rs.500/more towards damage to clothing. 14. The learned counsel for the appellant also contended that the Tribunal has granted only an amount of Rs.20,000/- towards pain and suffering and the same also requires appropriate modification. Having gone through the discharge summary carrying the noting of the injuries sustained by the appellant in the accident, we are of the view that the appellant can be granted an additional amount of Rs.5,000/under that head. It is awarded. In such circumstances and in view of the enhancement made under different heads as mentioned herein before, the appellant is entitled to get an additional compensation of Rs.77,364/- rounded off M.A.C.A.No.1968/2013 10 to Rs.77,400/-. The said additional amount will carry interest @ 8% per annum from the date of petition till realization. The third respondent is directed to deposit the enhanced amount with interest mentioned above, within a period of two months from the date of receipt of a copy of this judgment, failing which the amount remaining to be paid will carry interest @ 9% per annum from the date of petition. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 16/06/2016