Bineesh v. Preethakumary Panchamiyil and others (MACA No. 1357 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 4TH DAY OF AUGUST 2017/13TH SRAVANA, 1939** ## **MACA.No. 1357 of 2010 ( )** **-------------------------AGAINST THE AWARD IN OPMV 1164/2007 of M.A.C.T.,KOLLAM DATED 28-01-2010 --------------------------------------------------------** **APPELLANT(S)/PETITIONER :** **-------------------------------------------** **BINEESH,AGED 31,S/O.SASIKUMARANCHARY, VIPIN NIKETH,KADAPPA,MYNAGAPPALLY,KOLLAM.** ## **BY ADV. SRI.S.PRASANTH** **RESPONDENT(S)/RESPONDENTS :** **---------------------------------------------------** ## **1. PREETHAKUMARY,PANCHAMIYIL,** **KALARI,PANMANA,CHAVARA PO,KOLLAM. 691 583** **2. GIREESHKUMAR,S/O.GANESAN PILLAI,** - **PALLIYEZHATH KIZHAKKATHIL,, THEKKUMBHAGAM,KARUNAGAPPALLY. 690 518** ## **3. THE MANAGING DIRECTOR, ICIC LOMBARD** - **MOTOR INSURANCE CORPORATE OFFICE, ZENITH HOUSE,, KESAVA RAO GHADE MARG,MAHALEKSHMI MUMBAI. 400 001** **4. THE MANAGER, ICIC LOMBARD MOTOR** - **INSURANCE,3RD FLOOR,KANNAKI ESTATE,MARINE, DRIVE,SHANMUGHAM ROAD, COCHIN. 682 035** **5. THE MANAGING DIRECTOR, KERALA STATE** - **ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 695 001** **R1 BY ADV. SRI.N.K.KARNIS R4 BY ADV. SRI.LATHEESH SEBASTIAN** **R5 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **R5 BY ADV. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VS** ## **C.T.RAVIKUMAR & ANIL.K.NARENDRAN, JJ. ============================= M.A.C.A. No.1357 of 2010** **============================ Dated this the 4[th] day of August, 2017** ## **JUDGMENT** ## **ANIL.K.NARENDRAN, J.** This appeal arose out of the award passed by the Motor Accidents Claims Tribunal, Kollam dated 28.01.2010 in O.P.(MV)No.1164/2007, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident which occurred on 04.04.2007, while he was travelling in an ambulance van bearing Reg.No.KL-23/5083. At the place of accident, on account of the rash and negligent driving of the van by the second respondent driver, it hit against a K.S.R.T.C. bus coming from the opposite direction and the appellant/claimant was thrown out of the van and he sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the second respondent driver, claim petition was filed before _M.A.C.A. No.1357 of 2010 -2-_ the Tribunal, claiming a total compensation of Rs.12,00,000/- under different heads. The first respondent is the owner of the ambulance van and the third and fourth respondents are the Managing Director and the Manager of the insurance company, respectively. The fifth respondent is the Managing Director of the K.S.R.T.C., the owner of the bus. 2. Before the Tribunal, Exts.A1 to A16 were marked on the side of the appellant/claimant and he was examined as PW1. Ext.C1 is the disability certificate. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the ambulance van by the second respondent driver. Since the said vehicle was covered by a valid insurance policy, the third and the forth respondents, namely, the Managing Director and the Manager of the insurance company was held liable to indemnify the first respondent _M.A.C.A. No.1357 of 2010 -3-_ owner. Under different heads, the Tribunal awarded a total compensation of Rs.2,72,221/-, which was rounded to Rs.2,72,300/- and the insurer was directed to deposit the said amount before the Tribunal with interest at the rate of 7.5% per annum from 14.09.2007 till realisation with proportionate cost. It was also made clear that if the said amount is not deposited within three months from the date of receipt of a copy of the award, the appellant/claimant will be entitled to get 9% interest from the date of award till realisation. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We have heard the learned counsel for the appellant/claimant and also the learned counsel for respondents 3 and 4, namely, the Managing Director and Manager of the insurance company. 6. The sole issue that arises for consideration in this appeal as to whether the appellant/claimant is entitled for enhancement of the compensation already awarded by _M.A.C.A. No.1357 of 2010_ _-4-_ the Tribunal under different heads. 7. The accident is of the year 2007 and at the time of accident, the appellant/claimant was aged 28 years. He was earning a monthly income of Rs.5,000/- as a driver. In order to substantiate the aforesaid claim, he produced Ext.A13 copy of his driving licence and also Ext.A15 salary certificate. However, other than the oral testimony of the appellant/claimant as PW1, there was no reliable materials before the Tribunal to fix his monthly income. The appellant/claimant has also not chosen to prove Ext.A15 salary certificate by examining the employer concerned. It was in the said circumstances that the Tribunal took the monthly income notionally as Rs.2,000/-, for the purpose of assessing compensation under different heads. 8. In _**Ramachandrappa v. Manager Royal Sundaram Alliance Insurance Company Ltd [2011 (13)SCC 236]**_ , the Apex Court notionally refixed the monthly income of a Coolie, who met with a motor accident in the year 2004 at Rs.4,500/-. In the instant _M.A.C.A. No.1357 of 2010_ _-5-_ case, the accident is of the year 2007 and at the time of accident, the appellant/claimant was an able bodied person, aged 28 years. Considering the economic conditions prevailing as on the date of accident, we find no reason to disbelieve his version that as on the date of accident, he was earning a monthly income of Rs.5,000/-. In such circumstances, we deem it appropriate to refix the monthly income of the appellant/claimant notionally at Rs.5,000/-, for the purpose of assessing compensation under different heads. 9. The injuries sustained by the appellant/claimant as borne out from Ext.A6 treatment certificate reads thus:- “Multiple facial bone fracture, (R) eye loss, Anterior Cranial fossa fracture, Depressed fracture facial bones, Fracture Acetabulam, Posterior dislocation of hip” The injuries noted in Ext.A7 discharge card reads thus, “Multiple facial bone fracture, (R) eye loss, disfigurement (+), posterior dislocation (L) hip, depressed fracture facial skeletal ACF fracture. _M.A.C.A. No.1357 of 2010_ _-6-_ For the injuries sustained in the accident, the appellant/claimant had undergone inpatient treatment for a period of 35 days. 12. In Ext.C1 disability certificate, the Medical Board at the District hospital assessed a permanent disability of 45%. The Tribunal, in the impugned award, found that it is not discernible from Ext.C1 disability certificate as to whether the assessment is made as per Mc Bride Scale. It is also not discernible from the said disability certificate as to whether it is visual disability or body disability or partial disability or permanent disability. After seeing the appellant/claimant, and going through the medical records, the Tribunal took the percentage of disability as 30% for the purpose of assessing compensation under different heads. The Tribunal has stated valid reasons in the impugned award to scale down the percentage of disability to 30%. In such circumstances, we proceed with reassessment of the compensation under different heads, taking the permanent disability as 30%, as adopted by the Tribunal in the impugned award. _M.A.C.A. No.1357 of 2010_ _-7-_ ## 13. The compensation awarded by the Tribunal under different heads reads thus:- |**_PART - II_**|| |---|---| |(a)Loss of earningfor 6 months|Rs.18,000/-| |(b)Partial loss of earning|Nil| |(c)Transport to the Hospital|Rs.3,000/-| |(d)Extra nourishment|Rs.2,000/-| |(e)Damage to Clothingand Articles|Rs.500/-| |(f)Others – Bystander expenses|Rs.4,000/-| |(g)Medical expenses|Rs.65,121/-| ||| |**_PART - II_**|| |(h)Compensation for Pain and Suffering|Rs.25,000/-| |(i) Compensation for Continuing for Permanent<br>disability (Rs.2,000x12x18x30/100)|Rs.1,29,600/-| |(j) Compensation for the Loss of amenities in<br>life|Rs.10,000/-| |(k)Compensation for disfiguration|Rs.15,000/-| |**_Total_**|Rs.2,72,221/- rounded as<br>**Rs.2,72,300/-**(Rupees Two<br>lakhs seventy two thousand<br>and three hundred only)| 14. Towards loss of earning, the Tribunal awarded a sum of Rs.18,000/-, at the rate of Rs.2,000/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, as borne out from medical records, the loss of earning granted by the Tribunal for a period of 6 months warrants no interference. Since we have already refixed the _M.A.C.A. No.1357 of 2010 -8-_ monthly income of the appellant/claimant at Rs.5,000/-, the compensation under this head is reworked as Rs.30,000/-(5,000x6), resulting an additional compensation of **Rs.12,000/-.** 15. Towards extra nourishment and bystander expenses the Tribunal awarded a sum of Rs.2,000/- and Rs.4,000/- respectively. As borne out from the medical records, as a result of the injuries sustained in the accident, the appellant/claimant had undergone inpatient treatment for a period of 35 days. Since the accident is of the year 2007, he is entitled for compensation under the head extra nourishment at the rate of Rs.100/- per day and that under the head bystander expenses at the rate of Rs.200/- per day. In the result, the compensation under the head extra nourishment is refixed as Rs.3,500/(100x35), resulting an additional compensation of **Rs.1,500/-.** Similarly, compensation under the head bystander expenses is refixed as Rs.7,000/- (200x35), resulting an additional compensation of **Rs.3,000/-.** 16. Towards pain and suffering the Tribunal _M.A.C.A. No.1357 of 2010_ _-9-_ awarded a sum of Rs.25,000/-. Considering the nature of the injuries sustained and the treatment the appellant/claimant had undergone, as borne out from the medical records, the compensation awarded under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. 17. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,29,600/- taking the monthly income as Rs.2,000/-, applying a multiplier of 18 and percentage of disability as 30%. Since the appellant/claimant was aged 28 years, the proper multiplier applicable is 17, in view of the law laid down by the Apex Court in **Sarala Varma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)]. Since we have already refixed the monthly income of the appellant/claimant notionally at Rs.5,000/-, the compensation under the head permanent disability is reworked at Rs.3,06,000/-(5,000x12x17x30/200), resulting an additional compensation of **Rs.1,76,400/-.** 18. Towards loss of amenities, the Tribunal awarded _M.A.C.A. No.1357 of 2010_ _-10-_ a sum of Rs.10,000/-. Considering the nature of the injuries sustained and the disability that had arisen therefrom, as borne out from medical records, we deem it appropriate to refix the compensation under this head as Rs.30,000/-, resulting an additional compensation of **Rs.20,000/-.** 19. Towards disfigurement, the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of the injuries sustained and the disability noted in Ext.C1 disability certificate, which has resulted in disfigurement, we find that the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. In the result, the appellant/claimant is entitled for an additional compensation of **Rs.2,12,900/-** (Rupees Two lakhs twelve thousand and nine hundred only) (12,000+1,500+3,000+1,76,400+20,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the offending vehicle is not in dispute, the _M.A.C.A. No.1357 of 2010_ _-11-_ third and the fourth respondents shall deposit the said amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The appeal is disposed of. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL.K.NARENDRAN, JUDGE** VS /TRUE COPY/ PA TO JUDGE