Binny Veedu v. Divisional Manager, National Insurance Co. Ltd., Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943** **MACA NO. 955 OF 2011** **AGAINST THE AWARD DATED 24.03.2010 IN OP(MV)NO.1539/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM.** ## **APPELLANT/PETITIONER:** **BINNY VEEDU, INCHAVILA, THRIKKARUVA,KOLLAM.** **BY ADV SRI.PRATHEESH.P** ## **RESPONDENT/3RD RESPONDENT:** **THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., KOLLAM-691001.** **BY ADV SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.955/2011 -:2:- Dated this the 2[nd] day of September, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P.(MV) No.1539/2005 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondent in the appeal was the third respondent before the Tribunal. As the respondent had admitted the insurance policy, the appellant has not impleaded respondent Nos.1 and 2 before the Tribunal. Therefore, the parties are, for the sake of convenience, referred to as per their status in the claim petition before the Tribunal. 2. The petitioner 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 13.08.2005. 3. The concise facts, relevant for the determination of the appeal, are: On 13.08.2005, while the petitioner was travelling on a motorcycle bearing registration No.KL-2/G 1644, through the M.A.C.A.No.955/2011 -:3:- Anchalummoodu-Perumon road, when he reached in front of TNN Hospital, a goods auto rickshaw bearing registration No.KL-2/S 3755, driven by the second respondent in a rash and negligent manner, hit the motorcycle. The petitioner was thrown on the ground and sustained serious head a injuries, including fracture on his skull. He was taken to the District Hospital, Kollam and thereafter to the KIMS Hospital, Kollam. He was treated as an inpatient in two spells for a period of 34 days. The petitioner was a able bodied person and was a contractor by profession and earning a monthly income of Rs.4,500/-. The auto rickshaw was owned by the first respondent and insured with the third respondent. Hence, the petitioner claimed a total amount of Rs.4,00,000/- as compensation from the respondents. 4. The respondent Nos.1 and 2 did not contest the proceedings and were set _ex parte_ . 5. The third respondent filed a written M.A.C.A.No.955/2011 -:4:- statement admitting that the auto rickshaw had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the petitioner, who rode the motorcycle on the wrong side of the road. The third respondent also disputed the age, income and occupation of the petitioner. It was also contended that the claim put forth by the petitioner was highly excessive and exorbitant. 6. The petitioner examined himself as PW1 and the Doctor who treated him as PW2 and marked Exts.A1 to A20 in evidence. The respondents did not adduce any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to realise an amount of Rs.3,14,300/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit and proportionate costs from the third respondent. 8. Dissatisfied with the quantum of M.A.C.A.No.955/2011 -:5:- compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. Pratheesh.P, the learned counsel appearing for the appellant/petitioner and Smt. Sarah Salvy, the learned counsel appearing for the third respondent before the Tribunal/insurer. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Liability and negligence:** 11. Ext.A4 chargesheet filed by the Anchalummoodu Police, Kollam in Crime No.293/2005 clearly proves that the accident occurred due to negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the auto rickshaw. Therefore, it is the third respondent who is to indemnify the liability of the first respondent arising M.A.C.A.No.955/2011 -:6:- out of the accident. ## **Notional income:** 12. The petitioner had claimed that he was a contractor by profession and earning a monthly income of Rs.4,500/-. Later, it was contended that the petitioner was a videographer by profession. However, in the oral testimony of the petitioner, he admitted that he was a subcontractor. _Dehors_ the contradiction, the fact remains that the petitioner had claimed only an income of Rs.4,500/- per month. 13. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 14. Following the parameters in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2005, I am of the opinion that the M.A.C.A.No.955/2011 -:7:- petitioner's notional income can safely be fixed at Rs.4,500/- per month as claimed in the claim petition. ## **Loss due to disability:** 15. It is proved through Ext.A9 wound certificate that, the petitioner sustained a lacerated wound on his (R) forehead and compound fracture on his right leg. As per Ext.A14 discharge summary, it is proved that the petitioner had a compound depressed fracture fronto parietal temporal and the following clinical features namely; O/E pupils (R) could not be seen, normal size x exertion, contaminated lacerated wound with depressed fracture and communicating brain tissue (R) fronto parietal area, small fragments penetrating into the brain, fragments missing. The investigation revealed that the petitioner has fracture (R) maxilla and Hemiplegia (+), (R) vision absent and (R) fracture femur lower[1] /3 rd -Inter locking done and fracture fibula (R). Similarly, the C.T. Scan revealed depressed fracture of the right parietal temporal area M.A.C.A.No.955/2011 -:8:- with brain oedema, brain parenchymal contusion(+), Pneumocephalus. Later, the petitioner was admitted in the KIMS Hospital and was discharged on 24.09.2005 as evidenced by Ext.A15, wherein it was again stated that the petitioner had a head injury and fracture (L) LL, Ortho and Neuro surgery done and admitted for SSG raw area (R) leg. 16. In order to substantiate that the petitioner had a permanent disability, he produced Ext.A11 treatment certificate issued by the Assistant Professor in Orthopaedics, Medical College Hospital, Thiruvananthapuram, who certified that the petitioner has disability due to loss of vision which has to be assessed separately. The petitioner's disability was assessed at 47%, as per the Mc Bride Scale. The petitioner also produced Ext.A20 Standing Disability Assessment Board Certificate issued by a five member Medical Board, wherein the petitioner's permanent disability was assessed at 40% due to the optic atrophy M.A.C.A.No.955/2011 -:9:- ## (RE) and Macula degeneration (LE). 17. The Tribunal, after analysing the above documents, particularly Exts.A11 and A20 medical certificates, came to a conclusion that because the police had not certified that the petitioner had any ophthalmologic problem in the First Information Report(FIR) and the final report and also the said injury was not reflected in Ext.A9 wound certificate, the petitioner's disability has to be scaled down to 25%. 18. In No.12 in _**v.**_ paragraph _**Rajkumar Ajayakumar**_ [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, if the Tribunal is not satisfied with the medical evidence produced by the claimant, then it is for 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 the disability. Similarly, a Division M.A.C.A.No.955/2011 -:10:- Bench of this Court in _**Karunakaran v. Abdul Rasheed**_ [2015 (4) KLT 465], has also held that there is no legal impediment in a Doctor who has not treated the injured certifying the disability of the injured. 19. In the instant case, Exts.A11 and A20 documents were marked by the Tribunal without any objection from the respondents. The said documents were also not marked subject to proof. Therefore, it is to be assumed that the documents were marked with the consent of the parties. 20. Again in paragraph No.16 of _**Rajkumar**_ (supra), the Hon'ble Supreme Court has held that in cases where the certificates are not contested, they can be marked with consent, and thereby, dispensing with oral evidence. 21. In view of the emphatic declaration of law by the Honourable Supreme Court and this Court in the above-cited decisions, I am of the view that the finding of the Tribunal that because the police had not stated M.A.C.A.No.955/2011 -:11:- that the petitioner had an ophthalmologic injury in the FIR and final report, the disability certified in the above-mentioned documents cannot be accepted is _per se_ erroneous and perverse. 22. As Ext.A11 has been issued an by Orthopaedic Surgeon, I decline to accept the percentage of disability assessed in Ext.A11, instead, in Ext.A20 disability certificate issued by the Medical Board which consist of an Ophthalmologist and an ENT Surgeon and three other specialist doctors, I am of the opinion that their assessment at 40% is to only be accepted as the functional disability of the petitioner. Therefore, I confirm the findings of the Standing Disability Assessment Board in Ext.A20 assessing the petitioner's disability at 40%. 23. In view of the re-fixation of the monthly income of the petitioner at Rs.4,500/-, his disability at 40% and the relevant multiplier being '16', I re-fix the compensation for 'loss of disability' at Rs.3,45,600/- M.A.C.A.No.955/2011 -:12:- instead of Rs.1,02,000/- fixed by the Tribunal. ## **Loss of earnings:** 24. It is proved and accepted by the Tribunal that the petitioner was indisposed for a period of six months. I accept the finding of the Tribunal in this regard. In view of the re-fixation of the notional income of the petitioner at Rs.4,500/- per month, I re-fix the compensation for 'loss of earnings' at Rs.27,000/- instead of Rs.12,000/- fixed by the Tribunal. ## **Loss of amenities** 25. The petitioner had claimed an amount of Rs.20,000/- towards compensation for 'loss of amenities'. The Tribunal fixed the compensation for 'loss of amenities' at Rs.5,000/-. Taking into account the serious injuries that the petitioner had sustained and that he was indisposed for a period of six months and he has suffered a permanent disability of 40%, I am of the opinion that the petitioner is entitled for M.A.C.A.No.955/2011 -:13:- compensation for 'loss of amenities' at Rs.20,000/- as claimed in the claim petition. ## **Bystander expenses:** 26. It is proved that the appellant was treated as an inpatient for a period of 34 days. However, the Tribunal awarded only an amount of Rs.5,000/towards 'bystander expenses', which according to me, is on the lower side. 27. Keeping in mind the fact that the accident occurred in the year 2005, I hold that a reasonable amount of Rs.250/- per day can be fixed for 'bystander expenses'. Accordingly, I re-fix the compensation for 'bystander expenses' at Rs.250/- per day for 34 days, amounting to Rs.8,500/-. 28. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 29. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to M.A.C.A.No.955/2011 -:14:- in the afore-cited precedents, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|12,000|25,000| |2|Transport<br>to<br>Hospital|2,000|2,000| |3|Extra nourishment|2,000|2,000| |4|Damage<br>to<br>Clothing<br>and<br>articles|500|500| |5|Bystander<br>expenses|5,000|8,500| |6|Medical expenses|1,60,706|1,60,706| |7|Pain and sufferings|25,000|25,000| |8|Loss of amenities|5,000|20,000| |9|Loss<br>due<br>to<br>disability|1,02,000|3,45,600| ||**Total**|**3,14,206**<br>Rounded as<br>Rs.3,14,300/-|**5,89,306**<br>Rounded as<br>Rs.5,89,300/-| ||||| M.A.C.A.No.955/2011 -:15:- 30. Even though the petitioner had claimed a total compensation of Rs.4,00,000/-, in the light of the law laid down by the Honourable Supreme Court in _**Nagappa v. Gurudayal Singh**_ [2003 (1) KLT 115 SC] and _**Rajesh v. Rajbir Singh**_ [2013 (3) KLT 89 SC] that there is no legal impediment or restriction in awarding more compensation than what is claimed in the claim petition, as what is contemplated under the Motor Vehicles Act is just and reasonable compensation., I award the petitioner a further amount of Rs.2,75,000/- and a total compensation of Rs.5,89,300, which is more than the amount claimed in the claim petition. In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.2,75,000/-** (Rupees two lakh seventy five thousand) with interest at the rate of 7.5% per annum from the date of petition till the date of payment, after M.A.C.A.No.955/2011 -:16:- deducting interest for a period of 272 days i.e., the period of delay in preferring this appeal and as directed by this Court on 19.03.2021 in C.M.Appln.No.1749/2011, and a cost of Rs.3,000/-. The respondent/insurer is directed to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant/petitioner, after deducting his liability, if any, towards court fee and in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge