Binu Thomas S/o. Thomas v. Smitha, Praveen K., The National Insurance Co. Ltd.

**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 30TH DAY OF JUNE 2017 / 9TH ASHADHA, 1939** **MACA.No. 522 of 2012 -----------------------** **AGAINST THE AWARD IN OP(MV) 186/2004 of MACT, MUVATTUPUZHA, DATED 20-06-2011** ## **APPELLANT/PETITIONER** **BINU THOMAS S/O.THOMAS, NJALIATH HOUSE, THIRUVAMKULAM P.O., KADUNGAMANGALAM, ERNAKULAM DISTRICT.** **BY ADVS.SRI.SOORAJ T.ELENJICKAL SRI.K.NIRMALAN** ## **RESPONDENT(S)/RESPONDENTS:** ## **1. SMITHA** **KADANTHARAYIL MATTAKOTTAYIL, 44/1476, LFC ROAD, KATTAYIL LANE, KALLOOR P.O., PIN-695 001.** ## **2. PRAVEEN.K.** **S/O.KRISHNAN NAIR, KANIANTHARAYIL (CHIRAYIL)HOUSE, NEAR VANDIPETTA, THIRUVANIYOOR P.O., THIRUVANIYOOR, PIN-682 042.** ## **3. THE NATIONAL INSURANCE CO.LTD.,** **M.G.ROAD, KOCHI-682 031.** **R3 BY ADV. SRI.RAJAN P.KALIYATH** **BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.522 of 2012 **-----------------------------------------------** Dated this the 30[th] day of June, 2017 ## **J U D G M E N T** ## Ravikumar, J. This appeal is preferred by the injured/claimant seeking enhancement of the quantum of compensation awarded in O.P. (MV)No.186 of 2004 by the Motor Accidents Claims Tribunal, Muvattupuzha, dated 20.6.2011. The appellant/claimant sustained injuries in a motor vehicle accident that occurred on 4.1.2004. He was riding the motor cycle bearing registration No.KL-7/Y-2621 with a rider on the pillion. It was knocked down by the car bearing registration No.KL-7/Q-3672 driven by the 2[nd] respondent. He sustained severe injuries and had to remain in hospital as an inpatient for a total period of 33 days. The injuries sustained by him in the accident resulted in permanent disability. He moved the aforesaid claim petition under section 166 of the Motor Vehicles Act, claiming total compensation of `2,50,000/-. The pillion rider had also sustained injuries and he filed O.P.(MV)No.161/2004 seeking M.A.C.A.No.522 of 2012 :-2-: compensation. Both the claim petitions were jointly enquired into. On the side of the appellant and the other injured/ claimant, Dr.Muhammed Ali and one M.Balakrishnan were examined as PWs.1 and 2. Exts.A1 to A17 were got marked. The respondents did not adduce any oral evidence, but got marked Ext.B1 which is a copy of certificate of policy in respect of the car involved in the accident. Ext.X1 is the hospital chart marked as a witness document. The Tribunal had assessed a total compensation payable as `1,58,433/- and passed an award for the said amount. It is seeking enhancement of the said quantum of compensation fixed, that the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the 3[rd] respondent, the insurance company. 3. It is admitted by both sides that the sole question to be decided in this appeal is whether the appellant is entitled to enhanced compensation, as claimed. The main contention of the appellant is that the erroneous fixation of the monthly income of the appellant by the Tribunal is the main contributory factor for the improper quantification of the M.A.C.A.No.522 of 2012 :-3-: amount of compensation. The learned counsel appearing for the appellant submitted that a perusal of the impugned judgment itself would reveal that the Tribunal had accepted the contention of the appellant that he was then a businessman. A careful scrutiny of paragraph 10 of the impugned award would reveal that there is substance in the said contention. However, the Tribunal had fixed the monthly income of the appellant notionally as `2,000/-. The further contention is that the compensation granted towards 'loss of earning', 'pain and suffering' and 'loss of amenities' are also on the lower side. Per contra, the learned counsel appearing for the 3[rd] respondent insurance company contended that a perusal of the schedule of compensation given in the impugned judgment itself would reveal that the appellant was adequately compensated for the injuries sustained by him in the accident. Hence, no appellate interference is called for, it is submitted. 4. We will firstly consider the question whether the fixation of the monthly income by the Tribunal invites interference. True that, the Tribunal on appreciation of the evidence arrived at the conclusion that the appellant was a businessman at the relevant period. At the same time, M.A.C.A.No.522 of 2012 :-4-: disregarding the said conclusion and also the fact that the accident had occurred in the year 2004, the Tribunal had fixed the monthly income notionally only at `2,000/-. Evidently, the appellant had failed to adduce any cogent evidence to establish his monthly income. In such circumstances, certainly the Tribunal is justified in fixing the monthly income notionally. However, the fixation of the monthly income notionally invites interference as it is too low. In the absence of evidence regarding the monthly income, taking into account the fact that even in the case of a coolie, who met with an accident in the year 2004, the Honourable Apex Court had fixed the monthly income in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236]** as `4,500/- and also taking note of the fact that the appellant had claimed only `5,000/- as the monthly income, the monthly income has to be fixed. He was then aged 22 years. In such circumstances, we are of the view that it is only reasonable to fix the monthly income, of the appellant as `4,500/-. Though the learned counsel for the appellant contended that the Tribunal went wrong in assessing permanent disability and also in declining to accept the certification of permanent disability M.A.C.A.No.522 of 2012 :-5-: in Ext.A13, on a close scrutiny of the discussions made in detail in the impugned judgment, we do not find any reason to sustain the said contention. The Tribunal took note of the fact that while being examined, the doctor who issued Ext.A13 certificate, as PW1, deposed that he had not made a proper assessment of permanent disability after conducting the prescribed test in Mc Brides scale. In such circumstances, the Tribunal is virtually justified in showing disinclination to accept the entire extent of permanent disability certified under Ext.A13. As per the same, PW1 assessed the permanent disability of the appellant as 15% and as noticed hereinbefore, due to the aforesaid reasons, the Tribunal had taken the extent of disability as 10%. We do not find any reason to interfere with the assessment of permanent disability made by the Tribunal, in the said circumstances. The Tribunal took the multiplier as '17'. Though in the claim petition, the appellant/claimant had claimed that he was aged 23 years at the time of the accident, the Tribunal, on perusing the records held that the age of the appellant at the time of the accident was 22 years. Be it 22 or 23 years, it would have an impact in the matter of adoption of multiplier because for the age group M.A.C.A.No.522 of 2012 :-6-: of 21-25 years, the multiplier applicable is '18' as per the schedule given in the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802]** . In such circumstances, an assessment of compensation for permanent disability has to be made by substituting the re-fixed monthly income and the multiplier. According to us, in view of the extent of permanent disability, as mentioned hereinbefore, the Tribunal was not justified in granting compensation for loss of earning capacity, especially when the doctor, who issued Ext.A13, himself deposed while being examined as PW1 that what he had assessed was physical disability and not occupational disability. In such circumstances, the amount payable under the said head is assessed as `91,800/(4,500x12x17x10/100). Towards compensation for 'loss of earning capacity', the Tribunal had already granted an amount of `40,800/-. Hence, after deducting the said amount, the appellant is entitled to get an amount of ` **51,000** /- under the said head. 5. In view of the re-fixation of the monthly income, the appellant is entitled to get proportionate enhancement of compensation granted under the head 'loss of earning'. The M.A.C.A.No.522 of 2012 :-7-: Tribunal for that purpose had taken the period of loss of earning as 5 months. We do not find any reason to interfere with the fixation of the period of loss of earning. Since we have already fixed the monthly income of the appellant as `4,500/-, the appellant is entitled to get an amount of `22,500/- as compensation under the head 'loss of earning' and after deducting the amount already granted by the Tribunal, the appellant is entitled to get an amount of ` **12,500** /- additionally under the head 'loss of earning'. 6. Ext.A7 wound certificate issued from R.C.M. Hi-Tech Multi Specialty Hospital, Tripunithura, would reveal that he sustained Type III B open comminuted fracture on both bones of the right leg. It was also found that the wound over the fracture site was heavily contaminated and lacerated wound over the shin and ankle were also in bad shape. Taking note of the nature of injuries sustained by the appellant, it is evident that he must have suffered severe pain owing to the injuries sustained in the accident. Hence, we are inclined to grant a sum of ` **5,000** /- additionally on that count. 7. Towards 'loss of amenities', the Tribunal had granted an amount of `12,000/-. Taking into account the nature of M.A.C.A.No.522 of 2012 :-8-: injuries and the period of hospitalisation, we are inclined to grant an amount of `20,000/- and thereby, the appellant is entitled to get an amount of ` **8,000** /- more under that head. In the light of the enhancement made by us, the appellant will be entitled to get a total additional compensation of ` **76,500** /- (51,000+12,500+5,000+8,000). The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. In view of the absence of any dispute regarding the liability to indemnify the insured owner, the 3[rd] respondent is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a certified copy of this judgment. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/3.7.17 //True copy// P.A.to Judge