Chandran (deceased) and others v. Biju, M. Dhamappa Gowda and Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` MONDAY, THE 7[TH] DAY OF AUGUST 2023 / 16TH SRAVANA, 1945 ``` ## **`MACA NO. 1406 OF 2009`** ``` AGAINST THE AWARD IN OPMV 6/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA DATED ``` ``` 15/10/2008 ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1CHANDRAN(*DECEASED) MUNDUPALAM, PALA P.O., KOTTAYAM DISTRICT. 2OMANA CHANDRAN (*IMPLEADED) AGED 62 YEARS W/O (LATE) CHANDRAN, THEKKEPODIMATTATHIL HOUSE, CHANDRA NAGAR, ALPARA P.O., IDUKKI. -685 606 3RATHEESH CHANDRAN (*IMPLEADED) AGED 39 YEARS S/O (LATE) CHANDRAN, THEKKEPODIMATTATHIL HOUSE, CHANDRA NAGAR, ALPARA P.O., IDUKKI-685 606 4DEEPU CHANDRAN (*IMPLEADED) AGED 37 YEARS S/O (LATE) CHANDRAN, THEKKEPODIMATTATHIL HOUSE, CHANDRA NAGAR, ALPARA P.O., IDUKKI -685 606 5DEEPA CHANDRAN (*IMPLEADED) D/O (LATE) CHANDRAN, KAAVUM PURATHU(H), PUDUPPARIYARAM P.O, THODUPUZHA, IDUKKI – 685 608(*ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED AS LEGAL HEIRS OF DECEASED APPELLANT AS PER ORDER DATED 22.03.2023 IN IA 1/2023 IN MACA 1406/2009) BY ADV SRI.S.PRASANTH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1BIJU PULICKAL HOUSE, MURIKUMPUZHA P.O., PALA. 2M.DHAMAPPA GOWDA K.K.SHENOY COMPOUND, DHAMAPATTOOR DISTRICT, KANARA SOUTH, KARNATAKA. 3THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, KANJIKUZHI P.O., KOTTAYAM. BY ADVS.SMT.K.S.SANTHI, SC, ORIENTAL INSURANCE COMPANY LTD. SRI.GEORGE CHERIAN THIRUVALLA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2023, ``` ``` THE COURT ON 07.08.2023 DELIVERED THE FOLLOWING: ``` ``` MACA NO.1406/2009 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 07[th] day of August, 2023.** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Pala (for short, ‘the Tribunal’) on 15.10.2008 in O.P(M.V) No.06/2006. The appellant is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The argument mainly advanced by the learned counsel was that the compensation stood awarded is inadequate and unreasonable. As per the pleadings raised in the Original Petition seeking compensation, while walking through Pala - Ramapuram road after stepping down from an Autorickshaw, a Motorcycle bearing Registration No.KA-21/E-4719, hit him down and thereby he sustained serious injuries. The motor accident was allegedly occurred due to the rash and negligent ``` MACA NO.1406/2009 ``` ``` 3 ``` riding of the motorcycle by its rider. A claim for `2,00,000/was also found raised. The rider, the registered owner and the insurer of the Motorcycle were arrayed in the Original Petition as respondents 1 to 3. Summons was served on all respondents but, respondent Nos.1 and 2 did not turn up to contest the . Original Petition and therefore were declared as _ex parte_ 4. 3[rd] respondent in its written statement admitted issuance of a policy for the Motorcycle bearing Registration No.KA-21/E-4719 as on date of the motor accident. It was contended that the petitioner himself has caused the motor accident to occur by walking through the road in a careless and negligent manner. Claims raised regarding the age, the occupation and the monthly income of the petitioner were also disputed. Claim of compensation is also disputed for being exorbitant in nature and devoid of any basis. 5. Petitioner himself and another person claimed to be an ocular witness were examined as PWs 1 and 2. Exts.A1 to A9 were also marked in evidence. Respondents examined two doctors as RWs 1 and 2 and marked Ext.X1 which is the case sheet of the petitioner in evidence. ``` MACA NO.1406/2009 ``` ``` 4 ``` 6. On appreciation of evidence discussed as above, the Tribunal found that the motor accident in question was occurred due to the rash and negligent riding of the Motorcycle bearing Registration No.KA-21/E-4719 by its rider, who was arrayed as the 1[st] respondent in the Original Petition. The Tribunal also found on the basis of the medical documents on record that the petitioner had sustained head injury in the motor accident and was treated at Cherupushpam Trust Hospital, Pala and Medical College Hospital, Kottayam. `15,500/- was arrived at as the compensation payable. 3[rd] respondent, the insurer of the Motorcycle was directed to pay the sum arrived at as compensation with interest at the rate of 9% per annum from 03.01.2006, the date on which the Original Petition was filed till the date of realisation alongwith `900/- as proportionate costs. 7. It is contended by Sri.S.Prasanth, the learned counsel for the petitioner that the Tribunal is not justified in fixing `3,000/- as the monthly income of the petitioner. According to him, petitioner had raised claims in the Original ``` MACA NO.1406/2009 ``` ``` 5 ``` Petition that he was a head load worker and earning `6,000/as monthly income. According to him, the Tribunal without adverting to the claims raised had fixed `3,000/- as his monthly income. 1/3[rd] was deducted therefrom in consideration of the personal expenditure of the victim and thus, `2,000/(`3,000/- x 2/3) was arrived at. It was contended that the case on hand is one where a victim of the motor accident had sought for compensation based on the injuries sustained by him and therefore, the Tribunal is erred in deducting 1/3[rd] from the monthly income towards personal expenditure while fixing it. 8. The learned counsel pointed out further that the Tribunal failed to award just and reasonable compensation under various other heads also. According to him though the certificate of an individual Doctor assessing the permanent disability of the petitioner as 12% was obtained and marked in evidence as Ext.A9, the Tribunal denied compensation in his favour under that head. The learned counsel urged that the Tribunal went wrong in doing so and sought for interference. ``` MACA NO.1406/2009 ``` ``` 6 ``` 9. The learned counsel for the petitioner filed an application as I.A No.02/2023 seeking for reception of some medical bills already produced alongwith the appeal memorandum, in additional evidence. It is found stated in the affidavit filed in support of the application that due to some reasons beyond control that the petitioner could not produce the medical bills before the Tribunal. 10. The learned counsel for the 3[rd] respondent contended on the contrary that the medical bills now produced and proposed to be marked in additional evidence were in the custody of the petitioner himself and non-production of those was due to carelessness and latches of the petitioner. Thus, he canvassed for declining reception of medical bills in additional evidence. 11. According to the learned counsel representing the 3[rd] respondent `2,000/- fixed by the Tribunal as the monthly income for the purpose of computation of compensation being reasonable, interference of any nature is totally unwarranted. It is contended furthermore that the compensation stood awarded under various other heads being adequate, ``` MACA NO.1406/2009 ``` ``` 7 ``` interference is not warranted. As against non-consideration of Ext.A9, it was contended by the learned counsel that the Doctor who had issued it was not examined before the Tribunal and therefore it cannot be found fault with for its failure to consider it and calculate compensation on its basis. 12. It is noticed that the motor accident in question was occurred in the year 2005 and the appellant claimed to be a head load worker. Therefore there is every reason to fix the monthly income in accordance with the fixation of the monthly income by the Apex Court in the case of a coolie worker in the year 2004 in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [ (2011) 13 SCC 236]. `3,000/- was fixed as the monthly income notionally and after deducting 1/3[rd] therefrom, the balance of `2,000/- was considered by the Tribunal for the purpose of calculation of compensation. The claim petition being filed seeking compensation by an injured himself and not by the legal representatives of the victim who died in the motor accident, the Tribunal is undoubtedly unjustified and erred in adopting such a method for fixing the monthly income for the ``` MACA NO.1406/2009 ``` purpose of calculation of compensation. The motor accident being occurred in the year 2005, this Court is inclined to fix `5,000/- as the monthly income and to calculate compensation on its basis. It is found from the medical documents marked in evidence that the petitioner had sustained temporal linear fracture with subarachnoid haematoma. He was treated firstly at Cherupushpam Trust Hospital, Pala and thereafter at Medical College Hospital, Kottayam. He was treated as in-patient from 14.07.2005 till 30.07.2005. Viewed in the above backdrop, compensation stood awarded by the Tribunal is found inadequate and this court is inclined to enhance it. This court finds it reasonable to award `15,000/- (`5,000/- x 3) in the place of `3,000/- stood awarded by the Tribunal towards loss of earning and thus the petitioner will get `12,000/(`15,000/- - `3,000/-) as additional compensation. 13. The petitioner who was residing at Pala at the relevant time of the motor accident had availed treatment from a local Hospital at Pala and further from Medical College Hospital, Kottayam. After undergoing in-patient treatment for ``` MACA NO.1406/2009 ``` ``` 9 ``` sometime, he continued his treatment as out patient till October, 2005. Therefore, `1,750/-, `2,000/- and `750/- are awarded as compensation in excess than the sum stood awarded by the Tribunal towards extra nourishment, bystander expenses and damages to clothing. `15,000/- more is awarded as compensation towards pain and suffering and `15,000/- is awarded towards discomforts and inconveniences. 14. Petitioner was examined by a Doctor and Ext.A9 certificate was issued certifying his permanent disability as 12%. The said Doctor was not examined before the Tribunal. For that reason the Tribunal discarded Ext.A9 and compensation towards disability was declined. 15. The petitioner had sustained head injury with sub dural hematoma in the motor accident. It took some time for the sub dural hematoma to be resolved. Inpatient treatment was availed from two different hospitals. Treatment was also continued as outpatient till October, 2005. In Ext.A9 the reasons relied on by the Doctor while arriving at 12% as the permanent disability for the petitioner were not stated. Having ``` MACA NO.1406/2009 ``` ``` 10 ``` due regard to the injuries sustained by the petitioner and treatment undergone for a prolonged time, this court finds it reasonable to award compensation also under the head permanent disability by considering 3% as his disability. 16. Petitioner being aged 53 years at the relevant time of the motor accident, the multiplier applicable is ‘11’. When compensation for disability is reassessed on the basis of the modified monthly income and 3% as the disability, `19,800/(`5,000/- x 12 x 11 x 3/100) is arrived at. 17. Medical bills are now produced alongwith an application filed as I.A.No.2/2023 seeking for reception of those in additional evidence. It is found stated there that for “reasons beyond control” of the petitioner, those were not produced earlier. The medical bills are not liable to be received for that reason. It is found that medical bills except some are in order and those are relevant for awarding just and reasonable compensation in favour of the petitioner. Therefore, I.A. No.2/2023 is allowed and the medical bills produced alongwith are received and marked in evidence as Ext.A10 series. Medical ``` MACA NO.1406/2009 ``` ``` 11 ``` Bills produced are for a sum of `7,756/-. The learned counsel for the 3[rd] respondent has drawn the attention of this Court to some of the bills which do not bear seal (received) and canvassed for discarding those from consideration. Therefore, out of the new medical bills produced, bills for `450/- are discarded and thus `7,306/- (`7,756/- - `450/-) is awarded as compensation towards medical expenses. It is found that the Tribunal has awarded `500/- towards medical expenses without the claim of the petitioner being supported by any medical bills. Therefore, `500/- stood awarded by the Tribunal is adjusted against the sum above and thus the petitioner will get `6,806/- (`7,306/- - `500/-). 18. When calculated afresh in the above manner, the petitioner will get `73,106/- [Rupees Seventy three thousand one hundred and six only] [`12,000/- + `1,750/- + `2,000/- + `750/- + `15,000/- + `15,000/- + `19,800/- + `6,806 **/-** ] as additional compensation, which amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent ``` MACA NO.1406/2009 ``` ``` 12 ``` shall pay the additional compensation now arrived at with interest accrued on it and the original compensation stood awarded by the Tribunal with interest accrued on it and costs (if not already paid), within a period of two months from the date on which a certified copy of this judgment is received in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. **MARY JOSEPH JUDGE** JJ ``` MACA NO.1406/2009 ``` ``` 13 ``` ## **`APPENDIX OF MACA 1406/2009`** ``` PETITIONER’S ANNEXURES : Annexure A1OF THE MEDICAL BILLS ARE PRODUCED HEREWITH AND MARKED FOR REFERENCE ``` //TRUE COPY// Sd/- P.S. TO JUDGE