Chithambaram S S/o Sadaiappa Gowunder v. John V. D, Shibu Thomas & The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943** **MACA NO. 2843 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 37/2003 OF SPECIAL COURT FOR EC** **ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR** ## **APPELLANT/PETITIONER:** **CHITHAMBARAM S S/O. SADAIAPPA GOWUNDER, 501, RAJESH NIVAS,, VELAYA NAGAR 11, KUMARANELLUR, VADAKKANCHERRY,, TRICHUR-680 590.** **BY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENT/RESPONDENTS:** |**1**|**JOHN.V.D**| |---|---| ||**VETTIYEDATHPARAMBIL HOUSE, MEPPADAM, CHELAKKARA.**| |**2**|**SHIBU THOMAS**| ||**PARASSERIL HOUSE, MANJOOR SOUTH P.O.,, KOTTAYAM-686**| ||**001.**| |**3**|**THE NEW INDIA ASSURANCE CO. LTD.**| ||**MUNDAPARAMBIL CHAMBERS, M.C.ROAD,, MUVATTUPUZHA-686**| ||**661.**| ||**BY ADV SRI.PMM.NAJEEB KHAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2843 of 2009 **2** ## **M.R.ANITHA, J.** ## **----------------------------------------M.A.C.A No. 2843 of 2009** ## **----------------------------------------** Dated this the 7[th] day of January, 2022 ## **JUDGMENT** The appellant is the claimant in O.P.M.V No.37/2003 on the file of Motor Accidents Claims Tribunal, Thrissur. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act). 2. It is alleged that on 03.12.2002 at about 4.15 p.m., while the appellant/claimant (here in after be referred as claimant) was riding a motor cycle bearing No.KL8/M 7055 and reached at Ottupara, a Maruti van bearing No.KL5/L 1315 which came from a pocket road and hit the motor cycle ridden by the claimant, thereby the claimant sustained serious injuries. Immediately he was taken to Ganga Hospital, Coimbatore and there undergone treatment for 7 days. It is alleged that the accident was happened due to the rash and M.A.C.A No. 2843 of 2009 **3** negligent driving of the 1[st] respondent, the driver of the offending vehicle. The claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under various heads. 2[nd] respondent is the owner of the offending vehicle. 3[rd] respondent is the insurer. 3. Before the Tribunal, the respondents 1 and 3 filed separate written statement and the 2[nd] respondent remained ex parte. 4. The 1[st] respondent denied the allegation that the accident happened due to the rash and negligent driving from his part. According to him, the accident happened due to the rash and negligent riding of motor cylce by the claimant. The age and occupation of the claimant was disputed and amounts claimed under various heads also disputed. 5. The 3[rd] respondent filed written statement admitting the policy coverage with respect to offending vehicle bearing Registration No.KL5/L 1315. It is also contended that the accident happened due to the negligence of the claimant M.A.C.A No. 2843 of 2009 **4** himself. The claimant was put to strict proof regarding the age, occupation and the injuries sustained. It is further contended that the 1[st] respondent does not have any valid driving license to drive a vehicle. Hence the liability of the 3[rd] respondent is disputed. 6. PW1 and PW2 were examined and Ext.A1 to A13 were marked from the side of the claimant. Ext.B1 copy of the policy produced from the side of the respondent. 7. After hearing both sides, under various heads, the Tribunal awarded a total compensation of Rs. 75,100/-, together with interest at the rate of 7% per annum. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant is before this Court in this appeal. According to the learned counsel for the claimant, monthly income claimed is Rs.4,000/- per month. But the monthly income notionally has been fixed as Rs.2,000/-. It is very low. Doctor who issued the disability certificate is examined as PW2. Disability certificate is marked as Ext.A11. M.A.C.A No. 2843 of 2009 **5** In spite of the same, the Tribunal refused to accept the disability and no amount was awarded under that head. He claims compensation towards future loss of earning power as per the disability certificate and the evidence of PW2. **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620]** was relied on in this regard. Further he claimed enhancement of compensation under the heads of Expenses for bystander, extra nourishment and pain and suffering as well as loss of amenities. 9. The learned counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 10. To prove the income of the claimant, he was examined as PW1. He was alleged to be a financier and claims that his monthly income is Rs.4,000/-. During cross examination, monthly income claimed is challenged, on the ground that no documents were produced to prove the monthly income of the claimant. M.A.C.A No. 2843 of 2009 **6** 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground M.A.C.A No. 2843 of 2009 **7** realities prevailing at the relevant point of time. 12. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganized sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 13. According to the claimant, he was a financier. He has not produced any document to prove his income. For M.A.C.A No. 2843 of 2009 **8** that reason, the Tribunal fixed his notional income as Rs.2,000/-. In view of the facts and circumstances, and the dictum laid down in Ramachandrappa and Syed Sadiq, I am of the view that income of the claimant can be taken as Rs.4,000/- per month. 14. With regard to the permanent disability, the learned counsel relies upon the evidence of PW2, the Doctor as well as Ext.A11 disability certificate. In page No.7 of the judgment of the Tribunal, while discussing the evidence of PW2 and the disability certificate, it is found that the evidence of PW2 cannot be accepted for the reason that PW1, the injured has contradicted him. PW2 stated that PW1 cannot lift his upper limb, it is bit painful. Going through the evidence of PW1, no question with regard to either disability or the inconvenience in lifting hand etc. is seen to have been put to him. So finding of the Tribunal that PW1 contradicted PW2 is not appear to be correct. PW2 Doctor who issued Ext.A11 certificate is an Orthopaedic Consultant. It is true that he has M.A.C.A No. 2843 of 2009 **9** not treated the patient but examined him on 02.07.2006 and gave evidence in tune with the certificate to the effect that he has a permanent disability of 50% and a whole body disability of 12.75%. If at all, the Tribunal has any variance of opinions with medical evidence, he ought to have referred the patient to the Medical Board. In this context, the learned counsel relies on the direction contained in paragraph 12 of the judgment in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620]** which read thus: “ _The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for crossexamination with reference to the certificate. If the Tribunal is not_ M.A.C.A No. 2843 of 2009 **10** _satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed Local Hospital/Medical colleges) and refer the claimant to such Medical Board for assessment of the disability.”_ 15. Therefore, the approach of the Tribunal in discarding the evidence of PW2 and Ext.A11 disability certificate issued by the PW2 is not in accordance with law. The injuries sustained by the claimant is comminuted fracture shaft of left humerus. Wound certificate is marked as Annexure A2, which would show that he has comminuted fracture shaft of left humerus and the doctor also stated that the injury is grievous one. Annexure A12 is the discharge summery would prove that he had under gone impatient treatment from 03.12.2002 to 09.12.2002 in Ganga Hospital, Coimbatore. It has further come out that he had under gone surgery for open reduction and internal fixation with bone grafting. He had gone to Coimbatore for further follow up treatments. In view of the Medical records and evidence of PW2, I do not find any M.A.C.A No. 2843 of 2009 **11** reason for refusing to accept the disability Certificate issued by the Doctor. Hence I accept the whole body disability at 12.75%. 16. Monthly income of the petitioner has already been fixed as Rs.4,000/- and the petitioner was 51 years old at the time of accident. Petitioner's claim was Rs.75,000/towards compensation for permanent disability. In para No.44 of **National Insurance Company Limited v. Pranay Sethi** **and Ors (2017 (4) KLT 662),** it has been held that as far as multiplier is concerned, the claims Tribunal and the courts shall be guided by the principles in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** . 17. The claimant in this case was 51 years old at the time of accident. So the proper multiplier to be applied as held in **Sarla Verma v.** followed by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi** **and Ors (2017 (4) KLT 662)** is '11'. So in view of the disability certificate and evidence of PW1 and PW2, the loss of future earning power can be calculated as 4,000 x 11 x 12 x M.A.C.A No. 2843 of 2009 **12** ## 12.75/100, it will come to Rs. 67,320/-. 18. The learned counsel would contend that the loss of earnings was awarded only for two months by the Tribunal. Claimant undergone prolonged treatment along with surgery. PW1 deposed that he has been under bed rest for five months and undergone treatment for nine months. Therefore, loss of earnings for six months can be granted @ Rs.4,000 x 6 = 24,000. Amount already awarded is to be deducted that ie 24,000-4000, it will come to 20,000. 19. Towards the transportation expense, there was a claim of Rs.10,000/- by the claimant but the Tribunal awarded Rs.2,000/- only. The medical records and the discharge certificate produced from the side of the petitioner would prove that the treatment was at Coimbatore. He had been to Coimbatore on three occasions as per records. Therefore, amount towards the transportation expenses is refixed as Rs.4,000/-. Deducting the amount already granted, the enhanced amount is 4,000-2,000=2,000. Towards the M.A.C.A No. 2843 of 2009 **13** bystander expenses amount of Rs.700 alone was granted. According to the learned counsel, it is very low. He had under taken impatient treatment for 7 days. Rs.200 per day ought to have been calculated towards the bystander expenses. Hence, the petitioner is entitled for enhanced compensation of Rs.700/- under that head (Rs.1400-700). 20. The learned counsel would further contend that towards pain and sufferings, there was a claim of Rs.60,000/- but only Rs.10,000/- was awarded. In view of the treatment and the surgery undergone by the petitioner, I am of the view that an amount of Rs.20,000/- can be fixed towards the pain and suffering. Deducting the amount already awarded, the balance would be 20,000-10,000=10,000/-. Towards the extra nourishment, the amount awarded by the Tribunal according to the learned counsel is very low. In view of the injuries sustained, under the head of extra nourishment an amount of Rs.1000/- was awarded by the Tribunal. In view of the facts and circumstances, I am of the view that M.A.C.A No. 2843 of 2009 **14** Rs.1,000/- can be further awarded under the head of extra nourishment. So in total the enhancement amount will be Rs.1,01,020/- (Rupees one lakh one thousand and twenty only)(67,320+20,000+2000+700+10,000+1000). In the result, appeal is allowed. Petitioner is awarded an enhanced compensation of Rs.1,01,020/-. It is also seen from the records that there was delay of 827 days in filing the appeal. Along with appeal I.A.No.1/2009 was filed to condone the delay of 827 days. That was allowed with a direction that the said period will be excluded from computing interest if the appeal is allowed ultimately. Hence, interest for the said period of 827 days is excluded. There is no order as to costs. SD/- **M.R.ANITHA** **JUDGE** rps/