Dasan @ K.A. Das v. Sudhakaran M.P. and Alex J Kavanal and United India Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943 ``` ``` MACA NO. 898 OF 2012 ``` ``` AGAINST THE AWARD DATED 06.01.2012 IN OP(MV)NO.151/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI ``` ## `APPELLANT/PETITIONER:` ``` DASAN @ K.A.DAS, AGED 45 YEARS, S/O.AYYAPPAN, KUTTIKKATTUTHODIYIL HOUSE, VENNOORAMPOYIL, MAMPATTUMOOLA P.O., CHOKKAD, NILAMBUR, MALAPPURAM. ``` ``` BY ADVS.SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SUDHAKARAN.M.P. S/O.APPUKUTTAN, MANJERI PARAMBIL HOUSE, VEETTIKUTH, NILAMBUR, MALAPPURAM DISTRICT-679329(DRIVER). ``` - `2 ALEX J.KAVANAL, KAVANAL HOUSE, KALOOR P.O., KOCHI-682017(OWNER).` - `3 UNITED INDIA INSURANCE CO.LTD. NILAMBUR P.O., MALAPPURAM -679329.` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.898/2012 -:2:- Dated this the 31[st] day of January,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P(MV) No.151/2009 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant 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 24.05.2008. It was his case that, on the above said day, while he was riding his motorcycle bearing registration No.KL-18-K-1022 through the Nilambur Town, a car bearing registration No.KL-07-AL-5770 (car), driven by the first respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained multiple injuries, including a fracture of the right lateral femoral condyl, fracture of the molecules and fracture of the upper 3[rd] fibula. He was treated as an inpatient M.A.C.A.No.898/2012 -:3:- for a period of 13 days at the Taluk Headquarters Hospital, Nilambur and at the Alshifa Hospital, Perinthalmanna, in two spells. The appellant was a supervisor in a Rubber Nursery and earning a monthly income of Rs.8,000/-. The car was owned by the second respondent and insured with the third respondent. Hence, the appellant claimed a compensation of Rs.2,17,000/- from the respondents. 3. The respondent Nos.1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement, admitting that the car had a valid insurance policy. However, it was contended that the accident occurred due to the negligence of the appellant. 5. The appellant had produced and marked Exts.A1 to A10 in evidence. The disability certificate issued by the Medical Board was marked as Ext.X1. The third respondent produced the statement which was marked as Ext.B1. M.A.C.A.No.898/2012 -:4:- 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,74,084/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. K.M.Jamaludheen, the learned counsel appearing for the appellant/petitioner and Sri. John Joseph Vettikkad, the learned counsel appearing for the third respondent -insurer. 9. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A5 chargesheet laid by the Police establishes that the accident happened due to negligence of the first respondent – the driver of the M.A.C.A.No.898/2012 -:5:- car. Admittedly, the second respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to the contrary to discredit Ext.A5 chargesheet. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income:** 11. The appellant had claimed that he was working as a supervisor in a Rubber Nursery at Nilambur and earning a monthly income of Rs.8,000/-. However, the Tribunal, for the want of materials, fixed the notional income of the appellant at Rs.3,250/-. 12. 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 M.A.C.A.No.898/2012 -:6:- ## 2004, at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2008, I re-fix the notional monthly income of the appellant at **Rs.6,500/-** . ## **Loss of earnings:** 14. The Tribunal has found that the appellant had ‘loss of earnings’ for a period of six months and a ‘partial loss of earnings’ for a further period six months. Taking into account the injuries sustained by the appellant, I hold that the appellant was indisposed for a period of six months. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.6,500/-, I award the appellant an amount of **Rs.39,000/-** towards ‘loss of earnings’, instead of Rs.31,500/- awarded by the Tribunal. ## **Disability:** 16. The appellant was referred by the Tribunal to M.A.C.A.No.898/2012 -:7:- the Medical Board attached to the Government General Hospital, Manjeri. A three member Medical Board, after examining the appellant, arrived at the conclusion that the appellant has ‘permanent disability’ of 22%, due to total ankylosis of his right ankle, half inch shortening of his right lower limb, his right knee is temporarily restricted, he has difficulty in squatting, climbing stairs and walking on slopes. Nevertheless, the Tribunal, for the reason that the appellant does not have a permanent disability, rejected the appellant’s claim for compensation for ‘loss due to disability’. 17. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, in the case of injury claims, what needs to be looked into is the functional disability of the injured/claimant. It is also held that, if the Tribunal is not satisfied with the disability certificate produced before it, it is the bounden duty of the M.A.C.A.No.898/2012 -:8:- Tribunal to refer the injured/claimant to a duly constituted Medical Board. Also, if the disability certificate is marked in evidence with the consent of parties, the same has to be accepted. 18. In the instant case, it was pursuant to the direction of the Tribunal, the appellant was referred to a duly constituted Medical Board attached to the District Hospital, Manjeri. A three member Medical Board, after examining the appellant, arrived at a conclusion that the appellant has 22% ‘permanent due to the medical reasons disability’ already mentioned above. 19. Surprisingly, the Tribunal rejected Ext.X1 and refused to award any amount under the head ‘loss due to disability’. Instead, the Tribunal awarded the appellant an amount of Rs.60,000/- towards ‘loss of amenities and conveniences’. The course adopted by the Tribunal is patently erroneous and wrong. 20. The Tribunal ought to have awarded M.A.C.A.No.898/2012 -:9:- compensation to the appellant following the principles laid down in **Rajkumar** (supra) and adopted the multiplier method, as laid down in **Sarla Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)]. 21. On an evaluation of Ext.X1, I find that the appellant has total ankylosis of his right ankle, half inch shortening of his right lower limb, he has restricted movements of his right knee and has difficulty in squatting, climbing stairs and walking on slopes. Being a Supervisor, the injuries sustained by the appellant has certainly impaired for his work and daily activities. Therefore, I fix the functional disability of the appellant at 25%. ## **Multiplier:** 22. The appellant was aged 42 years at the time of the accident. Going by the law laid down in **Sarla Verma** (supra), the relevant multiplier to be adopted is ‘14’. M.A.C.A.No.898/2012 -:10:- ## **Loss due to disability:** 23. Taking into account the above mentioned factors, namely; the notional monthly income of the petitioner at Rs.6,500/-, his ‘functional disability’ at 25% and the ‘multiplier’ at ‘14’, I award the appellant an amount of **Rs.2,73,000/-** towards ‘loss due to disability’. ## **Bystander expenses and Extra nourishment:** 24. The Tribunal has found that the appellant was treated as an inpatient for a period of 13 days and he had attended 14 reviews as evidenced by Exts.A8 and A9 discharge summaries. Thus, the appellant had needed the assistance of a bystander for a period of 27 days. 25. In the said circumstances, I award the appellant Rs.400/- per day for a period of 27 days for ‘bystander expenses’ which works out to **Rs.10,800/-** and Rs.200/- per day for a period of 27 days for ‘extra nourishment’ which comes to **Rs.5,400/-** . M.A.C.A.No.898/2012 -:11:- ## **Pain and sufferings:** 26. The appellant had claimed an amount of Rs.25,000/- as compensation for ‘pain and sufferings’. The Tribunal had awarded only an amount of Rs.20,000/-. 27. Taking into account the serious nature of injuries sustained by the appellant, I award him a further amount of **Rs.5,00** `0/- as claimed in the claim pe` tition. 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 in the afore-cited decisions, I hold 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. M.A.C.A.No.898/2012 -:12:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|31,500|39,000| |2|Transport|2,000|2,000| |3|Clothing|250|250| |4|Bystander<br>expenses|1,300|10,800| |5|Medical expenses|49,034|49,034| |6|Pain and sufferings|20,000|25,000| |7|Loss of amenities|60,000|60,000| |8|Future treatment|10,000|10,000| |9|Extra nourishment|Nil|5,400| |10|Loss due to<br>disability|Nil|2,73,000| ||**TOTAL**|**1,74,084**|**4,74,484**| 30. Even though the appellant had claimed only amount of Rs.2,17,000/- as compensation, taking into account Ext.X1, I have fixed the functional disability of the appellant at 25%. Accordingly, I awarded him compensation under the head ‘loss due to disability’. In the above circumstances, I have awarded him more compensation than what is claimed in the claim petition. The above course is permissible in view of M.A.C.A.No.898/2012 -:13:- the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 SC] and **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 SC]. In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.3,00,400/-** with interest on the said amount at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.15,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant, after deducting his liability towards court fee, and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/31.01.22 //True copy// P.A.To Judge