Devarajan v. Binu Divakaran, R. Radhakrishnan Nair, Rajendra Kumar and The Manager, New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937 MACA.No. 1353 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 1133/2004 of MACT(ADDL.DISTRICT & SESSIONS JUDGE II), MAVELIKKARA DATED 17-01-2013 ## APPELLANT(S)/CLAIMANT: ----------------------------- DEVARAJAN, AGED 47 YEARS S/O. AYYAPPAN PILLAI RESIDING AT MELADATHU PUTHEN VEEDU, EDAPPOON MURI NOORANAD VILLAGE, PIN-689 511 ## BY ADV. SRI.A.SHAFEEK (KAYAMKULAM) RESPONDENT(S)/RESPONDENTS: ------------------------------------ 1. BINU S/O. DIVAKARAN MAVADIYIL HOUSE FROM ELANGANOR MALAYIL HOUSE THURITHIMEL MURI, CHERIYANADU VILLAGE, PIN- 689511 2. R. RADHAKRISHNAN NAIR, S/O. RAGHAVANKURUP, RADHAKRISHNA BHAVAN MANKAMKUZHY P.O, VETTIYAR, MAVELIKARA, PIN-690558 3. RAJENDRA KUMAR, RADHAKRISHNA BHAVAN, MANKAMKUZHY P.O, VETTIYAR MAVELIKARA, PIN- 690558 4. THE MANAGER, BRANCH OFFICE, THE NEW INDIA ASSURANCE CO. LTD PATHANAMTHITTA, PIN- 689645 R4 BY ADV. SMT.T.C.SOWMIAVATHY R4 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** **========================== M.A.C.A. No.1353 OF 2013 ==========================** Dated this the 15[th] day of February, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The injured, claimant in O.P.(MV).No.1133 of 2004 on the files of the Motor Accidents Claims Tribunal, Mavelikkara is the appellant. He met with a motor vehicle accident on 19.8.2003 while riding his motor cycle bearing Reg.No.KL-4K/8334 from west to east through Mavelikkara-Pandalam public road. The offending vehicle viz., a private bus bearing Reg.No.KL-11D/8485 driven by the first respondent in a rash and negligent manner came from the opposite direction and dashed against his motor cycle when he reached near Eravamkara junction. The appellant-petitioner who sustained injuries in the accident was taken to Government Hospital, Mavelikkara. Ext.A6 is the wound certificate issued from the said hospital noting **M.A.C.A.1353/2013** 2 the following injuries:- 1. Bleeding from both nostrils and left ear. 2. Multiple lacerated injuries over forehead and face. 3. Fracture mandible present. 4. Head injury. 2.The appellant was then referred to Medical College Hospital, Kottayam and he had been an inpatient there from 19.8.2003 to 5.9.2003. Ext.A14 would reveal that the appellant sustained fracture of maxilla, comminuted fracture of proximal phalanx etc.. It would also reveal mobility and displacement of maxilla and dento alveolal process. He lost six teeth. The appellant has also produced CT scan report which would reveal abnormal hypodense area about 10 HU involving both grey and white matter on the region of left temporal lob suggestive of old infarct. That apart, it would also reveal bilateral periventricular white matter ishemic changes. Ext.A13 would reveal that the doctor, on examination, formed the impression that there are changes secondary to old trauma and surgical left temporal region. It is in the said circumstances that seeking compensation for the injuries **M.A.C.A.1353/2013** 3 sustained the petitioner filed O.P.(MV).No.1133 of 2004 before the Tribunal under section 166 of the M.V.Act. The petitioner had taken up allegations to the effect that the accident occurred solely due to negligence on the part of the first respondent. Respondents 2 and 3 are respectively the de jure and the de facto owners of the offending vehicle. After careful consideration of the evidence on record, the Tribunal granted compensation to the tune of `1,08,300/-. It is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. 3.As per order dated 5.8.2015, this Court dispensed with notice to the first respondent and further directed the appellant to appear before a Medical Board to be constituted by the Superintendent of Government T.D Medical College Hospital, Alappuzha for assessing his permanent disability, if any. In compliance with the said order, a Medical Board was constituted and the percentage of permanent disability of the appellant was assessed and the disability certificate **M.A.C.A.1353/2013** 4 bearing No.MR-285/15MCHA/MACT has been forwarded to this Court. It would reveal that the Medical Board assessed the same as 32%. 4.We have heard the learned counsel for the appellant and also the learned counsel for the fourth respondent, the insurer. The main contention of the appellant is that the Tribunal declined to grant any amount for disability incurred by the appellant owing to the accident. It is also contended that only meager amount of compensation was granted by the Tribunal under different heads. It is contended that though the appellant has specifically stated in the claim petition that he was working as an Electrical Supervisor in Saudi Arabia and was getting a monthly income of `16,000/-, the Tribunal notionally fixed his income only as `3,000/- disregarding such averments. In short, it is the contention that it is the erroneous estimation of various factors by the Tribunal that resulted in the impugned award for an amount which is much less than the just compensation, according to the **M.A.C.A.1353/2013** 5 appellant. 5.Per contra, the learned counsel for the fourth respondent contended that a bare perusal of the impugned award would reveal that the Tribunal has granted a just compensation taking note of the injuries sustained by the appellant. It is also contended that under all heads to which the appellant is entitled to, he was adequately compensated as can be seen from the schedule appended to the judgment. In short, according to the learned counsel, the appellant is not justified in seeking further enhancement under any of the heads. 6.As noticed hereinbefore, the main grievance of the appellant is that despite the specific averments in the claim petition that he was an Electrical Supervisor and was earning a monthly income of `16,000/-, the Tribunal notionally fixed his monthly income as `3,000/-. It is to be noted that even after taking up such specific contentions, admittedly, the appellant failed to adduce any material before the **M.A.C.A.1353/2013** 6 Tribunal to establish his occupation and income. In the absence of such evidence, it cannot be said that the Tribunal has committed a flaw in fixing the monthly income of the appellant notionally. But the question is, whether the amount fixed notionally invites any interference. Evidently, the accident occurred on 19.8.2003. It is to be noted that in the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236],** the Hon'ble Apex Court in the case of a coolie who met with a accident in the year 2004 fixed the monthly income as `4,500/-. In such circumstances, taking into account the year of the accident and also the fact that the appellant was then aged 38 years, we are of the view that the monthly income of the appellant has to be fixed notionally at `4,000/-. We do so. We have already found that taking into account the fact that the appellant has incurred permanent disability, this Court referred him to be examined by a medical board and going by the report dated 20.8.2015, it was assessed as 32%. As noticed hereinbefore, the appellant was then aged 38 years. In such **M.A.C.A.1353/2013** 7 circumstances, going by the decision in **Sarla Verma v. Delhi Transport Corporation** reported in **2010 (2) KLT 802 (SC)** the multiplier has to be 15. Taking into account all such aspects and the disability incurred in the accident, the appellant is entitled to get an amount of `2,30,400/-. But, the schedule appended to impugned award would reveal that for the loss of teeth, the appellant was granted an amount of `18,000/-. Taking the said fact the appellant would be entitled to get additionally an amount of `2,12,400/- under the said head. As noticed hereinbefore, the appellant had been an inpatient in Medical College Hospital, Kottayam from 19.8.2003 to 5.9.2003. He was discharged on 5.9.2003. Thus, there is a total period of hospitalisation of 17 days. The Tribunal granted only `100/per day for the purpose of computing the bystander expenses. We are inclined to grant `150/- per day and in such circumstances, taking into account the period of hospitalisation, the appellant is entitled to get `850/- additionally. The Tribunal granted an amount of `18,000/towards loss of earning taking the monthly income as `3,000/- and the **M.A.C.A.1353/2013** 8 period of loss of income as six months. As already noticed, we fixed the monthly income as `4,000/- and in such circumstances, loss of earning for the same period would be `24,000/-. In other words, under the said head, the appellant is entitled to get additionally an amount of `6,000/- after deducting the amount already granted viz., `18,000/-. Towards transportation charges, the appellant claimed an amount of `5000/-and the Tribunal granted only an amount of `1500/-. It is obvious from the impugned award itself that the Tribunal took note of the fact that the appellant had multiple admissions in hospital. When that be so, we are of the view that the appellant is entitled to get the entire amount claimed under the said head and accordingly, it is granted. Hence, the appellant is entitled to get additionally an amount of `3,500/-. Towards damage to clothing, an amount of `500/- was claimed. However, no amount was granted by the Tribunal. There can be no doubt that in the accident, the clothes then worn by him must have been damaged. In such circumstances, the appellant is entitled to get the amount claimed viz., **M.A.C.A.1353/2013** 9 `500/-. Towards pain and suffering, the appellant claimed an amount of `35000/-. But the Tribunal granted an amount of `25000/-. We have already adverted to the relevant documents revealing the injuries sustained by the appellant. It is also a fact that he had undergone Craniotomy. He lost six teeth. Taking note the injuries noted in Exts.A6, A7 and A14, we are of the view that the appellant must have suffered severe pain from the injuries sustained in the accident. Taking note of the period of hospitalisation and the aforementioned aspects, we are of the view that the appellant ought to have been granted the entire amount claimed under that head. In that view of the matter, we award `10,000/- more under the head pain and suffering. In the light of the aforesaid discussions, the appellant is entitled to get an enhanced amount of `2,33,250/- over and above what is awarded by the Tribunal under the impugned award. Accordingly, it is awarded. The said enhanced amount will carry interest @ 8% per annum from the date of the petition till realisation. The fourth respondent is directed to deposit the said amount within three months **M.A.C.A.1353/2013** 10 from the date of receipt of a copy of this judgment failing which the entire amount remaining to be paid, will carry interest @ 9% from the date of filing of the claim petition. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **MARY JOSEPH (JUDGE)** **spc/** **M.A.C.A.1353/2013** 11 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1353/2013** 12