Devassy Kutty v. M.K. Joseph, P.A. Sathyan & The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938 MACA.No. 2076 of 2008 ( ) -------------------------AGAINST THE AWARD IN OPMV 855/2003 of MACT, IRINJALAKUDA DATED 12-03-2008 APPELLANT(S)/PETITIONER: --------------------------------- DEVASSY KUTTY, S/O.DEVASSY, ANJILI HOUSE, MONODI DESOM, VELLIKULANGARA VILLAGE, THRISSUR. ## BY ADV. SRI.DILIP J. AKKARA RESPONDENT(S)/RESPONDENTS: -------------------------- 1. M.K.JOSEPH, MANIVELIL HOUSE, INCHAKUNDU P.O., MUPLIYAM, CHENGALOOR, THRISSUR. 2. P.A.SATHYAN, S/O.PANIKKADEN AYYAPPAN, KORAICHAL DESOM, MATTATHOOR VILLAGE, THRISSUR. 3. THE ORIENTAL INSURANCE CO.LTD., MANAPATT BUILDING, NORTH NADA, KODUNGALLUR. ## R3 BY ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.2076 OF 2008 ==========================** Dated this the 6[th] day of September, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-claimant comes up in appeal seeking enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(MV).No.855 of 2003. He filed the said claim petition seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 04.01.2003. The case of the appellant is that while he was alighting from a bus, the second respondent, the driver of the bus, took the vehicle forward rashly and consequently, he fell down and sustained injuries. In connection with the treatment, he had to remain as an inpatient for a period of 95 days. The injuries sustained by him in the accident resulted in permanent disability. It is in the said circumstances that he filed the claim **M.A.C.A.2076/2008** 2 petition seeking a total compensation of `3,00,000/-. 2.Before the Tribunal, neither the petitioner/appellant nor the respondents adduced any oral evidence. On the side of the appellant, Exts.A1 to A10 were marked. Ext.B1 is the copy of the insurance policy, marked on the side of the respondents. The Tribunal, on consideration of the evidence on record and the rival contentions, passed the impugned award for a total compensation of `1,46,100/with interest @ 7% per annum from the date of the petition till realisation. It is dissatisfied with the quantum of compensation awarded by the Tribunal that this appeal has been preferred, soliciting its enhancement. 3.We have heard the learned counsel for the appellant and the learned counsel for the insurance company. 4.Evidently, the accident, cause of the accident as the negligence from the part of the second respondent, the driver of the bus involved **M.A.C.A.2076/2008** 3 in the accident and the insurance coverage of the said vehicle are not in dispute. In such circumstances, the only question to be considered is whether the appellant is entitled to get enhancement of compensation. 5.The learned counsel for the appellant contended that the Tribunal lost sight of the fact that the accident occurred in the year 2003 and on the date of the accident, the appellant was only aged 49 years. The Tribunal fixed the monthly and according to the learned counsel, it is the erroneous fixation of the monthly income that deprived the petitioner 'just compensation'. It is submitted that the Tribunal has also granted only meager amount under the heads transportation expenses, bystanders expenses, extra nourishment, pain and suffering and discomforture and loss of amenities. Therefore, it is submitted that the compensation granted under the aforesaid heads require upward modification. 6.The learned counsel for the third respondent-insurance **M.A.C.A.2076/2008** 4 company submitted that the appellant had not adduced any evidence to establish his occupation and income and therefore, the Tribunal cannot be said to have committed any flaw in fixing the monthly income notionally at `2,000/-. It is further submitted by the learned counsel that a bare perusal of the impugned award would reveal that under all heads, the Tribunal has granted adequate compensation and above all, what was granted is just compensation commensurate with the injuries sustained. In short, it is submitted that no appellate interference is called for. 7.Evidently, the appellant had not adduced any evidence to establish his occupation and income. When that be the indisputable position obtained from the evidence on record, the Tribunal cannot be found fault with, in fixing the monthly income notionally. But, then the question is whether the fixation of the monthly income as `2,000/invites interference. In order to consider that question, we are of the view that a decision of the Hon'ble Apex Court in **Ramachandrappa** **v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** **M.A.C.A.2076/2008** 5 [ **(2011) 13 SCC 236]** can be taken as a guidance. In that case, the Apex Court fixed the monthly income of a coolie who met with an accident in the year 2004, at `4,500/-, for calculation purpose. The accident involved in this case occurred in the year 2003. At the time of the accident, the appellant was only aged 49 years. He also claimed that he was a coolie by profession and was earning `4,000/- per month. Taking into account all these aspects, we are inclined to accept and fix the monthly income of the appellant as claimed viz., `4,000/-, for calculation purpose. 8.The learned counsel for the appellant vehemently argued that the assessment of permanent disability by the Tribunal also invites interference on the ground that in Ext.A9, permanent disability of the appellant was certified as 40%. It is contended that ignoring the said certification, the Tribunal took only 20% as permanent disability, for calculation purpose and it invites interference. In this context, it is to be noted that Ext.A9 disability certificate was not issued by a duly constituted Medical Board. The appellant has also failed to get **M.A.C.A.2076/2008** 6 examined the doctor who issued the said certificate. In such circumstances, the Tribunal cannot be found fault with, in not accepting the entire percentage of permanent disability under Ext.A9. The Tribunal had specifically explained the condition of health of the appellant in paragraph 6 of the impugned award. The Tribunal has had the opportunity to see the appellant/petitioner and to make its own assessment after taking into account the certification under Ext.A9. It was thereafter that the Tribunal made the assessment of permanent disability as 20%. In such circumstances, we see no reason to interfere with the assessment made by the Tribunal. There is no case for the appellant that the multiplier was not properly identified by the Tribunal. In such circumstances, with the re-fixed monthly income, the compensation for disability has to be re-assessed. On such reassessment, the appellant would be entitled to get `62,400/(4000x12x13x20/100-62400) additionally. It is granted. Since we have re-fixed the monthly income, the appellant is entitled to get proportionate enhancement towards loss of income as well. We do not think it necessary to interfere with the period of loss of earning fixed **M.A.C.A.2076/2008** 7 by the Tribunal, viz., 6 months. Therefore, the appellant would be entitled only to get an amount of `12,000/- additionally under this head. It is awarded. Towards transportation expenses, the Tribunal granted only a sum of `2,000/-. Exts.A4 to A7 would reveal that the appellant was hospitalised on four occasions as part of the treatment. Taking into account the said fact, we are of the view that an amount of `2,000/- more can be granted under the said head. It is awarded. Under the combined head of bystanders expenses and expenses towards extra nourishment, the Tribunal granted an amount of `14,100/-. The appellant had been an inpatient for a period of 95 days. Taking note of the fact that the accident occurred in the year 2003, we are of the view that the appellant is entitled to get bystanders expenses at the rate of `150/- per day and extra nourishment at a rate of `100/- per day. In such circumstances, `14,100/- already granted by the Tribunal is adjusted towards bystanders expenses and to grant `9,500/- under the head extra nourishment. Towards pain and suffering, the Tribunal granted an amount of `30,000/-. While considering the question whether the appellant is entitled to get any **M.A.C.A.2076/2008** 8 enhancement under that head, it is only apposite to refer to Ext.A3 wound certificate and Ext.A5 discharge card. They would go to show that he had suffered fracture on the right humerus, fracture of the left ankle with lacerated wound with avulsion of skin and dorsum of left foot 15x5 cm, swelling over the right leg and ankle and fracture of pelvis. Ext.A4 discharge card would reveal that on further examination it was diagnosed that he had also fracture of superior and inferior pubicramus, fracture of sacrum, segmental fracture of right humerus and bimalleolar fracture of the right ankle. As noticed hereinbefoe, he had been an inpatient for a period of 95 days. Taking into account the nature of the accident and the nature of the treatment underwent by the appellant, an amount of `30,000/- more is granted under head pain and suffering. The nature of the injuries referred above would reveal that he must have been deprived of the ordinary experiences and pleasures of life during the said period and thereafter, for a considerably long time. In such circumstances, under the combined head discomforture and loss of amenities, we are inclined to grant `15,000/- more. Paragraph 6 of the impugned award would **M.A.C.A.2076/2008** 9 reveal that it is a fit case where a particular amount has to be granted towards future treatment. The Tribunal categorically held that his both feet were in a bad condition. Taking into account such circumstances, we are inclined to grant an amount of `20,000/towards future medical expenses. In the light of the discussions as above and consequential enhancement made by us, the appellant is entitled to get `1,50,900/-. The additional compensation except the amount granted towards future medical expenses viz., `20,000/- will carry interest @ 8% from the date of the petition till realisation. The third respondent shall pay the additional compensation along with interest within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.2076/2008** 10 **C.T. RAVIKUMAR, J.** **M.A.C.A.2076/2008** 11 **JUDGMENT September, 2010**