Dharmapalan v. P.K. Ashok Kumar, Sumesh and Oriental Insurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ## **`MACA NO. 1244 OF 2013`** ``` AWARD DATED 17.11.2012 IN OPMV NO.2356 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` DHARMAPALAN, S/O.GOPALAN, PANAPARAMBIL HOUSE, CHERUSSERY P O, THAIKKATTUSSERI, THRISSUR DIST ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 P.K.ASHOK KUMAR S/O.KRISHNAN, PATTATH HOUSE, KEEZPULLIKKARA, THRISSUR DIST`** - **`2 SUMESH S/O.SUDHAKARAN, RESIDING AT IYYANI HOUSE, PERINJANAM, KATTOOR,THRISSUR, PIN – 680 702`** - **`3 ORIENTAL INSURANCE COMPANY LIMITED GURUVAYUR ROAD, KUNNAMKULAM, THRISSUR-680503`** ``` BY ADV SRI.P.JACOB MATHEW FOR R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1244 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.2356/2006 on the files of the Motor Accident Claims Tribunal, Thrissur. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 10.07.2006. 2. According to the appellant, the accident occurred when the private bus in which he was travelling, moved forward all of a sudden, when he was trying to get down from the bus. Consequent to the same, the appellant was thrown off to the road and the bus ran over his right leg. Immediately, he was taken to the Heart Hospital, Thrissur and later to Medical College Hospital, Thrissur for treatment. The appellant was aged 56 years and was a coolie with a monthly income of Rs.5,400/-. The appellant sustained very serious injuries and physical disability. The claim petition was submitted in such circumstances. 3. The 1[st] and 2[nd] respondents, the owner and driver of the bus remained ex parte. The 3[rd] respondent/Insurer of the bus filed a written statement admitting the existence of valid insurance ``` MACA NO. 1244 OF 2013 ``` ``` 3 ``` policy for the bus. However, they denied negligence on the part of the 2[nd] respondent and they disputed the quantum of compensation as well. 4. To substantiate the contentions, the appellant examined PW1, the Doctor who issued the disability certificate and as documentary evidence Exts.A1 to A10 were marked. No evidence was adduced by the respondents. 5. After the trial, the Tribunal arrived at the finding that the accident occurred due to the negligence of the 2[nd] respondent. Since the 1[st] respondent was the owner and the 3[rd] respondent was the insurer, all the respondents were held jointly and severally liable for compensation. The quantum of compensation was fixed as Rs.1,60,750/- and the 3[rd] respondent, being the insurer, was directed to deposit the said amount along with interest of 8% per annum from the date of petition till realisation with proportionate cost. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 6. Heard Sri.A.R. Nimod, learned counsel appearing for the appellant and Sri.P.Jacob Mathew, learned counsel appearing ``` MACA NO. 1244 OF 2013 ``` ``` 4 ``` for the 3[rd] respondent insurer. 7. The only question that arises for consideration is whether any enhancement as sought in the appeal is to be granted or not. The learned counsel for the appellant points out that, the amounts awarded by the Tribunal under various heads are grossly inadequate, whereas, the learned counsel appearing for the 3[rd] respondent contended that a reasonable award has been passed and no interference is required. 8. After carefully going through the materials placed on record, I find force in the contention of the learned counsel for the appellant.. The first head to be considered is the compensation for disability. To substantiate the same, Ext.A1 disability certificate was produced which was duly proved by PW1, the Doctor who issued the said certificate. The injuries sustained by the appellant as discernible from the records are compound fracture both bones of right leg, degloving injury with contusion anterior medial aspect of right leg. In Ext.A1 the extent of physical disability was assessed in the following manner: _“1. Painful limping on right side with 1” shortening of_ ``` MACA NO. 1244 OF 2013 ``` ``` 5 ``` _right leg segment – 4%._ _2. Malunited fracture right tibia and fibula with 20[0 ] varus angulation of lower leg and ankle with eczematous skin on right leg and Discharging sinus over right tibia with clinical and radiological evidence of chronic osteomyelitis – right tibia – 7%_ _3. Partial ankylosis of right ankle with Jog of movement right ankle with inability to squat – 4%_ _4. Partial ankylosis of right knee with limitation of right knee flexion beyond 90[0] with subjective moderate pain_ _on further flexion – 3%._ _He needs support for ambulation and needs further treatment for chronic osteomyelitis and eczema._ _By applying a combination formula of a+b(90-a/90) this amounts to a permanent physical disability of 15% (Fifteen Percentage only).”_ However, the Tribunal scaled down the percentage of disability to 10%. On carefully going through the observations made in the award, it is seen that, presumably the Tribunal was under the impression that, the percentage of disability certified in Ext.A1 was with reference to a particular limb whereas a careful reading of Ext.A1 along with the deposition of PW1, would give a different impression. It is evident that, PW1 had made a meticulous assessment of the injuries sustained and its consequences, and ``` MACA NO. 1244 OF 2013 ``` ``` 6 ``` calculated the whole body disability as 15%. The injuries referred to in Ext.A1 is in tune with the injuries reflected in the other medical records as well. Therefore, I do not find any justification in scaling down the percentage of disability certified by PW1 in Ext.A1 disability certificate. Therefore, I am inclined to accept 15% disability by placing reliance upon Ext.A1 and the deposition of PW1. 9. The next aspect which is relevant for determining the compensation for disability is the monthly income. The monthly income claimed was Rs.5,400/- and the amount fixed by the Tribunal in this regard was Rs.3,000/- which appears to be on the lower side. It is to be noted that, the accident occurred in the year 2006 and as per the method of computation evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735], which is usually followed by this Court, the monthly income of an ordinary employee without any specialized skills can ``` MACA NO. 1244 OF 2013 ``` ``` 7 ``` be fixed as Rs.4,500/- for the year 2004, even in the absence of any evidence. The usual method that is adopted to determine the monthly income for the subsequent years is to make an addition of Rs.500/- per year. When that method of computation is adopted, for the year 2006, the monthly income can be reasonably fixed as Rs.5,500/-. Since the amount claimed is Rs.5,400/- is close to the said amount, I deem it appropriate to fix it as Rs.5,500/-. 10. Thus, when reassessing the compensation with the revised monthly income and the percentage of disability as referred to above, the amount of compensation for disability and consequential loss of earning power would come to Rs.89,100 (5,500 x 12x 9x 15/100). The amount already awarded by the Tribunal is Rs.32,400/- and the additional compensation comes to Rs.56,700/-. 11. The Tribunal awarded compensation under the head of loss of earnings for a period of one year at the rate of Rs.3,000/per month. Since I have revised the monthly income as Rs.5,500/the appellant would be entitled to get additional compensation ``` MACA NO. 1244 OF 2013 ``` ``` 8 ``` under this head. Therefore a further sum of Rs.30,000/- is awarded under this head (5,500 x 12 – 36,000). 12. The amount awarded by the Tribunal towards pain and suffering is Rs.20,000/- which is very low. It is to be noted that the appellant had suffered very serious injuries, the details of which are already referred to above. Consequent to such injuries, he had availed inpatient treatment for a period of 91 days and the records would reveal that he was under treatment even after his discharge from the hospital. When taking note of the above aspect, I find that some additional amount is to be granted under the head of pain and suffering. Accordingly, in the facts and circumstances of the case, I deem it appropriate to fix the additional amount as Rs.20,000/-. The amount awarded by the Tribunal towards loss of amenities was Rs.18,000/-, which also appears to be on the lower side, considering the serious nature of injuries and the disability arising therefrom. Therefore, in the facts and circumstances of the case, a further sum of Rs.15,000/- is awarded under the said head. 13. Despite the fact that the appellant had undergone ``` MACA NO. 1244 OF 2013 ``` ``` 9 ``` inpatient treatment for a period of 91 days, no amount is seen granted towards extra nourishment. Therefore, considering the serious nature of injuries, and the prolonged treatment, the appellant had undergone, I deem it appropriate to grant an amount of Rs.3,000/- under the said head. Since no amount was granted towards damage to clothing, Rs.500/- is awarded under the said head. Thus, the total additional compensation would come to Rs.1,25,200/-. (56700+30000+20000+15000+3000+500) In the result, this appeal is allowed. Award dated 17.11.2012 passed by the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV).No.2356 of 2006 is modified by granting an additional compensation of Rs.1,25,200/- (Rupees one lakh twenty five thousand and two hundred only), which shall be deposited by the 3[rd] respondent, with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment.However, it is clarified that, as the delay of 52 days in filing the appeal was condoned subject to the condition that the appellant shall not be entitled to interest for the additional ``` MACA NO. 1244 OF 2013 ``` ``` 10 ``` amount, if any, granted in this appeal, the 3rd respondent shall be at liberty to exclude the said period while computing the interest for the additional compensation. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs