Dimson, s/o Velappady Anthony v. A. SHANMUGHAN and The United India Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938 MACA.No. 1016 of 2008 ( ) -------------------------AGAINST THE JUDGMENT AND AWARD IN O.P.(M.V)No.1569/2001 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 22-03-2007 APPELLANT/PETITIONER: --------------------------- DIMSON, S/O. VELAPPADY ANTHONY, RESIDING AT CHENGALOOR P.O., SHANTHI NAGAR, THRISSUR DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.JIBU P THOMAS RESPONDENTS/RESPONDENTS: ----------------------------------- 1. A.SHANMUGHAN, S/O. ARUMUGHA GOUNDEN, RESIDING AT MANALOHO ESTATE, KOOMUNPALAN, PADAGIRI, NELLIAMPATHY, PALAKKAD. 2. THE UNITED INDIA INSURANCE COMPANY LTD., PALAKKAD. R2 BY ADV. SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSURANCE COMPANY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-08-2016, ALONG WITH MACA. NO.1655/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** --------------------------------------- M.A.C.A.Nos.1016 & 1655 of 2008 ---------------------------------------Dated 11[th] August, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The claim petitions from which the captioned appeals arose were jointly enquired into and disposed of by a common award dated 22.3.2007 by the Motor Accidents Claims Tribunal, Irinjalakuda. The former appeal arises from the judgment and award in O.P.(M.V) No.1569 of 2001 and the latter appeal arises from the judgment and award in O.P.(M.V)No.1804 of 2001. In the said circumstances, we heard the appeals jointly and they are being disposed of by this common judgment. The facts in brief necessary for the disposal of these appeals are as hereunder:- The appellant in the former appeal was riding a motor cycle bearing Reg.No.KL-8/K 4597 on 13.6.2001 through Thrissur - Ernakulam sector of NH-47, from south to north. The appellant in the latter appeal was the pillion rider on it. At about 8.45 p.m. When they reached near Amballur Highway Tower a Jeep bearing Reg.No.KL-9/B 3684 driven by the first respondent who is its owner-cum-driver hit M.A.C.A.Nos.1016 & 1655 of 2008 2 against their motor cycle. Consequently, both of them sustained injuries and they were hospitalized. It is seeking compensation for the injuries sustained that they filed the aforementioned claim petitions. As per the award in O.P.(M.V)No.1569 of 2001 the Tribunal granted a compensation of 1,97,048/- with interest at the rate of 7% per annum₹ from the date of petition till realisation to the appellant in the former appeal. In O.P.(M.V)No.1804 of 2001 the Tribunal granted a total compensation of 1,77,317/- with interest at the rate of 7% per annum₹ from the date of petition till realisation. It is seeking enhancement of the compensation granted as per the respective awards that the captioned appeals have been preferred. 2. We have heard the learned counsel for the appellants in both the appeals, Sri.P.K.Manojkumar, the learned counsel appearing for the 2[nd] respondent in M.A.C.A.No.1016 of 2008 and Sri.P.Jacob Mathew, the learned counsel appearing for the 2[nd] respondent in M.A.C.A.No.1655 of 2008. It is submitted by the learned counsel on both sides that in both the appeals the only question to be decided is whether or not the appellant is entitled to get enhanced compensation ? M.A.C.A.No.1016 of 2008 3. The appellant was the rider of the motor cycle involved in the accident. On the date of the accident he was aged 27 years. In the M.A.C.A.Nos.1016 & 1655 of 2008 3 claim petition his occupation was given as fish merchant and further it was stated that he was earning 5,000/- per month. Ext.A17 is the₹ wound certificate. It would reveal that he sustained a crush injury having a size of 10 x 1 c.m. exposing bone, compound fracture of left femur, compound fracture of left both bones and compound fracture of meta- tarcel left bone. Ext.A22 is the disability certificate in respect of the appellant. As per the same, the doctor opined that he got a temporary disability of 55% for the first three months and 35% permanent disability for the next six months. The permanent disability was assessed as 23%. PW2 is the doctor who issued Ext.A22. It would show that there is a united fracture of left tibia and non-union of fibula at the upper end and also malunion of the fibula at lower end. Stiffness in left ankle was also found besides lack of dorsiflexion movements of left ankle. It was also noted therein that he had equinus contracture of 20[o] in left ankle. It was also noted therein that there is an ugly scar over medial aspect of left thigh and subcutaneous and muscle loss in upper end of left thigh. In fact, taking into account all those factors that the disability was assessed as stated above. We have carefully gone through Ext.A22. The factors which were taken into account by PW2 for assessing the permanent disability were not virtually fully accepted by the Tribunal. As against a certification of 23% of permanent disability the Tribunal assessed the permanent disability only M.A.C.A.Nos.1016 & 1655 of 2008 4 as 13%. Having gone through the evidence on record including the disability certificate wherein various factors that were taken into account for assessing the permanent disability were mentioned, we are of the considered view that a slightly higher percentage of permanent disability can be taken and we assess the same as 15%. The learned counsel for the appellant contended that the Tribunal also erred in fixing the monthly income. It is the submission that disregarding the averments in the claim petition regarding the occupation and income the Tribunal fixed the monthly income notionally at 2,000/-. The₹ contention is that it also requires an upward modification. 4. The learned counsel appearing for the 2[nd] respondent submitted that the Tribunal cannot be found fault with in fixing the appellant's monthly income notionally as the appellant had not virtually proved his averments regarding the occupation and income. PW3 who is none other than the father of the appellant alone was examined to prove the income. The nature of the evidence tendered through PW3, on our view, is not sufficient to support the contention taken up in the claim petition regarding the income and occupation. Going by the evidence of PW3, he is the Manager of the fish stall conducted by the appellant. But, at the same time, the certificate produced was issued by PW3, who himself is only an employee of the appellant. In such M.A.C.A.Nos.1016 & 1655 of 2008 5 circumstances, we are of the view that the evidence tendered by the appellant cannot be taken into consideration for the purpose of fixing his monthly income. But, at the same time, it is a fact that he was aged only 27 years at the time of the accident. There is also no case that he was a disabled person prior to the accident. In such circumstances, we will have to consider that the appellant was an able bodied person aged 27 years at the time of the accident. The accident occurred on 13.6.2001. We are of the view that, in view of the circumstances obtained in this case, for the purpose of fixing his monthly income the decision of the Hon'ble Apex Court in _**Ramachandrappa** v._ _**Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ can be taken as the guidance. In that case, in respect of an accident which occurred about three years after the incident in question to a coolie, the Hon'ble Apex Court fixed the monthly income notionally as 4,500/-. Taking₹ note of the age of the appellant and the year of the accident and bearing in mind the said decision we are inclined to take the monthly income of the appellant as ₹ 3,000/- for calculation purpose. Accordingly, the monthly income of the appellant is fixed notionally as ₹ 3,000/-. The Tribunal took the multiplier as `18'. With reference to the age of the appellant, the multiplier to be applied in terms of the schedule given in the decision in _**Sarla Verma v. Delhi Transport**_ M.A.C.A.Nos.1016 & 1655 of 2008 6 _**Corporation (2010 (2) KLT 802 (SC))**_ is `17'. In such circumstances, with the modified multiplicand and the multiplier the compensation payable for disability has to be re-assessed. Based on such re-assessment, the appellant is granted an amount of 35,640/-₹ (3000 x 12 x 15 x 17/100= 91800-56160 = 35,640) additionally under that head. Towards extra nourishment, the Tribunal granted only an amount of 2,400/-. The appellant had been an inpatient for a period₹ of 24 days. In fact, the said amount was granted to the appellant under the combined head of `extra nourishment and bystander's expenses'. We are inclined to consider the said amount granted as one granted only towards `extra nourishment'. Taking note of the fact that the accident occurred in 2001 we are inclined to grant 150/- per day₹ towards bystander's expenses. Therefore, for the said period of 24 days the appellant will be entitled to get 3,600/- towards bystander's₹ expenses. It is granted. Towards transportation, the Tribunal granted only 500/-. This according to us, is too meagre. We are inclined to₹ grant 1,500/- more under the said head. It is granted. Towards loss₹ of earnings, the Tribunal granted only an amount of 8,000/-.₹ Evidently, the Tribunal took only four months' period for calculating the compensation under that head. Taking note of the nature of the injuries and the treatment undergone by him we are inclined to take the period as five months. In that view of the matter, based on the M.A.C.A.Nos.1016 & 1655 of 2008 7 monthly income re-fixed by us the appellant is entitled to get an amount of 7,000/- more towards loss of earning. It is granted.₹ Towards pain and sufferings the Tribunal granted 15,000/-. We have₹ already taken note of the injuries sustained by the appellant in the accident. The injuries noted in Ext.A22 would reveal that he must have endured enormous pain owing to the injuries sustained. In such circumstances, an additional amount of 10,000/- is granted towards₹ pain and sufferings. Towards loss of amenities and happiness in life the Tribunal granted an amount of 6,000/-. Taking note of the nature of₹ the injuries and the period of hospitalisation and the period of rest we are of the view that the appellant is entitled to get an amount of ₹ 14,000/- more under the said head. It is granted. The nature of the injuries would reveal that the dresses worn by the appellant at the time of the accident must have been completely damaged. In such circumstances, we are inclined to grant 1,000/- towards damage to₹ clothing. Accordingly, it is granted. 5. In the light of the aforesaid discussion, an amount of ₹ 72,740/- which is rounded off to 72,800/- is granted as additional₹ compensation to the appellant. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. M.A.C.A.Nos.1016 & 1655 of 2008 8 ## M.A.C.A.No.1655 of 2008 6. As noticed hereinbefore, the appellant herein was the pillion rider in the motor cycle involved in the accident. On the date of the accident he was aged 36 years. In the claim petition it is stated that he was then a salesman attached to the business concern of the appellant in the former appeal and was earning an amount of 4,000/-₹ per month. The occupation and income of the appellant was also sought to be established through PW3. On going through the evidence of PW3 and also taking note of the contention that he was working under the appellant in the former appeal who was earning only ₹ 5,000/- we have already found his evidence as unreliable. We are of the view that it is unsafe to rely on the evidence of PW3 for fixing the occupation and income of the appellant herein, as well. Thus, following the same reasons which we have assigned for fixing the monthly income of the appellant in the former appeal and taking note of the age of the appellant herein and also the year of the accident we are of the view that the same amount viz., 3,000/- has to be fixed as the₹ monthly income in the case of this appellant as well. Accordingly, it is fixed. On going through the award whereunder compensation was granted under different heads we are of the view that the appellant was not adequately compensated under various heads. M.A.C.A.Nos.1016 & 1655 of 2008 9 7. The appellant had been an inpatient for a period of 48 days. The Tribunal granted an amount of 4,800- under the combined₹ head of `extra nourishment and bystander's expenses'. Though the learned counsel vehemently submitted that the period of hospitalization is much more than 48 days, on going through the evidence on record, we are not convinced of the same. No material is available on record to support such contention. In the said circumstances, we are of the view that the amount granted under the impugned award can be taken as one granted towards `extra nourishment'. Hence, the appellant has to be compensated for the amount expended towards `bystander's expenses'. Taking note of the year of the accident we are of the view that an amount of 150/- per day can be granted under that head. In₹ such circumstances, for the period of 48 days he will be entitled to get ₹ 7,200/- towards bystander's expenses. It is granted. While considering the question of enhancement of the compensation to be granted towards `loss of earnings', `pain and sufferings', `loss of amenities' as also for `permanent disability' the injuries sustained by the appellant in the accident have to be taken into account. In the accident he had sustained compound fracture of both bones of the left leg. There was bleeding from the left ear and he had also sustained a fracture of middle cranial fossa, head injury and fracture of temporal M.A.C.A.Nos.1016 & 1655 of 2008 10 bone. Ext.A23 is the disability certificate issued by PW2 in respect of the appellant. Going by the same, PW2 assessed the temporary disability of the appellant as 50% for the first year and a permanent disability of 32%. After carefully going through the disability certificate and evidence of PW2 the Tribunal assessed the permanent disability as 16%. Going through the evidence of PW2 with Ext.A23 we do not find any reason to interfere with the assessment made by the Tribunal. But, at the same time, it is evident that the Tribunal wrongly adopted the multiplier. There is no reason to dispute the position that the multiplier has to be adopted with reference to the age of the permanently disabled person. He was then aged 36 years. In the light of the schedule given in the decision in _**Sarla Verma's**_ case (supra) the multiplier to be applied is `15'. Accordingly, the multiplier is fixed as `15'. In the light of the modified monthly income and the multiplier the compensation payable for permanent disability has to be re-assessed. On such re-assessment the appellant is entitled to get an amount of ₹ 86,400/-. However, the Tribunal has already granted an amount of ₹ 46,080/- under the said head. Therefore, the appellant is entitled to get an amount of 40,320/- additionally under that head. It is granted.₹ By virtue of the modification of the monthly income the appellant is entitled to get a proportionate enhanced compensation under the head `loss of earnings'. Evidently, the Tribunal took only four months period M.A.C.A.Nos.1016 & 1655 of 2008 11 for the purpose of computing compensation for loss of earnings. In the light of the nature of the injuries referred hereinbefore, we are of the view that the period ought to be fixed as six months. Therefore, with the modified monthly income the appellant will be entitled to get an amount of 18,000/- under that head. After deducting the amount₹ granted by the Tribunal viz., 6,000/-, an amount of 12,000/- more₹ ₹ is granted under that head. Towards pain and sufferings the Tribunal granted 12,000/-. The nature of the injuries would indicate that the₹ said amount awarded by the Tribunal is too meagre. In the said circumstances, taking note of the seriousness of the injuries we are inclined to grant an amount of 30,000/- towards pain and sufferings.₹ After deducting the amount granted by the Tribunal the appellant will be entitled to 18,000/- more under that head. It is granted. Towards₹ loss of amenities, taking note of the aforesaid circumstances and the period of hospitalization and the period required to recover from the injuries we are of the view that the appellant is entitled to get ₹ 20,000/- more under that head. Accordingly, it is granted. The nature of the injuries would indicate that the dresses worn by him must have been damaged in the accident. Therefore, 1,000/- is granted₹ towards damage to clothing. M.A.C.A.Nos.1016 & 1655 of 2008 12 8. In the light of the aforesaid discussion, the appellant will be entitled to get an amount of 98,520/- which is rounded off to₹ ₹ 98,550/-, over and above the amount granted by the Tribunal under the impugned award. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. In both the appeals the common 2[nd] respondent, the insurance company shall deposit the enhanced amount along with interest within a period of two months from the date of receipt of copy of this judgment. There will be no order as to costs, in both the appeals. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS