Dr. Chakkappan v. Roy and Vidyadaran and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **MACA.No.2801 OF 2012(B)** **AGAINST THE AWARD IN OPMV 1075/2007 DATED 03-08-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **DR.CHAKKAPPAN, S/O DEVASSY, CHIRAKKAL HOUSE, PADUVAPURAM P.O., KARUKUTTY, ALUVA TALUK.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** **1 ROY, S/O RAPPAI, NELLANKARA HOUSE,PERUVAMKULANGARA P.O., OLLUR 680 306.THRISSUR. 2 VIDYADARAN, S/O.RAMAKRISHNAN PULLIKKATHARA HOUSE,PERUVANKULANGARA P.O.,MARATHAKKARA 680 306, THRISSUR. 3 THE ORIENTAL INSURANCE CO. LTD. THRISSUR 680 001.** **R1, R3 BY ADV. SRI.P.V.JYOTHI PRASAD SMT.K.S.SANTHI, SC FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2021, THE COURT ON 23-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.2801 OF 2012** **2** ## **JUDGMENT** ## **Dated this the 23rd day of March 2021** The appellant is the petitioner in O.P.(MV)No.1075/2007 on the filed of the Motor Accidents Claims Tribunal,Irinjalakuda. It is a claim petition filed under Section 166 of Motor Vehicles Act. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). 2. Short facts are like this, on 16.03.2007 at about 1.15 p.m, the petitioner was driving a car bearing Reg.No.KL10/K 7193 through National Highway 47 at Chalakudy from south to north and a goods vehicle bearing Reg.No.KL-8Y 7341 driven by the 2[nd] respondent in a rash and negligent manner came from the opposite direction and hit on the car causing injuries to the petitioner. First respondent is the owner and 3[rd] respondent is the insurer of the lorry. According to the petitioner, all respondents are jointly and severally liable to compensate the petitioner. 3. To substantiate the case, the petitioner produced Exts.A1 to A13 and Exts.B1 to B4 are also marked on the side **MACA.No.2801 OF 2012** **3** of the respondents. PW 1 and PW2 are two witnesses examined on the side of the petitioner. After going through the evidence and documents, the Tribunal found that, there is contributory negligence on the part of the petitioner and 2[nd] respondent. As far as the quantum of compensation is concerned the Tribunal fixed an amount of Rs.64,890/-. But from the above amount, 50% is deducted because of the negligence on the part of the petitioner. Aggrieved by the quantum of compensation this appeal is filed. 4. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent. 5. The learned counsel for the appellant/petitioner submitted that he is not challenging the finding of the Tribunal with regard to the contributory negligence attributed to the petitioner. The learned counsel submitted that the quantum of compensation awarded by the Tribunal is too low. 6. The 1[st] submission of the counsel is about the monthly income of the petitioner fixed by the Tribunal. He asserts that, the petitioner is aged 60 years and he is a retired **MACA.No.2801 OF 2012** **4** Professor who was working as a guest lecturer at St.Joseph College, Irinjalakuda. The counsel submitted that the petitioner clearly stated in his claim petition that his monthly income is Rs.10,000/- and he produced Ext.A10 certificate to show that his monthly income is Rs.10,000/-. But the Tribunal wrongly stated in the award that the petitioner himself claims that he is getting only Rs.5,000/- per month. The counsel submitted that there is no such submission from the side of the petitioner and his claim is Rs.10,000/-. I see no reason to disbelieve the case of the petitioner. In the light of Ext.A10 certificate the monthly income of the petitioner can be fixed as Rs.10,000/- per month. In this case, there is no contra evidence adduced by respondents to dispute the same. 7. As far as loss of earning is concerned, in the impugned award it is stated that amount claimed is Rs.15,000/-. I perused the claim petition, which is made available by the counsel for the appellant. The claim of the petitioner in the claim petition for loss of earning for the period from 16.03.2007 to 01.10.2007 is an amount of Rs.65,000/-. Admittedly, the petitioner sustained very serious **MACA.No.2801 OF 2012** **5** injuries including fracture. He may not be able to work at least for a period of six months. Therefore, the petitioner is entitled for compensation for the loss of earning for a period of six months. Then the amount will be 6x10,000 = 60,000/-. 8. As far as pain and suffering is concerned the Tribunal awarded an amount of Rs.12,000/-. Considering the serious nature of the injury and sufferings of the petitioner, I think another amount of Rs.8,000/- can be awarded in this head. 9. In Paragraph 7 of the impugned award the Tribunal observed like this:- “Ext.A7 is the disability certificate which shows that he has a permanent disability of 13.70%. This is properly proved by PW2 the doctor who issued the certificate” After concluding like this, the Tribunal observed subsequently like this in the same Paragraph:- “ Therefore considering the disability certificate and evidence of PW2 and considering the age of the petitioner his loss of earning capacity can be assessed at 5%” No reason is mentioned to reduce the percentage of disability after finding that Ext.A7 is proved by examining PW2 Doctor. **MACA.No.2801 OF 2012** **6** 10. The Apex Court in _**Pappu Deo Yadav v. Naresh Kumar and others**_ [AIR 2020 SC 4424] after considering a plethora of decisions on a point 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in _**Syed Sadiq and others v.**_ _**Divisional Manager, United India Insurance Company**_ [2014 (2) SCC 735] and _**Raj Kumar v. Ajay kumar and anr.**_ [2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in the assessment of extent of disabilities and compensation under various heads. 11. In the light of above principle, according to me, Ext.A7 can be accepted and the permanent disability can be fixed as 13.70%. In that circumstances, the permanent disability is to be reassessed in the following manner: **MACA.No.2801 OF 2012** **7** 10,000 x 12 x 9 x 13.70/100 = 1,47,960/- From the above amount, the amount already awarded is to be deducted. Then the balance amount will be: 1,47,960 – 27,000 = 1,20,960/- The appellant is entitled an amount of Rs.15,000/towards amenities also. Therefore, the enhanced compensation entitled by the appellant can be summerized like this: Loss of amenities = Rs.15,000/= Loss of Earning Rs.60,000/= Pain and suffering Rs. 8,000/= Permanent Disability Rs.1,20,960/_______________ Total = Rs.2,03,960/- **==> picture [71 x 72] intentionally omitted <==** 50% of the amount is to be reduced because the Tribunal found that there is contributory negligence on the part of the appellant/petitioner. Then the balance enhanced **MACA.No.2801 OF 2012** **8** amount entitled by the petitioner will be; **==> picture [242 x 32] intentionally omitted <==** **==> picture [71 x 48] intentionally omitted <==** Interest at the rate of 7.5% from the date of application till realization. Therefore, the appeal is allowed in part, the appellant is entitled an enhanced compensation of Rs.1,01,980/- with interest at the rate of 7.5% per annum from the date of application till realization. The 3rd respondent is directed to pay the enhanced compensation with interest. **Sd/P.V.KUNHIKRISHNAN JUDGE** VPK