Dr. K.L. Baby v. P.K. Mohanan, M. Velmurugan & 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 ANIL K.NARENDRAN WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939 MACA.No. 1611 of 2011 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.2170/2003 of M.A.C.T., ERNAKULAM DATED 31-01-2011 APPELLANT/PETITIONER.: ---------------------------- DR. K.L.BABY, S/O.LATE LONA KURIAN, KANNAMPILLY ENCLAVE, VYTILA P.O., PUNITHURA VILLAGE, KANAYANNUR TALUK, ERANAKULAM DISTRICT. BY ADVS.SRI.ANIL S.RAJ SRI.G.ARUN GOPAN SMT.K.N.RAJANI RESPONDENTS/RESPONDENTS.: ----------------------------------- ## 1. P.K.MOHANAN, MOOTHEDATH HOUSE, IRIMPANAM P.O., VIA TRIPUNITHURA,, PIN-682 309. ## 2. M.VELMURUGAN, S/O.MUTHURAKKU, AYYAMPALLICHIRAYIL HOUSE, EAST OF PISHARI KOVIL, EROOR P.O., NADAMA VILLAGE,PIN-682 306. ## 3. UNITED INDIA INSURANCE COMPANY LTD, LAYAM ROAD, TRIPUNITHIRA-682 301. R3 BY ADV. SRI.M.A.GEORGE R3 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** -----------------------------------M.A.C.A.No.1611 of 2011 -----------------------------------Dated 23[rd] August, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Ernakulam dated 31.1.2011 in O.P.(M.V)No.2170 of 2003, an application filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor vehicle accident which occurred on 20.8.2003. While the appellant/claimant was walking through the side of Vyttila - Edappally N.H. Road, he was knocked down by a Scooter bearing Reg.No.KCF-537 owned and ridden by respondents 1 and 2 and insured with the third respondent. As a result of the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the scooter by the second respondent rider, claim petition was filed before the Tribunal claiming a total compensation of 10,00,000/-, under different heads.₹ 2. Before the Tribunal, Exts.A1 to A17 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. M.A.C.A.No.1611 of 2011 2 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the scooter by the second respondent rider. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of ₹2,04,000/- and directed the third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7.5% per annum from the date of petition till realisation with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 6. The accident is of the year 2003 and at the time of accident the appellant was aged 54 years. He claimed a monthly income of ₹75,000/- as Dental Surgeon. In order to substantiate the said claim, the appellant relied on Exts.A12 and A13 income tax returns for the period from 1.4.2002 to 31.3.2003 and from 1.4.2003 to 31.3.2004. The aforesaid documents would only show an annual income of M.A.C.A.No.1611 of 2011 3 ₹70,960/- and 98,790/- respectively, as income from profession.₹ Though, the fact that the appellant is a qualified Dentist is discernible from Exts.A14 to A16 certificates, other than Exts.A12 and A13, there was absolutely no reliable materials to prove his alleged monthly income. The appellant has also not chosen to mount the box. It was in such circumstances that the Tribunal took the monthly income at ₹8,000/-. The said finding of the Tribunal, in the absence of any reliable materials to prove his monthly income, cannot be interfered with in this appeal, especially when the fixation so made by the Tribunal was after taking note of the income from profession disclosed in Exts.A12 and A13 Income Tax returns. 7. The injuries sustained by the appellant, as borne out from Ext.A4 wound certificate, read thus:- “Type III compound segmental fracture both bones (Lt) leg (Tibial fracture is severely comminuted and segmental), lacerated wound on (Lt) leg middle 3[rd] lateral aspect. Two puncture wounds over (Lt) leg on middle third over medial aspect)” Exts.A5 to A8 discharge summaries would show the treatment the appellant had undergone as a result of the injuries sustained in the accident. The appellant had undergone inpatient treatment for a period of 62 days, as borne out from medical records. Ext.A11 is the medical certificate issued by the Medical Board at the General Hospital, Ernakulam, in which a permanent disability of 17% has been certified M.A.C.A.No.1611 of 2011 4 as per McBride's scale. ## 8. The compensation awarded by the Tribunal under different heads reads thus:- |ads reads thus:-||| |---|---|---| |**_Head_**|**_Amount_**<br>**_claimed_**|**_Amount_**<br>**_awarded._**| |Compensation for loss of earning|₹4,50,000/-|₹40,000/-| |Transportation expenses|₹10,000/-|₹2,500/-| |Damage to clothes|₹2,000/-|₹400/-| |Extra nourishment|₹10,000/-|₹2,000/-| |Medical expenses (supported by bills)|₹20,000/-|-| |Attendant expenses|₹10,000/-|₹7,500/-| |Shock, pain and sufferings|₹1,00,000/-|₹25,000/-| |Compensation for continuing & permanent<br>disability (8000x12x5x 17/100)|₹2,00,000/-|₹81,600/-| |Compensation for loss of earning power|₹1,00,000/-|-| |Mental shock and agony|₹25,000/-|-| |Disfiguration|-|₹10,000/-| |Loss of amenities and enjoyment in life|₹2,00,000/-|₹25,000/-| |Future treatment expenses|-|₹10,000/-| |Total|₹11,27,000/-|₹2,04,000/-| ## 9. Towards loss of earning, the Tribunal awarded a sum of ₹40,000/-, taking the monthly income at 8,000/-, for a period of five₹ months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. M.A.C.A.No.1611 of 2011 5 10. Towards transportation expenses, the Tribunal awarded a sum of 2,500/-. As borne out from medical records, the appellant had₹ undergone inpatient treatment for a period of 62 days under five different spells. Considering the fact that the accident is of the year 2003, we deem it appropriate to grant a sum of 5,000/- under this₹ head, resulting an additional compensation of **₹ 2,500/-** . 11. Towards damage to clothing, the Tribunal awarded a sum of ₹400/-. Considering the fact that the accident is of the year 2003, we deem it appropriate to re-fix the compensation under this head as ₹750/-, resulting an additional compensation of **₹ 350/-** . 12. Towards extra nourishment, the Tribunal awarded a sum of ₹2,000/- and under the head 'attendant expenses' a further sum of ₹7,500/- was awarded. Since the accident is of the year 2003, the appellant is entitled to extra nourishment at the rate of 100/- per day₹ for 62 days. Similarly, under the head 'attendant expenses' he is entitled to compensation at the rate of 150/- per day. In the result,₹ the compensation under the head 'extra nourishment' is re-fixed as ₹6,200/- (62x100), resulting an additional compensation of **₹ 4,200/-** and the compensation under the head 'attendant expenses' is refixed as 9,300/- (62x150), resulting an additional compensation of₹ **₹ 1,800/-** . 13. Towards pain and sufferings, the Tribunal awarded a sum of M.A.C.A.No.1611 of 2011 6 ₹25,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, we find that the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 14. Towards permanent disability, the Tribunal awarded a sum of ₹81,600/-, taking the monthly income as 8,000/-, adopting the₹ multiplier of `5' and taking the percentage of disability as 17%. Since the appellant was aged 54 years as on the date of the accident, the proper multiplier applicable is `11' in view of the law laid down by the the Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC)).**_ On re-working the compensation under the head permanent disability with `11' as the multiplier, the compensation would come to ₹1,79,520/(8,000x12x11x17/100), resulting an additional compensation of **₹ 97,920/-** . 15. Towards disfiguration and future medical expenses, the Tribunal awarded a sum of 10,000/- each. Considering the nature of₹ injuries sustained, the treatment the appellant had undergone, and also the disability that had arisen therefrom, as certified in Ext.A11, we find that the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 16. Towards loss of amenities and enjoyment in life, the Tribunal M.A.C.A.No.1611 of 2011 7 awarded a sum of 25,000/-. Considering the nature of injuries₹ sustained and the disability that has arisen therefrom, as certified in Ext.A11 at 17%, we find that the compensation awarded by the Tribunal under this head also represents just and reasonable compensation, which requires no enhancement in this appeal. 17. In the result, the appellant/claimant will be entitled for an additional compensation of **₹ 1,06,770/-** (97,920+4,200+1,800+350+ 2,500) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. 18. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the additional compensation awarded in this appeal before the Tribunal, within a period of two months from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. **Sd/-** **C.T.RAVIKUMAR** **Judge** **Sd/ANIL K.NARENDRAN Judge** TKS