Faisal @ Biju v Charlie, Starlin @ Startien Therattil and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 MACA NO. 1184 OF 2018** **OPMV 1272/2015 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA APPELLANTS/PETITIONER:** **FAISAL @ BIJU, AGED 41 YEARS, S/O. VELAYUDHAN, CHUKKAN HOUSE, RESIDING AT KANNABATHUR DESOM, THORAVU VILLAGE, CHANGALOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.EBIN GOPURAN ADV.JOSEPH GOPURAN** ## **RESPONDENTS/RESPONDENTS:** - **1 CHARLIE, PROPRIETOR, THERATTIL CONSUMER PRODUCTS, VIII 108, IX234 B, THUMBOOR P.O., KOTTANELLUR, OWNER:KL-45/L 5265 PICKUP VAN.** - **2 STARLIN @ STARTIEN THERATTIL, S/O. CHARLY, THERATTIL HOUSE, THUMBOOR P.0., KOTTANELLUR, DRIVER:KL-45/L 5265 PICKUP VAN.** - **3 NATIONAL INSURANCE CO. LTD. IRINAJALAKUDA, INSURER:KL-45/L 5265 PICKUP VAN.** **BY ADV SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON 22.07.2022, DELIVERED THE FOLLOWING:** MACA 1184 OF 2018 2 ## **J U D G M E N T** This appeal has been preferred by the claimant in OP(MV)No. 1272 of 2015 on the file of Motor Accidents Claims Tribunal, Irinjalakuda, disputing the quantum of compensation awarded under various heads. 2. The appellant met with a road traffic accident on 11.08.2015 at 7.30 p.m. while he was riding his moto-cycle through Thrissur-Kodungallur public road. KL 45-L 5265 Pickup Van driven by the 2[nd] respondent and owned by the 1[st] respondent, dashed against his motorcycle and he was thrown down and he sustained grievous injuries including comminuted fracture of both bones of his right leg. The offending vehicle was validly insured with the 3[rd] respondent National Insurance Co. Ltd. as on the date of accident. 3. He claimed compensation of Rs.25,00,000/-. No oral evidence was adduced from either side. Ext.A1 to A13 were marked from the side of the claimant. On scrutiny of the facts and evidence, the Tribunal awarded compensation of Rs.4,91,000/- only, which according to him is not the ‘just compensation’. Hence this appeal. 4. Learned counsel for the appellant submitted that the appellant was a motor Mechanic and a skilled labourer and so the monthly income fixed @ Rs.7,000/- was not proper. He relied on Ext.A10 Salary Certificate issued by the employer of the appellant to say that he was earning monthly income of MACA 1184 OF 2018 3 Rs.24,000/-. The 3rd respondent opposed Ext.A10 Certificate, but no steps were taken by the appellant to prove that document. Even the appellant himself did not mount the box to give testimony regarding his qualification or experience as a Mechanic, or to say about the monthly salary he was earning from that work. Since Ext.A10 document was opposed by the Insurance Company, the appellant ought to have proved that document by examining the author who issued that certificate. Since it was not done, that Certificate could not have been accepted in evidence, to find that he was drawing monthly salary of Rs.24,000/- . 5. Learned counsel Sri.A.R.George appearing for the 3rd respondent agreed that going by **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC** **2951]** , a coolie worker might have been getting Rs.10,000/- per month in the year 2015. He has no objection in taking the notional income of the claimant @ Rs.10,000/- per month as on the date of accident. 6. Ext.A7 Treatment Certificate issued from St.James' Hospital, Chalakudy shows that the appellant was advised to take rest for a period of one year. So the loss of earnings has to be calculated for 12 months @ Rs.10,000/- which will come to Rs.1,20,000/-. He was already paid Rs.77,000/- under that head. So he is entitled to get the balance amount of Rs.43,000/- under the head ‘loss of earnings’. 7. Towards extra nourishment, the Tribunal awarded Rs.2,000/- only MACA 1184 OF 2018 4 against his claim of Rs.50,000/-. The Treatment Certificates and Discharge Summaries would show that he was hospitalised on various occasions due to malunion and other complications with the injuries he had suffered in that accident, and Ext.A7 Treatment Certificate says that he was advised rest for one year. In that circumstance, Rs.2,000/- in total towards extra nourishment is too low an amount, and he was eligible to get at least Rs.3,000/- per month for six months, which will come to Rs.18,000/- in total. Since he was paid Rs.2,000/- already, he is entitled to get the balance Rs.16,000/- towards extra nourishment. 8. Towards attendant expenses the Tribunal awarded Rs.9,900/- @ Rs.300/- per day for 33 days of hospitalisation. Since both bones of his right leg were fractured and he was on treatment and rest for about one year, at least for five months, he would have been taking the assistance of a bystander. @ Rs.300/- per day, the monthly attendant expenses will come Rs.9,000/-. So for a period of five months, he was eligible to get Rs.45,000/-. Since he was already paid Rs.9,900/-, he is entitled to get the balance amount of Rs.35,100/- under the head 'attendant expenses'. 9. Towards pain and suffering, the Tribunal awarded Rs.50,000/-. The Discharge Summaries and the Treatment Certificate will show the nature of injuries, the complications thereby and the treatment he had undergone, including bone grafting. So, Rs.75,000/- towards pain and suffering would have been proper, and hence, he is eligible to get the balance amount of MACA 1184 OF 2018 5 Rs.25,000/- under the head ‘pain and sufferings’. 10. Learned counsel for the appellant contended that the Tribunal went wrong in assessing the permanent disability at 10% though Ext.A9 Disability Certificate shows that the appellant had suffered whole body disability of 14.07%. Relying on **Manikantan G. v. K Janardanan Nair and Others** [2021 (5) KHC 305], he would argue that if the Tribunal was not satisfied with Ext.A9 Disability Certificate, the appellant should have been referred to a Medical Board. So according to him, the Tribunal violated the stipulations in **Raj Kumar v. Ajay Kumar** [2010 KHC 5021] and also Rule 387 of the Kerala Motor Vehicles Rules, 1989. 11. In **Manikantan's** case cited ( _supra),_ the Disability Certificate was marked without any objection from the side of respondent, and it was not marked subject to proof. Since that document was marked with the consent of the respondents, it was observed that if the Tribunal was not satisfied with that Certificate, it should have followed the dictum laid down in **Raj Kumar’s** case ( _supra_ ) to refer the appellant to a Medical Board. But in the case on hand, Ext.A9 Disability Certificate was opposed by the 3[rd] respondent as seen from the proceedings sheet in OP(MV)No.1272/2015. Since that document was opposed, it cannot be said that it was marked with the consent of the 3[rd] respondent. If so, the appellant should have taken steps to prove that document, by examining the Doctor who issued the same. MACA 1184 OF 2018 6 12. Ext.A9 Disability Certificate was issued by a Doctor who did not treat the appellant. The Tribunal found that in the Discharge Summery it is stated that his fracture had united well, but in Ext.A9 Disability Certificate, it is stated that there is only 80% bony union to the fracture of tibia and the remaining 20% with fibrous union. It was also certified that there was nonunion of right fibula with lateral instability of right ankle. Those findings were not tallying with the Discharge Summary dated 13.09.2017. Since Ext.A9 Disability Certificate was opposed by the Insurance Company, it was only proper from the part of the appellant to prove the same before the Tribunal. Even in the absence of evidence, the Tribunal accepted 10% whole body disability, after discarding Ext.A9 Disability Certificate. So, the Tribunal could not be found fault with for not accepting 14.07% disability stated in Ext.A9 Disability Certificate, or for not referring the appellant to a Medical Board. Since that Certificate was objected, it could not have been treated as a document marked on consent, so as to accept the contents as such. The accident was in the year 2015. Ext.A5 Discharge Summaries show that the appellant had undergone various procedures for deformity correction, including dynamisation and bone grafting. In the Discharge Summary dated 13.09.2017, it is clearly mentioned that the fracture tibia was united with implant insitu. So, in the last Discharge Summary also, which was after two years of the accident, no disability, malunion or nonunion is mentioned. So also the Tribunal rightly discarded Ext.A9 Disability Certificate. MACA 1184 OF 2018 7 13. We have fixed his notional income @ Rs.10,000/- per month so, compensation for permanent disability can be re-assessed as Rs.1,80,000/(Rs.10,000X12X15X10%). He was already paid Rs.1,26,000/- under that head. So he is entitled to get the balance amount of Rs.54,000/- under the head ‘permanent disability’. 14. Towards loss of amenities, the Tribunal awarded Rs.25,000/-. Considering the age of the claimant, and the nature of injuries suffered by him, he was eligible to get at least Rs.40,000/- towards loss of amenities. So, he is entitled to get the balance amount of Rs.15,000/- under the head ‘loss of amenities’. 15. He was paid the entire bill amount towards medical expenses and the compensation awarded under other heads also seem to be reasonable and so it need not be interfered with. |Head of claim|Amount awarded<br>by the Tribunal|Amount awarded<br>in appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earnings|Rs. 77,000/-|Rs.1,20,000/-|Rs.43,000/-| |Extra<br>nourishment|Rs.2,000/-|Rs.18,000/-|Rs.16,000/-| |Attendant<br>expenses|Rs.9,900/-|Rs.45,000/-|Rs.35,100/-| |Pain and<br>suffering|Rs.50,000/-|Rs.75,000/-|Rs.25,000/-| MACA 1184 OF 2018 8 |Permanent<br>disability|Rs.1,26,000/-|Rs.1,80,000/-|Rs.54,000/-| |---|---|---|---| |Loss of amenities|Rs.25,000/-|Rs.40,000/-|Rs.15,000/-| |Total|Rs.2,89,900/-|Rs.4,78,000/-|Rs.1,88,100/-| 16. In the result, the appellant is entitled to get enhanced compensation of Rs.1,88,100/- (43,000 + 16,000+ 35,100+ 25,000+ 54,000 + 15,000). 17. The 3[rd] respondent is directed to deposit the enhanced compensation in the Bank account of the appellant with interest at the rate of 9% from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS, JUDGE** DSV/21.07.2022