Gopalakrishnan v. Sandosh, Rajesh N and The New India Assurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 ``` ## **`MACA NO. 1109 OF 2012`** ``` AGAINST THE AWARD DATED 25.10.2011 IN O.P(M.V) NO.1724/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` GOPALAKRISHNAN.V, AGED 53 YEARS, S/O.UNNYAMAN, RESIDING AT “ROOPA NIVAS”, THENHIPALAM.P.O, MALAPPURAM DISTRICT. ``` ``` BY ADV SRI.K.A.SALIL NARAYANAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SANDOSH, AGED 31 YEARS S/O.SUKUMARAN, 5/172, MUTTUM KUNNPARAMP, RAMANATTUKARA, CALICUT-6730 01. 2RAJESH.N, S/O.RAJAN.N, AGED NOT KNOWN, NARANGAYIL PALLIYALLI HOUSE, RAMANATTUKARA.P.O, KOZHIKODE, PIN-673 001. 3THE NEW INDIA ASSURANCE COMPANY LIMITED KOZHIKODE-673 001. BY ADVS. R3 BY SRI.LAL K.JOSEPH, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1109 of 2012 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 03[rd] day of November, 2022 ``` This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Kozhikode (for short 'the Tribunal') on 25.10.2011 in O.P(M.V.) No.1724/2010. The appellant is the petitioner before the Tribunal. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 2. The petitioner had sustained injuries in a motor accident occurred at 3.00 pm on 13.07.2009 when a Motorcycle bearing Registration No.KL-11-U-9922 knocked him down at Ramanattukara while he was walking through a public road there. He had sustained serious injuries and was rushed to P.V.S Hospital, Kozhikode. He was shifted to Baby Memorial Hospital, Kozhikode for better treatment and the treatment ``` M.A.C.A.No.1109 of 2012 ``` ``` 3 ``` continued there. Alleging that the accident was occurred due to the rash and negligent riding of the Motorcycle bearing Registration No.KL-11-U-9922 by its rider and claiming for a sum of Rs.5,00,000/- as compensation, the Original Petition was moved before the Tribunal. The owner, rider and insurer of the Motorcycle were arrayed in the Original Petition as respondents 1 to 3 and it was alleged that all of them are jointly and severally liable to compensate him. 3. Respondents 1 to 3 entered appearance on receipt of notice from the Tribunal. All of them also filed written statement contending that the accident was occurred due to the negligence of the petitioner himself and that the amount claimed as compensation is excessive. The 3[rd] respondent has admitted the insurance coverage for the Motorcycle at the relevant time of accident and raised a doubt on the involvement of the offending vehicle in the accident. 4. Evidence was adduced by both parties to the Original Petition before the Tribunal. Oral evidence was not adduced by the petitioner but Exts.A1 to A6 were marked. On the side of ``` M.A.C.A.No.1109 of 2012 ``` ``` 4 ``` the respondent DW1 was examined. On appreciation of the above evidence, the Tribunal had arrived at a finding that the rider of the Motorcycle bearing Registration No.KL-11-U-9922 was responsible for the accident by his rash and negligent driving. Accordingly, the liability to indemnify the 1[st] respondent was fastened on the 3[rd] respondent, who was the insurer of the Motorcycle. The Tribunal has also arrived at a sum of Rs.1,53,452/- as the compensation payable to the petitioner and directed the 3[rd] respondent to pay it alongwith interest at the rate of 7% per annum from the date of the Original Petition till the date of realisation and Rs.1,200/- as the cost, in favour of the petitioner. Aggrieved by the quantum of compensation awarded, the petitioner has approached this Court in the appeal on hand. 5. The main contention raised in the appeal on hand was that the Tribunal failed to fix a reasonable sum as the monthly income of the petitioner for the purpose of assessment of compensation. According to him Rs.3,000/- was fixed by the Tribunal as the monthly income notionally and it is too low. It ``` M.A.C.A.No.1109 of 2012 ``` ``` 5 ``` is further contended by the learned counsel that for assessment of compensation for loss of earning, the Tribunal has considered only a period of three months which when viewed in the backdrop of the injuries sustained by the petitioner is on the lower side. The learned counsel has also pointed out that the Tribunal failed to award just and reasonable compensation and interference and modification is required. 6. It is pointed out that the petitioner was sent before the Medical Board from this Court for examination and assessment of disability and a certificate is obtained wherein the permanent disability of the petitioner is assessed as 45%. 7. The learned counsel for the 3[rd] respondent has contended that in the Original Petition filed before the Tribunal, the specific plea of the petitioner was that he was earning Rs.7,000/- monthly from running some business. Evidence of any nature was not adduced to establish those aspects and in the said circumstance that the Tribunal was constrained to fix the monthly income notionally as Rs.3,000/-. According to the learned counsel the petitioner had inpatient treatment only for ``` M.A.C.A.No.1109 of 2012 ``` ``` 6 ``` 21 days and on it’s basis, the Tribunal had arrived at compensation under various heads. According to him, interference is not required to modify the compensation stands awarded. 8. Ext.A3 and A6 are the medical documents marked in evidence from the side of the petitioner. Ext.A3 is the wound certificate prepared from Baby Memorial Hospital, Calicut, which shows that the petitioner sustained head injury, cerebral hemorrhage, cerebral contusion and contusion on scalp, in the motor accident. He was admitted at the hospital on 14.07.2009. He had undergone three operations at the hospital viz. Frontal craniotomy, partial frontal lobectomy and right frontal recraniotomy. Evacuation of acute subdural haematoma was done twice. He was discharged from the hospital on 03.08.2009. At the time of discharge he was advised to continue medication and to review after one month in the Neuro surgery OPD. There is absolutely no materials on record to evidence further follow ups of the petitioner at the hospital. Petitioner failed to produce any materials assessing his ``` M.A.C.A.No.1109 of 2012 ``` ``` 7 ``` permanent disability before the Tribunal and for that reason the Tribunal failed to award any compensation under that head. 8. After filing of the appeal the petitioner had raised a claim before this Court that his examination by the Medical Board is required. This Court has directed the Medical Board to examine him and assess his permanent disability. A certificate was obtained from the Medical Board assessing the permanent neurological disability of the petitioner as 45%. It is received in evidence as Ext.A7. 9. A description is already made above about the nature of injuries. Chronic subdural heamatoma was there and it was evacuated twice. Craniotomy and Recraniotomy were done. The Medical Board has observed in Ext.A7 certificate that the petitioner had loss of smell in both nostrils. In the above circumstances, the assessment of permanent disability as 45% is not on the higher side. 10. The monthly income for the purpose of assessment of compensation was fixed by the Tribunal notionally as Rs.3,000/-. Though claimed to be a businessman, the ``` M.A.C.A.No.1109 of 2012 ``` ``` 8 ``` petitioner failed to establish his job and income. Therefore the Tribunal was constrained to fix the monthly income notionally as Rs.3,000/-. This Court finds from the Original Petition that the petitioner failed to state the nature of business run by him. Rs.7,000/- was claimed as the monthly income. In the absence of even a mention about the nature of business run by him, this Court finds every justification in adopting a sum proportionate to Rs.4,500/- fixed by the Apex Court in Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited [ (2011) 13 SCC 236] in the case of a coolie worker who had sustained injuries in a motor accident occurred in 2004. The accident being occurred in 2009 the monthly income appropriate to be considered on the basis of fixation in Ramachandrappa supra is Rs.7,000/-. 11. As already stated, the petitioner had undergone treatment as inpatient for 21 days. The period for which the petitioner was unable to attend the job and earn income is taken by the Tribunal as three months which in view of this Court is inadequate and therefore a period of six months is ``` M.A.C.A.No.1109 of 2012 ``` ``` 9 ``` considered. When assessed in the above manner, the compensation payable under the head loss of earning will be Rs.42,000/- (Rs.7000/- x 6). Rs.9,000/- having been awarded by the Tribunal under the head, the petitioner will be entitled to get Rs.33,000/- under that head. Under the heads transportation expenses and extra nourishment, the Tribunal had awarded Rs.1,000/- each and under the heads damage to clothing and bystander expenses Rs.750/- and Rs.2,100/respectively. This Court is inclined to substitute Rs.100/- taken as the sum required daily, with Rs.200/- and the compensation when calculated for 21 days, Rs.2,100/- will be payable in addition under the head bystander expenses. Under the head damages to clothing, this Court is inclined to award Rs.250/more and under each of the heads, transportation expenses and extra nourishment, Rs.2,000/- more. Under the head pain and suffering Rs.15,000/- awarded by the Tribunal being too low this Court is inclined to grant Rs.30,000/- and therefore, Rs.15,000/- is payable additionally. Under the head loss of amenities the Tribunal has awarded Rs.5,000/- and this Court is ``` M.A.C.A.No.1109 of 2012 ``` ``` 10 ``` inclined to modify it to Rs.15,000/- so that Rs.10,000/- is payable additionally. When compensation for permanent disability is assessed with the modified monthly income of Rs.7,000/-, the multiplier as 11 and percentage of permanent disability as 45%, Rs.4,15,800/- is payable as additional compensation. 12. In the above reassessment, the petitioner is entitled to get Rs.4,80,150/- (Rupees Four Lakhs Eighty Thousand One Hundred and Fifty only) as total additional compensation which would carry interest at the rate of 7.5% per annum from the date of the Original Petition till the date of realisation. The 3[rd] respondent being the insurer shall deposit the said sum with interest fixed as above and also the sum already stands awarded in favour of the petitioner by the impugned award (if not already paid) within a period of two months from the date on which a copy of the judgment is received by it. 13. It is found that the claim in the Original Petition was for Rs.5,00,000/- and the petitioner had paid Court Fee for that. Now the total sum arrived at by the Tribunal as ``` M.A.C.A.No.1109 of 2012 ``` ``` 11 ``` compensation as well as that enhanced by this Court would come to Rs.6,33,602/- which is excess than the amount claimed in the Original Petition as compensation. Therefore the petitioner shall pay Court Fee for the amount excess to his claim of Rs.1,33,602/- in the Original Petition. Necessary steps shall be taken to realise the Court Fee from the appellant/petitioner. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB