Hari Kumar.M.K. v. Rajesh M.A., Merwin Premraj and United India Insurance Company Limited

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 ``` ``` MACA NO. 2620OF 2012 ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR) ``` ## **`APPELLANT/ RESPONDENT:`** ``` HARI KUMAR.M.K., RESIDING AT MUTHIRAM PARAMBIL HOUSE, AGATHIYUR P.O., PERAMANGALAM, KUNNAMKULAM, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RAJESH.M.A., S/O.NARAYANAN, RESIDING AT 121, RAJEEV GANDHI NAGAR COLONY, SOURIPALAYAM, DISTRICT COIMBATORE, TAMILNADU, PIN:641 208 2MERWIN PREMRAJ, S/O.P.RADHAKRISHNAN, RESIDING AT MERILANDA HOUSE, ARANGOTTUPARAMBU, WEST HILL, CALICUT, PIN.673 001 3UNITED INDIA INSURANCE COMPANY LIMITED., DIVISIONAL OFFICE, NO.11, POST BOX NO.192, MAVOOR ROAD, KOZHIKODE, PIN. 673 001. BY ADV SRI.A.A.MOHAMMED NAZIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.2620/2012 2 ## `JUDGMENT` ``` (Dated: 17[th] October, 2022) ``` The appellant is the petitioner in O.P.(M.V.) No.2043 of 2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The appeal is filed by the appellant/petitioner claiming enhancement compensation. 2. Brief facts of the case are as follows: On 30.04.2004 at 9.45 p.m., while the appellant was walking through Edappal Kuttippuram SH road, a car bearing Reg.No.TMB/2858 driven by the 2[nd] respondent in a rash and negligent manner hit him and caused serious injuries to petitioner. He was taken to Metropolitan Hospital, Thrissur, and was treated there. He was hospitalized from 01.05.2004 to 14.05.2004 and from 01.06.2004 to 15.06.2004, wherein open reduction and internal fixation of the right tibia by a 10mg butress plate and inter MACA No.2620/2012 3 fragmentary and bicortical screws. Fasciotomy was also done. Secondary skin grafting was advised after granulation. He claimed to be a tailor, earning a monthly income of Rs.6,000/- per month. Total compensation of Rs.3,50,000/- was claimed as compensation. 3. Respondents 1 and 2 filed a joint written statement contending that the accident occurred as the petitioner jumped into the road without caring when the vehicles passing by. 2[nd] respondent was driving the car carefully and cautiously and was not responsible for the accident. The car is validly insured with the 3[rd] respondent as of the date of the accident. 3[rd] respondent filed a written statement admitting the insurance of the car bearing Reg. No.TMB/2858 as on the date of the accident. It was contended that the accident happened due to the negligence of the petitioner, who was crossing the road MACA No.2620/2012 4 without caring about the vehicle passing by. The compensation claimed under various heads is highly exorbitant and he prayed for the dismissal of the petition. The Tribunal relied on Exts.A1 to A13 and awarded total compensation of Rs.1,12,000/- with 8% interest per annum from the date of petition till realization. Aggrieved by the amount of compensation awarded by the Tribunal, this appeal is filed. 4. Heard learned counsel on either side. 5. The main contention raised by the counsel for the appellant is that the appellant was aged 37 years at the time of the accident and was employed as a tailor earning a monthly income of Rs.6,000/- per month. Though Ext.A8 disability certificate issued by Dr.T.G.Gopinathan, Orthopaedic and Arthroscopic Surgeon of Aswini Hospital, Thrissur, reported that he has a disability of 12%. MACA No.2620/2012 5 The Tribunal did not accept the same and the doctor was not examined. The Tribunal taking into consideration of the injury sustained took the disability as 6%. Moreover, the Tribunal has erred in taking the income of the appellant as Rs.2,500/- per month. Hence, he prayed for the enhancement of compensation. 6. The learned counsel for the respondent on the other hand submits that just and reasonable compensation has been awarded by the Tribunal and the Tribunal is justified in reducing the permanent disability from 12% to 6% as stated in Ext.A8 disability certificate. In the absence of any other proof to the fact that Ext.A8 is not properly proved, even though the Tribunal has taken the disability as 6% without any evidence. Learned counsel also contended that the multiplier adopted is 16, in fact, 15 has MACA No.2620/2012 6 to be taken as the appellant was aged 37 years at the time of the accident. 7. Though the appellant claims to be a tailor, there is no proof for the same. But at the same time, going by the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]**_ , I am inclined to take the monthly income of the appellant as Rs.4,500/- per month, in the absence of any other proof. Though the appellant has sustained the following procedures in the hospital; “open reduction and internal fixation of right tibia by a 10 mg butress plate and inter fragmentary and bicortical screws. Fasciotomy was also done. Secondary skin grafting was advised after granulation”. Though Ext.A8 certificate was not properly proved, it shows that there is a shortening of the leg by 4 cms and reduction of muscle power, loss of rotation of MACA No.2620/2012 7 movements of right ankle and instability of right knee. Taking into consideration the injury sustained, and the procedure is done on him, I am inclined to accept the disability as 9% instead of 6% as taken by the Tribunal. Thus, the disability compensation can be calculated with a monthly income of 4,500, multiplier as 15, and percentage of disability as 9%, which comes to 4500x12x15x9/100 = 72,900/-. Towards loss of earnings, the Tribunal has awarded Rs.7,500/-; taking Rs.4,500/- as his monthly income for a period of three months, the same will come to Rs.13,500/-. 8. Towards loss of amenities in life, though the appellant claimed Rs.50,000/-, no amount was awarded under that head. The appellant was aged 37 years at the time of the accident and took the procedure done in the hospital for rectifying the defect that occurred due to the accident, a MACA No.2620/2012 8 sum of Rs.10,000/- more are awarded for loss to amenities in life. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl. No.|Head of Claim|Amt. Awarded by<br>Tribunal (Rs.)|Amt. Awarded in<br>appeal (Rs.)| |---|---|---|---| |1.|Loss of permanent<br>disability|28,800/-|72,900/-| |2.|Loss of amenities|……….|10,000/-| |3.|Loss of earning|7,500/-|13,500/-| ||Total|36,300 /-|96,400 /-| ||Amount enhanced is : 96,400 - 36,300 = 60,100/-||| In the result, the appeal is allowed. The appellant is entitled to the enhanced compensation of Rs.60,100/(Rupees Sixty thousand one hundred only) with interest at the rate of 8% from the date of petition till realization. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be MACA No.2620/2012 9 granted set off. The appellant shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. Appeal allowed as above. _Sd/-_ **BASANT BALAJI, JUDGE** ss