Harikuttan @ Harikrishnan v. Radhakrishnan M.G. and The Oriental Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943** **MACA NO. 2523 OF 2009** **AGAINST THE AWARD DATED 09.02.2009 IN OPMV 59/2004 OF THE** ## **ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA APPELLANT/PETITIONER:** HARIKUTTAN @ HARIKRISHNAN AGED 27 YEARS, S/O.RAVI, PULIMOOTTIL COLONY,, MUHAMMA P.O., MUHAMMA PANCHAYATH, WARD - 7,, ALAPPUZHA DISTRICT. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ## **RESPONDENT/RESPONDENTS:** 1 RADHAKRISHNAN M.G., S/O GOPALAN ARAKKATHADAM NIKARTHIL, KADEBHAGAM,, PALLURUTHY, KOCHI CORPORATION DIVISION - 23., KOCHI (OWNER CUM DRIVER OF SCOOTER). 2 THE ORIENTAL INSURANCE COMPANY LTD. REPRESENTED BY ITS BRANCH MANAGER,, CULLEN ROAD, MULLACKAL, ALAPPUZHA. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA NO.2523 OF 2009 2** ## **JUDGMENT** **Dated this the 16[th] day of March, 2022** The appellant was the petitioner in O.P (MV) No.59/2004 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 21.09.2003. It was his case that, on the above said date, while he was wheeling his bicycle along the Alappuzha-Cherthala National Highway, a scooter bearing registration No. KL 7/AJ 211, driven by the first respondent in a negligent manner, hit the bicycle of the appellant. The appellant sustained multiple injuries including a mild extradural haemorrhage of his left side, fracture of left parietal ## **MACA NO.2523 OF 2009 3** bone with cerebral odema, haemorrhage contusion right parietal region. He was treated as an inpatient for a period of ten days at the KVM Hospital, Cherthala and at the Medical College Hospital, Kottayam. The appellant was a wood cutter and a daily labourer by profession and was earning a monthly income of Rs.5000/-. The scooter was also owned by the first respondent and insured with the second respondent. Hence, the appellant claimed a compensation of Rs.2,72,000/- from the respondents, which claim was limited to Rs.2,50,000/-. 3. The first respondent did not contest the proceeding. 4. The second respondent had filed a written statement admitting that the scooter had a valid insurance coverage. However, it was contended that the injuries sustained by the appellant were minor and he was not entitled to the compensation as claimed in the claim petition. ## **MACA NO.2523 OF 2009 4** 5. The appellant had produced and marked Exhibits A1 to A14 in evidence. The disability certificate issued by the Medical Board was marked as Exhibit X1. The second respondent had produced the insurance policy, which was marked as Exhibit B1. 6. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the second respondent an amount of Rs.31,500/- with interest. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.A.T.Anil Kumar, the learned counsel appearing for the appellant/petitioner and Smt.K.S. Santhi the learned counsel appearing for the second respondent-insurer. 9. The point that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. **MACA NO.2523 OF 2009 5** ## **Negligence and liability** 10. Exhibit A4 charge sheet laid by the police proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the insurer and has not proved that the first respondent had violated the insurance policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a wood cutter and a daily labourer by profession and was earning a monthly income of Rs.5000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.1500/-. 12. In **Ramachandrappa v. Manager, Royal** **Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has ## **MACA NO.2523 OF 2009 6** fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2003, I re-fix the notional monthly income of the appellant at Rs.4000/-. ## **Loss of earnings** 14. The Tribunal found that the appellant was indisposed for a period of two months. I confirm the said finding. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award him an amount of Rs.8,000/- under the head ‘loss of earnings’, instead of Rs.3000/- awarded by the Tribunal. ## **Disability** 15. The appellant had produced Exhibit A12 disability certificate issued by the Assistant Professor of Neurosurgery, Medical College Hospital, Alappuzha, wherein it is certified that the appellant has a ## **MACA NO.2523 OF 2009 7** neurological disability of 20%. In addition to the said document, the appellant was referred by the Tribunal to the Medical Board attached to the Medical College Hospital, Alappuzha. The Medical Board had also examined the appellant and found that he has recurrent epilepsy for which he has to be on life long medicines, he has partial loss of memory and he has impairment of equilibrium- minimal. Accordingly, the Medical Board also concluded that the appellant has a permanent disability of 20%. 16. Quite surprisingly, the Tribunal arrived at a finding that there was disagreement between the Doctors who issued Exhibit A12 and Exhibit X1 and, consequently, the Tribunal declined to award the appellant any compensation for loss of earning capacity. 17. I have re-appreciated Exhibit A12 and Exhibit X1. I do not find any disagreement between the two disability certificates. In fact, the Doctor who issued Exhibit A12 and the Medical Board who issued Exhibit ## **MACA NO.2523 OF 2009 8** X1, have concurrently found that the appellant has recurrent epilepsy for which he has to be on life long medicines, the appellant has partial loss of memory and impairment of the equilibrium. Therefore, the finding rendered by the Tribunal in this regard is erroneous and misleading. Hence, I set aside the above finding and I accept the disability assessed by the Medical Board in Exhibit X1. Following the principles laid down in **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], I hold that the appellant has a functional disability of 20%. ## **Multiplier** 18. The appellant was aged 27 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘17’. ## **Loss of earning capacity** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at ## **MACA NO.2523 OF 2009 9** Rs.4000/-, his functional disability at 20% and the multiplier at ‘17’, I award him an amount of Rs.1,63,200/- towards ‘loss of earning capacity’. 20. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 21. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|3000|8000| |2|Transport|750|750| |3|clothing|250|250| |4|By-stander<br>expenses|750|750| ## **MACA NO.2523 OF 2009 10** |5|Extra<br>nourishment|750|750| |---|---|---|---| |6|Medical<br>expenses|1000|1000| |7|Pain and<br>sufferings|12000|12000| |8|Loss of amenities|8000|8000| |9|Future treatment|5000|5000| |10|Loss of disability|0|163200| ||Total|31500|199700<br>rounded off<br>to Rs.200000| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.1,68,500/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 44 days (i.e. the period of delay in filing the appeal and as ordered by this Court on 02.11.2021 in C.M.Application No.2967/2009) and a cost of Rs.5,000/-. The second respondent - insurer is ordered to deposit the enhanced compensation with **MACA NO.2523 OF 2009 11** interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of this judgment. Immediately, on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/16/03/2022