Jacob Kuruvila v. Babu Joseph & Ors. (Respondents) and The Oriental Insurance Company Limited

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 5TH DAY OF JULY 2017/14TH ASHADHA, 1939 MACA.No. 1896 of 2012 () ------------------------- AGAINST THE AWARD IN OPMV 476/2008 of M.A.C.T.,ERNAKULAM DATED 29-02-2012 APPELLANT/PETITIONER: --------------------------------- JACOB KURUVILA, AGED 46 YEARS, S/O.LATE M.J.KURUVILA, MANKOOTATHIL HOUSE, UDAYAMPEROOR.P.O, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM. BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI ANILA PETER SRI.J.VIVEK GEORGE ## RESPONDENTS/RESPONDENTS: ------------------------------------------------- 1. BABU JOSEPH S/O.JOSEPH, VENGACHOTTIL HOUSE, KSRTC ROAD, PERUMBAVOOR.P.O, PIN-683 542. 2. PURUSHOTHAMAN S/O.KESAVAN, C/O. NIRMAL, NADUKUZHIYIL HOUSE, MILLUMPADY BHAGOM, V ENGOLA VILLAGE, PERUMBAVOOR (VIA), PIN-683 554. 3. THE ORIENTAL INSURANCE COMPANY LIMITED EBANEZAR GARDEN, EDAPPALLY, COCHIN-382 024. R3 BY ADV. SRI.M.JACOB MURICKAN R BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. ------------------------------------** ## **M.A.C.A.No.1896 of 2012** **----------------------------------Dated this the 5[th] day of July, 2017** ## **J U D G M E N T** ## Ravikumar, J The injured petitioner comes up in appeal seeking enhancement of the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(M.V.) No.476 of 2008. He filed the said claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 08.01.2008. On that day, while he was standing by the side of Chottanikara-Thiruvankulam public road at Ambadimala, he was knockdown by a mini lorry bearing Registration No.KL-14/1531. On sustaining injuries, he was taken to Ernakulam Medical Centre and he remained there as an inpatient for a period of 20 days. The injury sustained by him resulted in permanent disability. The appellant claimed a compensation of 3,00,000/- and the Tribunal as per the₹ impugned award granted a total compensation of 94,000/-₹ with interest @ 8% per annum from the date of petition, till realisation. The appellant seeks enhancement of the quantum of compensation awarded by the Tribunal in this appeal. M.A.C.A.No.1896 of 2012 2 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent insurance company. The rival contentions raised before us reveal that there is no dispute with regard to the cause of accident, as also the liability of the third respondent to indemnify the insured owner of the offending vehicle. Hence, we proceed to consider the question as to whether or not the appellant is entitled to get enhanced compensation. 3. The learned counsel for the appellant contended that the Tribunal has fixed the monthly income erroneously disregarding the fact that the accident occurred in the year 2008 and the appellant was then aged 43 years. It is further contended that the Tribunal went wrong in reducing the extent of disability certified by Ext.A7. It is also contended that the compensation granted by the Tribunal under different heads, as can be seen from the schedule of compensation given in the impugned award, are on the lower side and therefore, the same require an upward modification. The learned counsel appearing for the third respondent resisted the said contention and submitted that the appellant was granted just compensation considering the injuries sustained and therefore, no appellate M.A.C.A.No.1896 of 2012 3 ## interference is called for. 4. We will firstly consider whether there is any substance in the contention of the appellant that the Tribunal erroneously fixed the monthly income. We are of the view that that there is no substance in the said contention. In paragraph 16 of the impugned judgment it is specifically stated that in the claim petition, the appellant claimed his monthly income as 3,000/-.₹ Evidently, the income claimed was accepted in toto by the Tribunal. Hence, the appellant cannot now turn around and contend that the Tribunal erroneously fixed the monthly income. 5. The further grievance of the appellant is with regard to the assessment of permanent disability made by the Tribunal. It is true that as per Ext.A7 certificate, the disability of the appellant sustained due to the accident was assessed as 9%. To prove the said document, the Doctor who issued the same was examined as PW1 on the side of the appellant. The grievance of the appellant is that even after examining the Doctor who issued Ext.A7, the Tribunal had declined to accept the certification of permanent disability as per Ext.A7, in toto. We have carefully considered the discussion with respect to the M.A.C.A.No.1896 of 2012 4 said aspect by the Tribunal. A perusal of paragraph 15 of the impugned award would reveal that the Doctor, who issued Ext.A7 while being examined as PW1, deposed that at the time of examination internal fixations were there. If internal fixations were there, how could the permanent disability be assessed ? In such circumstance, we do not find any reason to hold that the Tribunal went wrong in reducing the extent of disability certified, for the purpose of calculating the compensation for permanent disability. Paragraph 15 would further reveal that the Tribunal had the opportunity to see the appellant/claimant. It was presumed that the appellant had disability on the left lower limb owing to fracture of G-II Lateral condyle. The patella was also dislocated. When he was present before the Court, the Tribunal noted that he had difficulty in walking. In the said circumstance the Tribunal assessed the partial permanent disability as 5% after effecting deduction of the permanent disability assessed under Ext.A7. In the light of the reasons assigned by the Tribunal for effecting such deduction, we do not find any reason to interfere with the assessment made by the Tribunal. The appellant was aged 43 years at the time of accident and the Tribunal adopted the 5 M.A.C.A.No.1896 of 2012 multiplier for calculation purpose as 15. As per the decision of the Apex Court in _**Sarla Verma v. Delhi Transport Corporation**_ _**[2010 (2) KLT 802 (SC)],**_ the multiplier applicable to persons belonging to the age group of 41-45 is 14. Therefore, it can be said that the Tribunal has incorrectly adopted the multiplier. As against the claim of 60,000/-, the Tribunal granted an amount₹ of 30,000/- towards pain and sufferings. Ext.P3 would reveal₹ that the appellant had sustained the following injuries in the accident : _“Laceration on left knee, open fracture of lateral condyle of left femur with dislocation of patella.”_ The nature of the injuries sustained by the appellant as revealed from Ext.A3 wound certificate would constrain us to hold that the appellant was adequately compensated under the said head. Considering the fact that disability of the appellant is only 5%, there is absolutely no reason to raise a grievance against the compensation granted under the head loss of amenities, under which head the Tribunal has granted an amount of 20,000/-. ₹ 6. However, on perusing the impugned judgment as also the schedule of compensation, we find that no amount whatsoever was granted by the Tribunal towards the expenses M.A.C.A.No.1896 of 2012 6 for extra nourishment and damage to clothing. Taking note of the fact that the appellant had been an inpatient for a period of 20 days, the disinclination shown by the Tribunal to award any amount towards expenses for extra nourishment cannot be sustained. Taking note of the year of the accident and the number of days of hospitalisation, we are inclined to grant ₹1,000/-. The nature of the injuries would suggest that the dresses worn by him must have been damaged. In such circumstance, we are inclined to grant an amount of 1,000/-₹ towards damage to clothing. The Tribunal took only three months as the period for calculating compensation towards loss of earnings. Taking into account the fact that there was open G-II fracture on Lateral condyle and the patella was dislocated, we are of the view that four months period ought to have been taken for calculating the compensation towards loss of earnings. In such circumstance, an amount of 3,000/- is₹ granted additionally under the said head. Despite the persuasive arguments of the learned counsel for the appellant, we do not find any reason to interfere with the assessment of compensation made by the Tribunal under any other head. Therefore, the appellant is entitled only to get an additional 7 ## M.A.C.A.No.1896 of 2012 compensation of 5,000/-, over and above what has been₹ awarded by the Tribunal. Consequently, this appeal is allowed. An additional compensation of 5,000/- is granted. The third respondent is₹ directed to deposit the additional compensation granted in this appeal along with interest @ 8% per annum from the date of petition till realisation, within a period of one month from the date of receipt of a copy of this judgment. Needless to say that the third respondent will be at liberty to recover the said amount from the first respondent, after effecting the payment. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** AV /True Copy/ P.A to Judge