## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH**
**WEDNESDAY, THE 27TH DAY OF JULY 2016/5TH SRAVANA, 1938**
**MACA.No. 2147 of 2012 () -------------------------**
## **AGAINST THE AWARD IN OPMV 1715/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 30-06-2012**
## **APPELLANT/PETITIONER:-:**
## **------------------------**
**JAYALAL, PALAPARAMBIL HOUSE, KAKKAMTHODU BHAGOM, VAZHAPPALLY EAST KARA.**
## **BY ADVS.SRI.K.A.HASHIM SRI.M.I.ISMAIL**
## **RESPONDENT(S)/RESPONDENTS:-:**
**----------------------------**
## **1. RINIL SHEREEF @ BABU,**
- **THAZHCHAYIL, MUNICIPAL WARD NO.30, CHANGANACHERRY, PIN - 686 103.**
**2. KUNJUMOL JAMES,**
## **THOTTSSERIYIL, MUNICIPAL WARD NO.28, CHANGANACHERRY, PIN - 686 103.**
## **3. THE UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, KOTTAYAM, PIN - 686 001.**
## **R3 BY SRI.JOHN JOSEPH VETTIKAD**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **SHG**
## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.**
**- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2147 of 2012**
**- - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of July, 2016**
## **J U D G M E N T**
## **Ravikumar, J.**
The injured/claimant comes up in appeal feeling aggrieved by the quantum of compensation granted by the Tribunal as per the judgment and award in O.P.(M.V.)No. 1715/2008. The appellant filed the claim petition under Section 166 of the M.V. Act seeking a total compensation of Rs.2,50,000/- for the injury sustained by him in a motor vehicle accident that occurred on 29.4.2008. He was a passenger in a Santro car which was then driven by the first respondent. At about 5.30 p.m. while the said car reached at Nedumudy, a motorcycle hit on the car and thereafter hit against a goods autorickshaw. As an impact of the said accident, the appellant fell down from the car and sustained injuries. It is in the said circumstances that alleging rashness and negligence from the part of the first respondent and taking up necessary averments to make the
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second respondent vicariously liable and the third respondent, the insurer of the aforesaid vehicle, to indemnify the 2[nd] respondent that the above mentioned claim petition was filed. Before the Tribunal no oral evidence was adduced by both sides and on the side of the respondents no documentary evidence was also adduced. The appellant got marked Exts.A1 to A6. The Tribunal upon consideration of the rival contentions and the evidence on record granted a total compensation of Rs.99,100/- with interest at the rate of 7.5% from the date of petition till realisation. As noticed hereinbefore it is soliciting enhancement of the quantum of compensation that the above appeal has been preferred.
2. We have heard the learned counsel for the appellant as also the learned counsel appearing for the 3[rd] respondent insurer. In the absence of any dispute regarding the accident, the cause of accident as the negligence from the part of the first respondent and the insurance coverage of the offending vehicle the only
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surviving question to be considered is whether or not the appellant is entitled to get enhanced compensation. In that regard, the learned counsel appearing for the appellant contended that the Tribunal fixed the monthly income only at Rs.4,000/- and assessed the percentage of permanent disability only at 5%. It is the submission that it is the erroneous estimation of the percentage of disability and the
monthly income that resulted in denial of just compensation. The learned counsel appearing for the appellant further contended that a perusal of the schedule of compensation given in the judgment would reveal that the Tribunal granted only meagre amounts under different heads such as loss of earning, compensation for pain and suffering and loss of amenities. In such circumstances, it is contended that an upward modification of the amounts granted under the aforesaid heads is required.
3. Per contra, the learned counsel appearing for the 3[rd] respondent contented that the Tribunal fixed the monthly income reasonably taking into account the fact that
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the appellant had failed to produce any evidence to establish his averments regarding the occupation and income taken up in the claim petition. It is also contended that the Tribunal cannot be said to have erred in assessing the percentage of permanent disability as appellant/injured petitioner had not produced any disability certificate before the Tribunal. But the learned counsel appearing for the appellant, at this juncture, contended that in fact Ext.A6 disability certificate was produced by the appellant. It is discernible from Ext.A6 that the doctor who issued the same assessed the permanent disability of the appellant and certified it as 12%.
4. Ext.A6 is in fact, a treatment certificate issued by one Orthopaedic Surgeon. The same was not legally brought on record by examining the doctor who issued the same. As noticed hereinbefore, the appellant had not produced any certificate of disability issued by a duly constituted Medical Board. In such circumstances, we are of the view that the Tribunal cannot be found fault with in
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not accepting the entire percentage of disability certified under Ext.A6 as the permanent disability of the appellant for the purpose of calculating compensation for permanent disability. But at the same time, taking into account the fact that the Tribunal had accepted the case of the appellant that the injuries sustained by him resulted in permanent disability, we are of the view that the nature of the injuries sustained by him as is evident from Exts.A4 and A5 can be considered to reassess the same. They would go to show that the appellant had sustained blunt chest trauma and fracture on 2[nd] , 3[rd] , 4[th] and 6[th] ribs right, zygoma fracture right with fracture temporal bone. It is thus evident from Ext.A5 that the appellant had sustained fractures. When the said fact is evident from the medical records produced before the Tribunal. We are of the considered view that the failure on the part of the appellant in not certificate legally bringing on record Ext.A6 cannot be a reason for discarding the fact that he had incurred permanent disability especially the Tribunal had also convinced of the fact that the
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appellant had incurred permanent disability. Taking note of the nature of the injury sustained by the appellant including fracture of bones as mentioned hereinbefore evident from Ext.A6, we are of the view that it is only proper to take the percentage of disability incurred in the accident as 7%. Accordingly, the permanent disability is taken as 7%.
5. Now with respect to the grievance of the appellant regarding the fixation of the monthly income as Rs.4,000/- we are of the view that certain factors are to be taken into account. True that the appellant had not adduced any evidence in support of his contentions taken up in the claim petition regarding the occupation and income. But it is a fact that the accident occurred on 29.4.2008. The appellant was then aged 39 years. We are of the view that in the matter of fixation of the monthly income the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** can be taken as a guidance.
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In that case in respect of a coolie who met with an accident in the year 2004 the Tribunal notionally fixed the monthly income as Rs.4,500/-. The accident in question occurred after about four years since the occurrence of the accident involved in the case before the Hon'ble Apex Court. In such circumstances, we are of the view that it is only proper to take Rs.5,000/- as the monthly income of the appellant notionally for calculation purpose. There is no dispute regarding the multiplier adopted by the Tribunal. The Tribunal correctly adopted the multiplier as 15 with reference to the age of the appellant. In the said circumstances, with the modified monthly income and the reassessed percentage of permanent disability, the amount payable for permanent disability has to be worked out. Based on such calculation, the appellant is entitled to get an amount of Rs.27,000/- additionally. Taking into account the fact that we have re-fixed the monthly income as Rs.5,000/-, for the same period fixed by the Tribunal the appellant is entitled to get a proportionate enhancement on
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compensation for loss of earning. Accordingly, he is entitled to get an amount of Rs.5,000/- more under that head. Towards pain and suffering the Tribunal granted an amount of Rs.23,000/-. We have already taken note of the grievous nature of the injuries sustained by the appellant in the accident. It is obvious that the appellant must have had excruciating pain. The nature of the injury would also reveal that it must have restricted his enjoyment in life for quite long terms. Taking note of such aspects, we are of the view that under the head compensation for 'pain and suffering' he is entitled to get Rs.7,000/- more and towards loss of amenities he is entitled to get Rs.5,000/- more. Towards damage to clothing the Tribunal granted only an amount of Rs.500/-. We are inclined to grant Rs.500/- more under that head as the dresses worn by him on that day must have been fully damaged.
6. In the light of the discussions as above, the appellant is entitled to get a total enhanced amount of Rs.44,500/- (Rupees forty four thousand five hundred only).
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It is awarded. The additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent is directed to deposit the enhanced amount along with interest within a period of two months from the date of receipt of a copy of this judgment.
There will be no order as to costs.
Sd/-
**C.T. RAVIKUMAR**
**JUDGE** Sd/-
**K.P. JYOTHINDRANATH JUDGE** //True copy//
P.A. TO JUDGE
shg/
