Jehu Ipe Joy v. Priyesh Kumar S. and The National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938 MACA.No. 478 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 822/2007 of ADDL.MACT,KOTTAYAM DATED 09-05-2011 APPELLANT(S)/PETITIONER: --------------------------------- JEHU IPE JOY S/O. VARGHESE, MAVUNKAL HOUSE, ANICADU P.O., MALLAPPALLY, KOTTAYAM DISTRICT. ## BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S)/RESPONDENTS : --------------------------- ## 1. PRIYESH KUMAR S. S/O. SASIDHARA KURUP, EDATHIPARAMBIL, MARIAPPALLY P.O., KOTTAYAM-686023 ## 2. THE NATIONAL INSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, C.S.I.SQUARE, BAKER HILL, KOTTAYAM-686001 R2 BY ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.478 OF 2012** ## **==========================** Dated this the 22[nd] day of November, 2016 ## **JUDGMENT** _Ravikumar, J._ The victim of a motor vehicle accident comes up in appeal raising grievance against the quantum of compensation fixed by the Motor Accidents Claims Tribunal, Kollam in O.P.(MV).No.822 of 2007. The claim petition was filed under section 166 of the Motor Vehicles Act seeking a total compensation of `5,00,000/- The accident that led to the filing of the said claim petition occurred on 30.8.2006. While he was riding his Activa scooter bearing Reg.No.KL-3G-2550, the offending vehicle which is a car bearing Reg.No.KL-5Q-9964 driven by the first respondent dashed against the scooter. Consequently, he sustained injuries. The injuries sustained by him resulted in permanent disability. As per the impugned award, **M.A.C.A.478/2012** 2 the Tribunal granted a total compensation of `80,261/- @ 7.5% interest from the date of the petition till realisation along with cost of `1,000/-. The appellant-petitioner seeks for enhancement of the quantum of compensation awarded by the Tribunal. 2.We have heard the learned counsel for the appellant and also the learned counsel for the second respondent. Since the liability to indemnify the insured-owner of the vehicle is not in dispute, it is absolutely unnecessary to issue notice to the first respondent. In such circumstances, issuance of notice to the first respondent is dispensed with and we are proceeding to consider the appeal on merits, at the admission stage itself. 3.The learned counsel for the appellant submits that the compensation fixed by the Tribunal under the head 'permanent disability' is too low. It is submitted that the appellant was deprived of just compensation under that head owing to the erroneous fixation **M.A.C.A.478/2012** 3 of the monthly income, wrong identification of the multiplier as also the disinclination to accept the entire percentage of disability assessed by the medical board without any reason. It is the further submission that the Tribunal did not grant adequate compensation under the heads 'pain and suffering' and 'loss of amenities'. The learned counsel for the second respondent-insurance company submitted that the fixation of the monthly income as `3,000/- cannot be said to be faulty reckoning the age of the appellant. Admittedly, he was aged only 18 years on the date of the accident and in the absence of any evidence regarding his occupation, it can only be said that the Tribunal fixed the monthly income correctly, for calculation purpose. But at the same time, though the learned counsel for the second respondentinsurance company submitted that there is no reason to interfere with the identification of the multiplier as also the assessment of disability, we are of the view that there is substance in the contention of the learned counsel for the appellant raising grievance against the said aspects. There is no dispute with respect to the age of the appellant **M.A.C.A.478/2012** 4 on the date of the accident. He was aged only 18 years. In the light of the schedule given in the decision in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the multiplier applicable is 18. Evidently, the Tribunal took '16' as the multiplier. Therefore, we adopt the multiplier as '18'. Ext.A1 is the disability certificate issued by the medical board attached to the Medical College Hospital, Kottayam. The medical records including Ext.A6 wound certificate and Ext.A11 discharge summary would reveal that in the accident, the appellant sustained fracture dislocation of right hip, common peronel part of sciatic nerve palsy, diastasis right sacroiliac joint, femoral head fracture and patella tenderness. Considering the aforesaid aspects and also taking note of the fact that the right hip flexion was only 90°, abduction 20° and there is no internal rotation and external rotation was only 20°, the medical board assessed the permanent disability as 10%. A scanning of the impugned award would reveal that no reason whatsoever was assigned by the Tribunal for reducing the permanent disability assessed by the medical board. It is also to be noted that **M.A.C.A.478/2012** 5 one of the members of the medical board was examined as PW1. In such circumstances, taking note of the nature of the injuries and the reasons assigned in Ext.A1 certificate and also the fact that one of the members of the medical board was examined, we are of the view that there is absolutely no reason for reducing the percentage of disability assessed as per Ext.A1. In such circumstances, the entire percentage of disability assessed under Ext.A1 viz., 10% is to be taken for calculation purpose. In such circumstances, taking note of the aforesaid aspects, the compensation payable for permanent disability has to be re-assessed. On such re-assessment, the appellant will be entitled for an additional amount of `36,000/- (3000x12x18x10/10028800). It is granted. Taking note of the nature of the injuries as revealed from Exts.A6 and A11 discharge summary, there can be little doubt with respect to the fact that the appellant must have endured excruciating pain. Therefore, we award `8,000/- more under the head pain and suffering. Taking note of the nature of the injuries and their aftermath and also the particular part on which he sustained such **M.A.C.A.478/2012** 6 injuries, we are of the view that the amount granted by the Tribunal towards loss of amenities is on a lower side. In such circumstances, we are inclined to grant an additional compensation of `13,000/under the said head. In the light of the aforesaid discussions, the appellant would be entitled to get a total additional compensation of `57,000/-. It is granted. The said amount will carry 8% interest from the date of the petition till resalisation. The second respondent is directed to deposit the said amount along with interest thereon within 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)** **spc/** **M.A.C.A.478/2012** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.478/2012** 8 **JUDGMENT September, 2010** **M.A.C.A.478/2012** 9