Jibu Jose v. E.M. John & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938 MACA.No. 322 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 1320/2007 of M.A.C.T OTTAPPALAM DATED 20-09-2011 APPELLANT(S)/PETITIONER: ------------------------------- JIBU JOSE S/O.JOSE, RESIDING AT KOTTIPARAMBIL HOUSE, P.O.VAIKOM WEST GATE, KOTTAYAM DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENT(S):RESPONDENTS ----------------------------------- 1. E.M.JOHN RESIDING AT ELAMPALASSERIL HOUSE, 37/2177, KATHRIKADAVU, KALOOR, ERNAKULAM-682 017. 2. AJITHKUMAR - S/O.G.VELAPPAN NAIR, RESIDING AT SIVAPRABHA, VADAKKE NADA, P.O.VAIKOM, KOTTAYAM-686 141. 3. THE UNITED INDIA INSURANCE COMPANY LIMITED OPPOSITE TVS, N.H.ROAD, KALOOR, ERNAKULAM-682 017. 4. MANAGING DIRECTOR - JASS PACK SERVICES PRIVATE LIMITED, 24/188, PERUMANNUR JETTY ROAD, WEST ISLAND, KOCHI-682 003. 5. PRAKASH.S. S/O.SREENIVASAN, RESIDING AT KALATHIPARAMBIL HOUSE, CHIRATTAPALM, COCHIN-682 003. 6. THE ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, V.SHAN COMPLEX, 6, 990B, BAZAR ROAD, MATTANCHERRY, COCHIN-682 002. R6 BY ADV. SRI.TITUS MANI R3 BY ADV. SRI.THOMAS T.VARGHESE R6 BY SRI.GEORGE CHERIAN (THIRUVALLA) R3 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** **& K. P. JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.322 OF 2012 ==========================** Dated this the 9[th] day of June, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is preferred against the judgment and award dated 20.9.2011 in O.P.(MV).No.1320 of 2007 of the Motor Accidents Claims Tribunal, Ottapalam. The appellant was the petitioner therein. He filed the said claim petition seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 9.12.2004. On that fateful day, he was travelling in a car bearing Reg.No.KL 7-AG-6811 driven by the second respondent. When they reached near ITC bus stop at Mangalam, a lorry bearing Reg.No.KL07 AS 2757, driven by the fifth respondent dashed against the car. The appellant sustained injuries. Immediately, he was taken to Elite **M.A.C.A.322/2012** 2 Mission Hospital, Thrissur and therefrom, he was referred to Lissie Hospital, Ernakulam. He had been an inpatient there for a period of 19 days. Going by Ext.A13 wound certificate, he sustained the following injuries:- 1.Lacerated injury both lips. 2.Comminuted sub trochanteric fracture of right femur. It is in the said circumstances that the aforementioned claim petition was filed seeking a total compensation of `4,25,000/-. 2.To establish his claim, the appellant got examined one Dr.Jacob P.J who issued Ext.A16 disability certificate as PW1 besides getting examined the other passenger Sakkir Hussain as PW2. On evaluation of the evidence on record and appreciating the rival contentions, the Tribunal passed the impugned award for a total compensation of `1,15,200/- with interest @ 7% from the date of the petition viz., 11.12.2007 till realisation. It is dissatisfied with the **M.A.C.A.322/2012** 3 quantum of compensation soliciting enhancement that the captioned appeal has been preferred. 3.Heard both sides. 4.The main grievance of the appellant is that the Tribunal had erred in fixing the multiplicand as also the multiplier and the erroneous fixation of the multiplicand and multiplier culminated in erroneous estimation of compensation. The appellant has taken a specific contention with respect to his occupation and income in the claim petition. It is stated therein that he was the owner of the Imperial Finance, Vaikom and the proprietor of 'Jose Timbers, Vaikom' and was earning `10,000/- per month. To establish the income, the appellant has produced SARAL as also the tax payers counter foil. It is the submission that in the light of the said documents, there was absolutely no justification for the Tribunal to take the annual income only as `75,430/- and to take the monthly **M.A.C.A.322/2012** 4 income as `5,000/-. The learned counsel also contended that taking note of the fact that the appellant was aged only 34 years at the time of the accident, the Tribunal ought to have taken 16 as the multiplier instead of 15. The said submission is founded on the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)].** It is further contended that the Tribunal granted only meagre amounts under the heads loss of earning, damage to clothing, pain and suffering and loss of amenities. In the light of the rival contentions, firstly, we will consider the question whether the Tribunal went wrong in fixing the multiplicand as also the multiplier. Ext.A21 SARAL as also the tax payers counter foil would reveal that the total annual income of the appellant for the assessment year 2005-2006 was `1,25,432/-. The tax paid towards taxable income for the assessment year was `4,168. In the light of the above decision, the starting point for computation of compensation shall be the annual income less tax paid. Taking into such aspects, we are of the view that the monthly income fixed by the Tribunal for the **M.A.C.A.322/2012** 5 purpose of calculating the compensation payable for permanent disability incurred by the appellant in the accident is too low. In the light of the above discussions, the monthly income of the appellant has to be taken as `10,000/-. In the light of the decision in **Sarla Verma** 's case and taking into account the age of the appellant at the time of the accident viz., 34 years, the multiplier to be adopted is 16. 5.We will now consider the question whether the grievance of the appellant that the Tribunal had erred in not taking the entire percentage of disability certified under Ext.A16, is sustainable or not. Ext.A16 is the disability certificate issued by PW1. Having gone through Ext.A16, we are not inclined to accept the aforesaid contention of the appellant. True that 14% disability is certified by PW1 thereunder. The split up of the same reads thus:- 1.United fracture of femur (R) with pain-4 2.Shortening of (R) leg (Femoral component)-2 3.Sciatic nerve palsy (75% recovery)-8 **M.A.C.A.322/2012** 6 6.Going by the notification issued by the Government of India in the matter of evaluation of percentage of permanent impairment based on the uniform definitions, it can be seen that if the shortening is only 1.8 cm, no disability can be attributed. In other words, merely because there is shortening of 1.8 cm on the right leg, it cannot be said that the appellant had incurred permanent disability owing to the accident for the purpose of getting compensation. As regards the sciatic nerve palsy, the evidence let in by the appellant would not reveal that it incurred as a direct impact of the injuries sustained in the accident or that it got developed due to the injuries sustained in the accident. But at the same time, it is evident that in the accident he had sustained fracture of femur. In such circumstances, we do not find any fault with the Tribunal in taking the percentage of permanent disability as 5% for the purpose of calculating compensation therefor. In view of the fact that we have taken the monthly income as `10,000/- and adopted the multiplier as 16, a re-assessment of the compensation for permanent disability has to be effected. On such re- **M.A.C.A.322/2012** 7 assessment, the appellant is entitled to get an amount of `51,000/additionally (10000x12x16x5/100=96000-45000). Towards loss of earning, the appellant claimed an amount of `60,000/- and the Tribunal granted an amount of `15,000/-. Taking note of the injuries sustained by the appellant in the accident, fixation of the period of loss of earning only as three months calls for interference. The period required for recovery and consequently, the period of loss of earning ought to have taken slightly longer than three months. Taking into account the aforesaid circumstances, we are of the view that the period has to be taken as five months. In such circumstances, the appellant is also entitled to get an amount of `35000/- over and above the amount granted by the Tribunal under that head (50000-15000). Towards damage to clothing, the appellant claimed an amount of `1000/- and the Tribunal granted only `500/-. The nature of the injuries would undoubtedly suggest that in the accident, the dresses worn by the appellant must have been damaged. In such circumstances, there is no reason for declining the entire amount **M.A.C.A.322/2012** 8 claimed by the appellant. In short, we award `500/- more under that head. Towards pain and suffering, the appellant claimed an amount of `40,000/- and the Tribunal granted an amount of `15,000/-. The nature of the injuries revealed from Ext.A3 as also Ext.A8 discharge certificate and also the period of treatment underwent by the appellant would reveal that he had to endure severe pain for a considerably long period. In such circumstances, we are inclined to award `10,000/more under that head. Taking into account the aforementioned relevant factors, the amount granted by the Tribunal towards claim of `40,000/- under the head loss of amenities is too low. We are inclined to grant an amount of `15000/- more under that head. In the light of the discussions as above, the appellant is entitled to get a total enhanced amount of `1,15,000/-. It is awarded. The enhanced amount will carry interest @ 8% from the date of the petition till realisation. After considering the evidence on record, the Tribunal found that the cause of the accident was the rash and negligence on the part of the second respondent who was the driver of the car **M.A.C.A.322/2012** 9 bearing Reg.No.KL 7-AG-6811 and therefore, respondents 1 to 3 are jointly and severally liable to pay the compensation. Despite such finding, no appeal has been preferred by the said respondents. In such circumstances, we do not intend to interfere with the said finding of the Tribunal. The third respondent is directed to deposit the enhanced amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment failing which the amount remaining to be paid will carry interest at 9% from the date of the petition. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K. P. JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.322/2012** 10 **M.A.C.A.322/2012** 11 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.322/2012** 12