Jiju v. P. Govindankutty and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 12TH DAY OF AUGUST 2013/21ST SRAVANA, 1935** ## **MACA.No. 1439 of 2010 ( )** **-------------------------OP(MV) NO. 3793/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ------------------** ## **APPELLANT / PETITIONER :** **-----------------------------------------** **JIJU, S/O.MATHEW, PERAKATH HOUSE, JELLIPARA P.O., ATTAPADI, AGALI MANNARKAD VIA., PALAKKAD DISTRICT.** ## **BY ADV. SRI.P.V.CHANDRAMOHAN** ## **RESPONDENTS / RESPONDENTS :** **---------------------------------------------------** **1. P.GOVINDANKUTTY, S/O.KESAVAN NAIR, PALLIKATTIL HOUSE, P.O.KOTTAPURAM, SREEKRISHNAPURAM PALAKKAD DISTRICT, PIN-680 594.** ## **2. UNITED INDIA INSURANCE CO.LTD.,** **REPRESENTED BY DIVISIONAL MANAGER UNITED INDIAN INSURANCE CO.LTD., DIVISIONAL OFFICE THRISSUR, PIN-680 001.** **R1 BY ADV. SRI.MANSOOR.B.H. R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA), SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.1439 of 2010 -----------------------------------------------------------------Dated this the 12[th] day of August, 2013 J U D G M E N T ## K. Ramakrishnan, J. The claimant in O.P.(M.V).No.3793/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur is the appellant herein. The appellant preferred the claim for compensation for the injuries and consequential disabilities suffered by him on account of the rash and negligent driving of the vehicle by the first respondent, who is the owner cum driver of the vehicle involved and insured with the 2[nd] respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the rash and negligent driving of the vehicle by the first respondent and the petitioner was travelling in the goods vehicle as owner of the goods accompanying the goods and awarded a total compensation of ₹ 65,823/- rounded to₹.66,000/- on various heads as follows: M.A.C.A. No.1439 of 2010 2 |Sl.<br>No.|Head of claim|Amount awarded<br>₹| |---|---|---| |1|Loss of earning|5000| |2|Transportation|3000| |3|Extra nourishment|1500| |4|Damages to clothing|500| |5|For treatment|15323| |6|For bystander|1500| |7|For pain and suffering|15000| |8|For disability (30000x16x5%)|24000| ||Total|65823<br>rounded to<br>₹66000| Dissatisfied with the quantum of compensation awarded by the tribunal, the appellant has come up before this court with the above appeal. 2. Heard learned counsel for the appellant and learned counsel for the insurance company. 3. The counsel for the appellant submitted that the appellant was aged only 19 years and he was a wholesale banana merchant, earning 6,000/- per month₹ and this fact was proved by evidence as well. But, the tribunal has taken only 2,500/- as his monthly income,₹ which is very low. Further, he suffered serious injuries and Ext.A9 disability certificate issued by the Assistant Professor, Department of Orthopaedic, Medical College Hospital, Thrissur, shows that he has 18% disability. But, the tribunal has taken only 5% disability for assessing the M.A.C.A. No.1439 of 2010 3 loss of earning capacity. No amount was awarded under the head loss of amenities in life as well. Further, the amounts spent for Ayurvedic treatment has not been allowed by the tribunal, which is also unsustainable in law. The amounts awarded under various heads are also less. According to the counsel for the appellant, he is entitled to get enhancement on all heads. 4. On the other hand, the counsel for the insurance company submitted that, no evidence has been adduced on the side of the petitioner to prove his income. So, the tribunal was justified in fixing the monthly income as 2,500/- per month. Further, there is no evidence to₹ show that the disability assessed by the doctor, who was not been examined, has affected his earning capacity as well. So according to the learned counsel for the appellant, the amount awarded by the tribunal is just and proper and no interference is called for. 5. We have considered the rival contentions of both parties in detail. 6. It is an admitted fact that the accident occurred when the petitioner was accompanying the M.A.C.A. No.1439 of 2010 4 banana carried in the vehicle, as its owner and this fact was accepted by the tribunal as well. Further, the accident occurred in the year 2003. Considering the fact that he is an youngster of 19 years and engaged in the sale of banana and his income fixed by the court below as ₹ 2,500/-, appears to be on the lower side. So, we fix the monthly income of the appellant as 3,000/- per month.₹ If 3,000/- is taken as his monthly income, the loss of₹ earning, during the period of treatment will come to ₹ 6,000/- instead of 5,000/- awarded by the tribunal. ₹ 7. It is seen from the documents produced that he sustained the following injuries. “lacerated wound 3x1x1 c.m on left forehead laterally, minimal wedge fracture of T11 and T12 were confirmed, numbness of both lower limbs from umbilical level, difficulty to walk and giddiness etc.”. However, Ext.A9 disability certificate issued by the Assistant Professor, Department of Orthopaedic, Medical College Hospital, Thrissur shows the following difficulties: “Stiffness of lumbar spine with para spinal spasm, limitation of 25% of movements of the lumbar spine, difficulty in bending forward, M.A.C.A. No.1439 of 2010 5 squatting and lifting weight, numbness of both lower limbs, recurrent head ache, giddiness and loss of memory”. 8. He had undergone treatment as inpatient for 30 days. But the tribunal has awarded only 1,500/-₹ under the head bystanders expenses. He might have spent more amount than the amount fixed by the tribunal. So, we enhance the same to 4,500/- from₹ ₹ 1,500/- awarded by the tribunal. Considering these aspects and also the period of treatment undergone by him, the amount awarded under the head pain and suffering also appears to be on the lower side and we enhance the same to 20,000/- from 15,000/- awarded₹ ₹ by the tribunal. 9. Applying the principle laid down in the decision reported in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the multiplier to be taken for the age group up to 25 is 18. But the tribunal has taken only 16 as multiplier. Further considering the fact that he had disability to his lumbar spine and his movements of the leg has been restricted on account of the disability, this will have greater impact M.A.C.A. No.1439 of 2010 6 on his earning capacity as well. So, we re-fix the percentage of disability for assessing occupational disability as 10% instead of 5% taken by the tribunal. Taking the monthly income of the appellant as 3,000/-₹ per month, the multiplier as 18 and the percentage of disability as 10%, the appellant will be entitled to get an amount of 64,800/- under the head loss of earning₹ power (3,000x12x18x10%) instead of 24,000/- awarded₹ by the tribunal and we award the same under that head. No amount was awarded under the head loss of amenities in life. He had injuries to his lumbar spine and movement of the lumbar spine is also restricted. The doctor has assessed 15% permanent disability for the limb. He was aged only 19 years at the time of the accident. He will have to live with these difficulties for the remaining period of his life as well. The disability certificate issued by the doctor, after 5 years of the accident. So considering these aspects, we feel that an amount of ₹ 40,000/- can be awarded under the head loss of amenities in life, which has not been awarded by the tribunal. M.A.C.A. No.1439 of 2010 7 10. The tribunal has correctly disallowed the expenses incurred for Ayurvedic treatment, as nothing has been mentioned in the certificate as to whether this amount was incurred for treatment relating to the injuries sustained in a motor vehicle accident. We do not find that no reason to enhance the amounts awarded under other heads as the amount awarded is just and proper. In all the appellant will be entitled to get an additional compensation of 89,800/-, over and above the₹ amount awarded by the tribunal, which the 2[nd] respondent is liable to pay with 9% interest from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss