Jinto John v. V.J. Linto, Praveen and The New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939 MACA.No. 2783 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 802/2008 of MACT, IRINJALAKUDA DATED 22-11-2012 APPELLANT(S)/PETITIONER IN O.P.(MV): -------------------------------------------- JINTO JOHN, S/O.JOHN, NELLIPULLY HOUSE, KALPARAMBU, DESOM POOMANGALAM VILLAGE, ARIPALAM P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS IN O.P.(MV): ------------------------------------------------- 1. V.J.LINTO, VETTIYADAN HOUSE, KADUPPISSERY P.O., THRISSUR 680698 2. PRAVEEN, S/O.PRAKASAN, THATTARUPARAMBIL HOUSE, KADUPPISSERY P.O., THRISSUR DISTRICT - 680698. 3. THE NEW INDIA ASSURANCE COMPANY LTD, VELLANIKKARAN BUILDINGS, IRINJALAKUDA - 680 121. R3 BY ADV. SRI.P.JAYASANKAR R3 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **“C.R”** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.2783 OF 2012 ==========================** Dated this the 17[th] day of July, 2017 ## **JUDGMENT** _Ravikumar, J._ The injured petitioner comes up in appeal seeking enhancement of the quantum of compensation granted by the Motor Accidents Claims Tribunal, Irinjalakuda as per the award dated 22.11.2012 in O.P.(MV).No.802 of 2008. He filed the said claim petition under section 166 of the Motor Vehicles Act seeking a compensation of Rs.7,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 13.01.2008. On that day, while he was riding his motor cycle, another motor cycle bearing Reg.No.KL-8/C 3369, ridden by the second respondent hit against it. Going by Ext.A3 wound certificate and Ext.A4 discharge summary, he sustained the following injuries:- **M.A.C.A.2783/2012** 2 1. Head injury with left temporal SDH with intracerebral haematoma and hemorrhage, contusion temporal lobe. 2. Focal subarachnoid haemorrhage, diffuse cerebral oedema with mass effect and midline shift. Opacque paranasal sinuses and mastoid air cells, fractures of right occipital, left frontal, temporal bones and lateral walls of left maxillary sinus. 3. Decreased mass effect with contusion, decreased in size of EDH 2. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the negligence of the second respondent. The first respondent, being the insured owner of the said vehicle, was found vicariously liable and the third respondent was held liable to indemnify the insured owner. The said findings and the mulcting of liability are not at all disputed before us. Hence, the sole question to be considered in this appeal is as to whether the appellant is entitled to get enhanced compensation. 3. We heard the learned counsel for the appellant and also the learned counsel for the third respondent. 4. The main grievance of the appellant is regarding the notional **M.A.C.A.2783/2012** 3 fixation of monthly income by the Tribunal. In the claim petition, it was averred that the appellant was a heavy vehicle driver and he was earning a monthly income of Rs.6,000/-. He was aged 25 years at the time of the accident. To prove his averments regarding occupation and income, he got examined PW2 who was the managing partner of the firm in which he was then working. Taking into account the fact that he had not produced any records including pay roll and his version that he was not collecting any professional tax from the appellant for the purpose of remittance, the Tribunal declined to accept the monthly income of the appellant certified under Ext.A9 certificate. As noticed hereinbefore, the appellant claimed Rs.6,000/as his monthly income. Even if it is taken that the oral testimony of PW2 was not sufficient to prove Ext.A9, we are of the view that there is absolutely no reason for fixing the monthly income of the appellant only as Rs.3,000/-. The accident in question had occurred on 13.1.2008. Taking into account the fixation of the monthly income of a coolie who met with an accident in the year 2004 by the Hon'ble **M.A.C.A.2783/2012** 4 Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** and taking into account the year of accident and the age of the appellant at the time of the accident, we find no reason to disbelieve the claim of the appellant that he was earning Rs.6,000/- per month. At any rate, it is only reasonable to fix the monthly income notionally at Rs.6,000/- for calculation purpose in the aforesaid circumstances. To prove the extent of disability certified under Ext.A7 disability certificate, the petitioner got examined the doctor who issued the same as PW3. The Tribunal accepted the entire extent certified thereunder viz., 40%. Evidently, the Tribunal has fixed the monthly income of the appellant as Rs.3,000/-, the multiplier as '18' with reference to his age at the time of the accident and accepted the entire extent of disability certified under Ext.A7 to assess the compensation payable to the appellant towards permanent disability as Rs.2,59,200/-. At the same time, the Tribunal declined to award the entire amount as assessed taking note of the fact that the appellant had claimed only an amount **M.A.C.A.2783/2012** 5 of Rs.1,00,000/- under that head and consequently, awarded only a sum of Rs.1,00,000/- as compensation for permanent disability. This, according to us, is a deviation from the dictum laid down by the Apex Court in **Ningamma and Anr. v. United India Insurance Co. Ltd. (2009 ACJ 2020).** The said decision was rendered by the Apex Court following its earlier decision in **Nagappa v. Gurudayal Singh and Ors. [AIR 2003 SC 674]** . In **Nagappa** 's case, the Apex Court in paragraph 10 held thus:- "Thereafter, Section 168 empowers the Claims Tribunal to “make an award determining the amount of compensation which appears to it to be just”. Therefore, only requirement for determining the compensation is that it must be just. There is no other limitation or restriction on its power for awarding just compensation." 5. Assessment of compensation under different heads is done for the purpose of granting just compensation. Hence, when once it is found that the compensation to which the claimant is entitled, be it under any particular head or aggregate, is more than what is claimed, its denial after assessment would result in denial of just compensation. **M.A.C.A.2783/2012** 6 In the light of the said decisions referred (supra) and our conclusions, it can only be held that the Tribunal ought to have granted the entire amount assessed as compensation for permanent disability. There is no justification in awarding only Rs.1,00,000/- after assessing Rs.2,59,200/- as the compensation thereof. In that view of the matter, the appellant is entitled to get the balance amount assessed by the Tribunal under the said head. 6. The further question to be considered is whether the appellant is entitled to get re-assessed the compensation payable for permanent disability and also under any other head. We have already found that the monthly income fixed by the Tribunal for the purpose of calculating compensation for permanent disability is on the lower side and we have re-fixed the monthly income notionally at Rs.6,000/-. Admittedly, the Tribunal has rightly adopted the multiplier as '18' with reference to the age of the appellant at the time of the accident. The entire extent of disability certified under Ext.A7 disability certificate viz., 40% was accepted by the Tribunal. In such **M.A.C.A.2783/2012** 7 circumstances, a re-assessment is required only by substituting the refixed monthly income and on such re-assessment, the amount payable will be Rs.5,18,400/-. As noticed hereinbefore, the Tribunal has already granted an amount of Rs.1,00,000/- as compensation under the aforesaid head. Hence, the appellant is entitled to get a total amount of Rs.4,18,400/- additionally under the head permanent disability. The Tribunal took the period for loss of earning as two months. The learned counsel for the appellant submitted that the period fixed by the Tribunal in that regard is too short. We have already taken note of the injuries sustained by the appellant in the accident. Ext.A4 discharge summary would reveal that he had been an inpatient for a period of 44 days altogether. Taking into account the nature of the injuries and the nature of treatment underwent by him and also the period of decumbiture, we are inclined to take the period in that regard as four months. Based on the re-fixed monthly income and the re-fixed period, the amount payable under this head will be Rs.24,000/-. After deducting the amount already awarded by the **M.A.C.A.2783/2012** 8 Tribunal, the appellant is entitled to get Rs.18,000/- additionally. The evidence on record, discussed in detail in the impugned award, would reveal that the appellant had reviews after initial admission and discharge. Hence, we are inclined to grant Rs.1,500/- more towards transportation expenses. The nature of the injuries sustained by the appellant narrated in Ext.A3 wound certificate and Ext.A4 discharge summary would constrain us to hold that the appellant is entitled to get Rs.5,000/- more towards pain and suffering as evidently, he must have endured excruciating pain. It is granted. Nature of the injuries sustained in the accident would undoubtedly suggest that the dresses worn by the appellant must have been spoiled. No amount was awarded by the Tribunal towards damage to clothing. We are inclined to grant Rs.1,000/- therefor. Towards extra nourishment and bystander's expenses, the Tribunal has granted Rs.3,100/- each reckoning Rs.100/- for a period of 31 days. We have already found that going by Ext.A4 discharge summary, he had been an inpatient for 44 days. Taking into account the year of the accident and the **M.A.C.A.2783/2012** 9 economic situation then prevalent though we are not inclined to interfere with the rate fixed by the Tribunal for extra nourishment viz., Rs.100/- per day, we are of the view that the rate of bystander's expenses ought to have been Rs.200/- per day. In that view of the matter, the appellant is entitled to get an amount of Rs.1,300/additionally towards extra nourishment and Rs.5,700/- towards bystander's expenses. No amount was awarded by the Tribunal towards loss of amenities. A bare perusal of the impugned judgment itself would reveal that the Tribunal had accepted the certification to the extent of permanent disability of the appellant as 40%. The said aspect and the nature of the injuries as also the treatment would go to show that he must have been deprived of enjoyment of life for a long period. We are inclined to fix an amount of Rs.30,000/- thereunder as compensation in such circumstances. In the light of assessment/enhancement made by us and also consequent to the interference with the deduction made while granting compensation for permanent disability by the Tribunal after assessing Rs.2,59200/-, the **M.A.C.A.2783/2012** 10 appellant is entitled to get a total compensation of Rs.4,80,900/-. It is granted. The said additional compensation will carry 8% interest per annum from the date of the petition till realisation. The third respondent is directed to deposit the said amount along with interest thereon within a period of three months from the date of receipt of a copy of this judgment. Since the amount awarded by us would take the total compensation payable more than the amount to which the claim was limited, the balance court fee shall be realised by the Tribunal before releasing the amount. Appeal is disposed of. No order as to costs. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **Sd/-** ## **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.2783/2012** 11 **C.T. RAVIKUMAR, J.** **M.A.C.A.2783/2012** 12 **JUDGMENT September, 2010**