Joy Abraham Thottumkal v. The Branch Manager, National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 MACA NO. 2043 OF 2013** **AGAINST THE AWARD DATED 20.05.2013 IN OP MV NO 1035/2005 ON THE FILES OF THE ADDITIONAL MACT(ADDL DISTRICT JUDGE),** ## **PATHANAMTHITTA** ## **APPELLANT/PETITIONER:** **JOY ABRAHAM THOTTUMKAL HOUSE, VECHOOCHIRA P.O., CHETHACKAL VILLAGE, RANNY TALUK.** **BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI SRI.SABU I.KOSHY** ## **RESPONDENT/RESPONDENTS 1 TO 3:** - **1 VARGHESE JACOB AREEPARAMPIL HOUE, PONNAMPARA, KAKKUDUMON P.O., RANNY TALUK.** - **2 ANANDAN S/O.KUNJUKUNJU, KARANTHARA, SEETHATHODU P.O.** - **3 THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, PARAKKADAVIL SHOPPING COMPLEX, PALACE ROAD, CHANGANACHERRY.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 2043 of 2013 2 ## **JUDGMENT** The appellant was the claimant in O.P.(M.V) No. 1035/2005 on the files of Additional Motor Accidents Claims Tribunal, Pathanamthitta. The claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 22.06.2005, when the autorickshaw in which he was travelling, capsized due to the rash and negligent driving of the first respondent. The said autorickshaw was owned by the second respondent and it was insured with the third respondent. The appellant was aged 21 years at the time of the accident and he claimed to be a businessman with a monthly income of Rs.6,500/-. He sustained injuries in the accident and it resulted in physical disability as well. The claim petition was submitted in such circumstances. 2. The third respondent/Insurer filed a written statement contending that there was no negligence on the part of the first respondent in driving the autorickshaw. However, they admitted the coverage of policy for the said vehicle. The quantum of compensation was also disputed by them. M.A.C.A No. 2043 of 2013 **==> picture [7 x 9] intentionally omitted <==** 3. The evidence in this case consists of Exts. A1 to A9 from the side of the appellant and no evidence was adduced by the respondent. After the trial, the Tribunal found that the accident occurred due to the negligence of the first respondent and the second and third respondents, were held jointly and separately liable along with the first respondent. The quantum of compensation was fixed as Rs.25,300/- and the said amount was directed to be deposited by the third respondent, the insurer, with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 4. Heard, Sri.T.K Koshy, the learned counsel appearing for the appellant and Sri .P Jacob Mathew, the learned counsel appearing for the third respondent. 5. The only question to be considered is with regard to the quantum of compensation. The main contention raised by the learned counsel for the appellant is that, even though Ext. A7 disability certificate issued by the medical board was produced, wherein, the percentage of disability was certified as 10%, the M.A.C.A No. 2043 of 2013 4 Tribunal did not accept the same and no amount was awarded towards physical disability. 6. The learned counsel appearing for the third respondent on the other hand contends that, the injuries suffered by the appellant were not very serious and did not result in any physical disability and it was in that circumstances the Tribunal rightly rejected the same claim. 7. I have carefully gone through the records. It is evident from the medical records that, the injuries sustained by the appellant were multiple fractures on the right wrist region, contusion and abrasion on the right shoulder, right knee, left wrist and left forearm. In Ext A7, disability certificate the disability was assessed mainly on the reasons that there were restricted movements of right wrist and he is unable to carry weight, grip of right hand appears weak etc. However, from the said certificate it is not very much evident as to whether the percentage of disability certified therein is the whole body disability or with reference to that particular limb. From the nature of injuries, the percentage of disability of 10% appears to be on a higher side. This is particularly because, there is no specific evidence available M.A.C.A No. 2043 of 2013 5 as to the exact nature of avocation of the appellant. Even though he claimed to be a businessman there is nothing on record to show the nature of business he was engaged in. Therefore, when all the aforesaid aspects are taken into consideration, I am of the view that 10% disability as certified therein cannot be accepted at all. At the same time, the said certificate cannot be discarded completely in view of the fact that, the same was issued by a panel of Doctors having expertise in this regard. The said certificate would indicate that he sustained some physical disability and in such circumstances, I deem it appropriate to fix the physical disability of the appellant for the assessment of compensation as 5%. 8. The monthly income, taken by the Tribunal for assessment of compensation was Rs.3,500/- whereas the claim in this regard was Rs.6,500/-. It is true that, the appellant did not adduce any evidence to show the nature of avocation he was engaged in and the income which he used to get from the same. However, whatever be the employment, the monthly income of Rs.3,500/- appears to be on the lower side considering the fact that the accident occurred in the year 2005. In M.A.C.A No. 2043 of 2013 6 **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** the Honourable Supreme Court was pleased to take the monthly income of the claimant therein Rs.4,500/- for the year 2004 even in the absence of any evidence. Therefore, I find that Rs.5,000/can be fixed in this case as a reasonable amount since the accident occurred in the year 2005 and it is ordered accordingly. Thus when the compensation for disability is determined with the above criteria, the amount would come to Rs.54,000/(5,000x12x18x5/100). 9. Consequent to the revision of monthly income, the appellant would be entitled to some additional amount towards loss of earnings. The Tribunal awarded compensation under this head for a period of three months at the rate of Rs.3,500/- per month. In the light of revision of monthly income a further sum of Rs.4,500/- is awarded. 10. No amount was awarded towards extra nourishment whereas, the appellant had undergone inpatient treatment for four days. Therefore, a sum of Rs.500/- is awarded under the said head. M.A.C.A No. 2043 of 2013 7 11. Towards pain and suffering the amount awarded by the Tribunal was Rs.8,000/-. Considering the fact that the appellant sustained multiple fractures on the wrist and had undergone treatment for the same, a further sum of Rs.5000/- is awarded under the said head. 12. The amount awarded towards loss of amenities by the Tribunal was Rs.3,000/-, which appears to be too low. It is a fact that the appellant sustained serious injuries on the wrist and it resulted in physical disability as well. The said disability was sustained by him at the young age of 21 years, and he has to live with that disability for the remainder of his life. Therefore, I deem it appropriate to grant a further sum of Rs.7,000/- under the said head. Thus the total additional compensation is determined as Rs. 71,000/- (54,000 + 4,500 + 500+5,000+7,000). In the result, this appeal is allowed. The award dated 20.05.2013 passed by the Additional Motor Accident Claims Tribunal, Pathanamthitta in OP(MV) No.1035/2005 is hereby modified by granting an additional compensation of Rs.71,000/(Rupees seventy-one thousand only) and the said amount shall be deposited by the third respondent, with interest at the rate as M.A.C.A No. 2043 of 2013 8 ordered by the Tribunal and with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, as the delay of 24 days in filing the appeal was condoned by this court, subject to the condition that the appellant shall not be entitled for interest for the said period, the third respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that, the claimant shall furnish the details of PAN card, Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk