Joy M.P. v. N.K. Basheer and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939 MACA.No. 564 of 2010 ( ) ------------------------AGAINST THE AWARD IN OPMV 1630/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 04-12-2009 ## APPELLANT/PETITIONER:: ------------------------------------ JOY.M.P., S/O.LATE PETER, MUKADAKAL HOUSE, IRUMBANAM P.O. BY ADVS.SRI.T.K.KOSHY SRI.P.GIREESHKUMAR SMT.V.V.RISANI RESPONDENT(S)/RESPNDENTS 1 TO 4:: --------------------------------------------------------- ***** 1. N.K.BASHEER, NAJEEB KHAR HOUSE, THIRUR, THALASSERY, KANNUR DISTRICT. [ **REMOVED** ] - [RESPONDENT NO.1 IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE - APPELLANT AS PER ORDER DATED 21/02/2017 IN IA.695/17 IN MACA.564/2010.] 2. GOPAKUMAR, S/O.RAVEENDRAN NAIR, KIZHIPPILLIL HOUSE, IRUMBANAM P.O. 3. UNITED INDIA INSURANCE CO.LTD., MUVATTUPUZHA. 4. C.K.BABURAJ, S/O.NANU, DEEPAK SALES & SERVICES, KSHB COMPLEX, IRUMBANAM, THRIPUNITHURA. R3 BY ADV. SMT.S.JAYASREE R4 BY ADV. SRI.RASHEED C.NOORANAD R4 BY ADV. SRI.SUNI M.D. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.No.564 OF 2010** **-------------------------------------------------DATED THIS THE 13[th] DAY OF JUNE, 2017** ## **JUDGMENT** ## **C.T. RAVIKUMAR, J.** The injured claimant is the appellant. This appeal is preferred against the judgment and award dated 4.12.2009 in O.P.(MV)No.1630/2003 passed by the Motor Accident Claims Tribunal, Muvattupuzha. As against the claim of 2,00,000/-,₹ the Tribunal granted a total compensation of 1,08,700/- with₹ interest @9% per annum from the date of petition till realisation. It is feeling aggrieved by and dissatisfied with the same, this appeal has been preferred. 2. We heard learned counsel on both sides. 3. There is no dispute regarding the accident, cause of accident as the negligence from the part of the 2[nd] respondent, who was the driver of the offending vehicle, viz; an autorickshaw bearing registration No.KL-13A-1320 as also the liability of the 3[rd] respondent to indemnify the insured owner of the said vehicle, viz; the 4[th] respondent. In such circumstances, M.A.C.A.No.564/2010 -2- the sole question to be considered is whether the appellant is entitled to get enhanced compensation. On 8.6.2003, while the appellant was travelling in the aforesaid autorickshaw, it dashed against the rear side of a tanker lorry. The appellant sustained severe injuries. He had been an inpatient for a period of 8 days. The injuries sustained by him in the accident resulted in permanent disability. It is in the said circumstance that he preferred the claim petition limiting his claim to ₹2,00,000/-. 4. Before the Tribunal, one of the members of the Medical Board who assessed the permanent disability of the appellant was examined as PW1. No oral evidence was adduced by the respondents. So also, they did not adduce any documentary evidence. On the side of the appellant, Exts.A1 to A6 were got marked. After evaluating and appreciating the evidence on record and the rival contentions, the Tribunal awarded the compensation as aforesaid. Going by the schedule given in the impugned award, the Tribunal granted compensation under different heads as shown hereunder:- M.A.C.A.No.564/2010 -3- |Sl.<br>No.|Head|Claim|Award| |---|---|---|---| |1|Loss of earnings|50000|10000| |2|Transportation expenses|5000|2500| |3|Medical expenses|15000|1500| |4|Medical expenses|50000|33500| |5|Pain and suffering|10000|20000| |6|Loss of amenities & enjoyment in life|10000|10000| |7|Permanent physical disability(Loss of<br>earning capacity)|10000|31200| |8|Future medical expenses|50000|-| ||Total|200000|108700| 5. The learned counsel for the appellant submitted that the Tribunal went wrong in holding Ext.A5 disability certificate as one issued by one Dr.Manoj. It is submitted by the learned counsel that in fact it is a disability certificate issued by a duly constituted Medical Board and Dr.Manoj is only one among the members of the said Board. That apart, one another member of the said Board, namely, Dr.Muhammadali was examined as PW1, it is submitted. It is evident from the impugned judgment that as per Ext.A5, the disability of the appellant is 20%. The Tribunal virtually declined to take the entire percentage of disability certified under Ext.A5 for the aforesaid M.A.C.A.No.564/2010 -4- reason. The learned counsel for the appellant handed over a copy of Ext.A5. A perusal of the same would reveal that it was issued by a duly constituted Medical Board consisting of 5 Doctors and that Dr.Muhammadali and Dr.Manoj were members of the said Board. The reasons for assessing the permanent disability of the appellant as 20% by the Board in terms of Mc Bride Scale is evident from the same. We have already taken note of the fact that the Tribunal mistook Ext.A5 as a disability certificate issued by an individual Doctor. Evidently, on the ground that the said Doctor who issued the same was not examined, the Tribunal declined to accept the certification made thereunder. Indisputably, Ext.A5 is a medical certificate issued by a duly constituted Board. The Board certified the permanent disability of the appellant as 20%. One among the members of the said Board was also examined before the Tribunal as PW1. In the absence of any assignable reason, the assessment of disability by a duly constituted Medical Board cannot be interfered with. In such circumstances, we do not find any reason for not acting upon Ext.A5. In short, the entire M.A.C.A.No.564/2010 -5- percentage of disability certified in Ext.A5, viz, 20% has to be taken into account for the purpose of calculating compensation payable to the appellant for the disability incurred by him. For the aforesaid purpose, the Tribunal fixed the monthly income of the appellant notionally as 2,000/- per month. In the claim₹ petition, the appellant had stated that he was then conducting a tea shop at Irumpanam and was earning 5,000/- per month.₹ At the same time, it is obvious that the appellant had not adduced any evidence to establish such contentions regarding occupation and income. In such circumstances, the Tribunal cannot be found fault with in fixing the monthly income notionally for calculating compensation payable to the appellant for his disability. At the same time, the question is whether fixation of the monthly income notionally as 2,000/- invites₹ interference. For considering the said issue, certain aspects have to be looked into. The accident occurred on 8.6.2003. The appellant was then aged 49 years. It is nobody's case that he was a disabled person even prior to the accident. In such circumstances, it has to be taken that the appellant was an able M.A.C.A.No.564/2010 -6- bodied person aged 49 years at the time of accident. Taking note of the decision of the Hon'ble Apex Court in **Ramachandrappa** v. **Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** for guidance in the matter of fixation of monthly income and taking into account the aforesaid factors, we are inclined to fix monthly income of the appellant for calculation purpose as 3,500/-. The learned₹ counsel on both sides submit that the Tribunal has correctly applied the multiplier as '13' with reference to the age of the injured appellant. In such circumstances, re-assessment of the compensation payable for disability is required with the substitution of the multiplicand and the degree of percentage of disability. On such re-assessment, the appellant would be entitled to get a total compensation of ₹1,09,200/(3500x12x13x20/100) towards disability. The Tribunal has already granted an amount of 31,200/- under that head. After₹ deducting the said amount, the appellant would be entitled to get an additional compensation of **₹78,000/-** under that head. It is granted. M.A.C.A.No.564/2010 -7- 6. The Tribunal fixed the period of loss of earning as 5 months and an amount of 10,000/- was granted taking the₹ monthly income as 2,000/-. The learned counsel for the₹ appellant submitted that the period taken by the Tribunal for the aforesaid purpose is too short. For appreciating the said contention, it is necessary to look into the nature of the injuries sustained by the appellant in the accident. Ext.A3 is the wound certificate issued by Hi-Tech Multispeciality Hospital, Tripunithura. Going by the same, the appellant sustained the following injuries. “Pain and swelling left wrist, abrasion over left chest, nasal bleeding, bicondylar fracture left tibia and comminuted fracture distal radius (Lt) with ulnar styloid.” 7. Ext.A6 is the discharge summary. It would reveal that the appellant had a compound fracture VI tibial condyle fracture left collis, fracture left with ulna styloid. There was ligament fracture as well. It is evident from the judgment itself that the X-ray taken reveals the factum of malunion of fractures. M.A.C.A.No.564/2010 -8- 8. As noticed hereinbefore, Ext.A5 would reveal that the injuries sustained in the accident resulted in 20% permanent disability. Taking into account all the aforesaid aspects, we are of the view that it is only proper to take 6 months as the loss of earning. In view of the monthly income fixed by us for the aforesaid period, the appellant will be entitled to get an amount of 21,000/-₹ . After deducting the amount already granted by the Tribunal,viz; 10,000/-, the₹ appellant would be entitled to get an amount of **₹11,000/-** additionally towards loss of earning. Taking into account the nature of the injuries sustained by the appellant as described hereinbefore, we are inclined to enhance the compensation granted by the Tribunal under the heads 'pain and suffering” and “loss of amenities”. Consequently, an amount of **₹10,000/-** is granted additionally towards pain and suffering and an amount of **₹10,000/-** is granted additionally towards loss of amenities. The Tribunal has granted only an amount of ₹2,500/- towards transportation expenses. The nature of injuries and the treatment undergone by the appellant would M.A.C.A.No.564/2010 -9- undoubtedly suggest that he had reviews subsequent to the initial admission into and discharge from the hospital. In such circumstances, we are inclined to grant **₹2,500/-** more towards transportation expenses. No amount was granted by the Tribunal towards extra nourishment. So also no amount was granted towards damage to clothing. The appellant had been an inpatient for 8 days. We are inclined to grant 100/-₹ per day towards extra nourishment. The appellant is entitled to get an amount of **₹800/-** towards extra nourishment. Towards damage to clothing, we are inclined to grant an amount of **₹500/-.** It is granted. 9. In the light of the assessment and enhancement, the appellant would be entitled to get an additional compensation of **₹1,12,800/-** (Rupees One Lakh Twelve Thousand and Eight Hundred only). The said additional compensation will carry interest @8% per annum from the date of petition till realisation. The 3[rd] respondent is directed to deposit the said amount of additional compensation together with interest at the aforesaid rate within a period of two months from the date of M.A.C.A.No.564/2010 -10- receipt of a copy of this judgment. There will be no order as to costs. The appeal is disposed of as above. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn True copy P.S. to Judge