K. Krishnan v. Shabu, Biju and The National Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ## **`MACA NO. 234 OF 2013`** ## **`AGAINST THE AWARD DATED 23.04.2012 IN OP(MV)NO.1400/2005 OF MOTOR`** ## **`ACCIDENT CLAIMS TRIBUNAL, THRISSUR`** ## **`APPELLANT/PETITIONER:`** ``` K.KRISHNAN S/O.AYYAPPAN, RESIDING AT KALLUMKUNNATH HOUSE, KURANCHERY BYPASS, P.O.MINALUR, WADAKKANCHERY, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SHABU, S/O.VAREED, RESIDING AT PAROKKATTOKARAN HOUSE, P.O.KAINOOR, THRISSUR DISTRICT, PIN 680014.` ``` 2BIJU, S/O.VISWAMBARAN, RESIDING AT KUNNATHUVALAPPIL HOUSE, P.O.MANNAMANGALAM, THRISSUR DISTRICT, PIN 680014. 3THE NATIONAL INSURANCE COMPANY LIMITED BRANCH, THRISSUR 680001. ``` ``` BY ADV SRI.K.B.RAMANAND FOR R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 234 OF 2013 ``` 2 ## ZIYAD RAHMAN, A.A, J M.A.C.A No. 234 of 2013 th Dated this the 30 day of January, 2024 ## JUDGMENT The appellant was the petitioner in OP(MV)No.1400/2005 on the files of the Motor Accidents Claims Tribunal, Ernakulam. 2. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 08.05.2005. The accident occurred when he was knocked down by a lorry bearing registration No.KL-01/AC 4334 driven by the second respondent. The first respondent was the owner and it was insured with the third respondent. The appellant was getting a monthly income of Rs.5000/- and he was 41 years old at the time of the accident. Consequent to the accident, he sustained serious injuries and physical disablement. The claim petition was submitted in such circumstances. 3. The third respondent-Insurance Company, resisted the claim by filing a written statement wherein they admitted the coverage of the policy. However, they disputed the quantum of ``` MACA NO. 234 OF 2013 ``` 3 compensation. 4. The evidence in this case consists of Exts.A1 to A7 from the side of the appellant and Exts.B1 and B2 were marked from the side of the respondents. 5. After the trial, the Tribunal came to the conclusion that, the accident occurred due to the negligence on the part of the second respondent in driving the lorry and being the insurer of the said vehicle, the third respondent-Insurance Company was held liable to pay the compensation. The quantum of compensation was fixed at Rs.95,500/-, and the third respondent was directed to deposit the said amount along with interest @ 8% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted in such circumstances seeking enhancement of compensation. 6. Heard Adv.Sri.A.R.Nimod, the learned counsel appearing for the appellant and Adv.Sri.K.B.Ramanand, the learned counsel appearing for the third respondent-Insurance Company. 7. The only question that arises for consideration is whether the enhancement of compensation is warranted or not. ``` MACA NO. 234 OF 2013 ``` 4 From the materials placed on record, I find that, on several heads the amounts awarded by the Tribunal are grossly inadequate. The first head to be considered is for disability. For assessing the compensation under this head, the Tribunal accepted the monthly income as Rs.3000/- even though the claim in this regard was Rs.5000/-. Considering the fact that the accident occurred in the year 2005, the monthly income of Rs.5000/- as claimed in the petition cannot be treated as unreasonable. The fact that in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] the Hon’ble Supreme Court has pleased to take the monthly income of an ordinary worker as Rs.4500/- for the year 2004, also justifies the said contention. Accordingly, the monthly income is fixed as Rs.5000/-. 8. The next element to be considered is the percentage of disability. Even though the Ext.A5 disability certificate was produced, certifying the percentage of disability as 13%, the Tribunal scaled down the percentage of disability to 7%. The nature of the injuries is clearly extracted in Ext.A5 and as per which the petitioner suffered malunited fracture left femur 3rd ``` MACA NO. 234 OF 2013 ``` 5 with 15 varus deformity, partial ankylosis of left hip with gross limitation of external rotation and limitation of last 20-degree abduction on left hip with pain on squatting. He had wasting of quadriceps by 2 cm with partial ankylosis of left knee with limitation of fexion beyond 90 degree with difficulty in squatting. Malunited fracture distal ulna right with thickening of ulna and limitation of terminal 10-degree supination right forearm. It is also evident from the award that the appellant appeared before the Tribunal, and after examining him, the Tribunal was convinced that he had difficulty in walking and climbing steps. He cannot sit or walk for too much time. Despite the above, the percentage of disability certified in Ext.A5 was scaled down merely because of the reason that the doctor who issued the said certificate was not examined. In Manikandan G. v. K.Janardhanan Nair & Others 2021 5 KHC 305, this court already considered the said question and held that, in the absence of any discrepancies in the medical certificate, the percentage of disability cannot be scaled down, merely for non-examination of the doctor. In this case, considering the impact of the injuries sustained by the ``` MACA NO. 234 OF 2013 ``` 6 appellant, which are referred to above, 13% of the physical disability was a probable assessment, and therefore, the Ext.A5 disability certificate need not be discarded. Thus, while reassessing the compensation with the monthly income as Rs.5000/- and the percentage of disability as 13%, the amount would come to Rs.1,09,200 (5000 X 12 X 14 X 13/100). The amount already awarded by the Tribunal under this head is Rs.35,280/-; thus, the additional amount would come to Rs.73,920/-. 9. Consequent to the revision of monthly income, the appellant would be entitled to a total sum of Rs.10,000/- under the head of loss of earning as the amount awarded by the tribunal under this head is for a period 5 months, at the rate of Rs 3,000/-. 10. The amount awarded by the Tribunal towards pain and suffering was Rs.18,000/- which appears to be on the lower side. This is particularly because, the appellant had undergone inpatient treatment for 46 days, and this court has already discussed the nature of the injuries he sustained in the 8th paragraph above. The same would indicate the multiple injuries ``` MACA NO. 234 OF 2013 ``` 7 on the lower and upper body of the appellant. Therefore, I am of the view that, certainly, he is entitled to some additional compensation under the head of pain and suffering and in the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.12,000/- under this head. Similarly, the amount awarded towards loss of amenities was only Rs.13,000/- which also appears on the lower side,particularly because of the nature of the injuries sustained, the disability arising therefrom and the possible impact of such difficulties in his personal life and also his employment. Therefore, I deem it appropriate to grant a further sum of Rs.17,000/- under this head. Besides the above, no amount is seen awarded towards extra nourishment, even though the appellant had undergone treatment for a period of 46 days. Therefore, an amount of Rs.3000/- is awarded under the said head, and a further sum of Rs.1000/- is awarded towards damages to clothing, surveyors fee, etc. Accordingly, the total additional compensation is determined as Rs.1,16,920/- (Rupees one lakh sixteen thousand nine hundred and twenty only) (73920 + 10,000 + 12,000 + 17,000 + 3000 + 1000) ``` MACA NO. 234 OF 2013 ``` 8 11. In the light of the aforesaid observations and findings, this appeal is allowed, the award dated 23.04.2012 in OP(MV)No.1400/2005 passed by the Motor Accidents Claims Tribunal, Thrissur is hereby modified by granting an additional compensation of Rs.1,16,920/- (Rupees one lakh sixteen thousand nine hundred and twenty only). The third respondent is directed to deposit the said amount along with interest @ as ordered by the Tribunal and 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 136 days in filing the appeal was condoned by this court on the conditions that, the appellant shall not be entitled to interest for the said period, the third respondent shall be at liberty to exclude the said period, while computing the interest for the additional compensation. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV