K. Lakshmanan v. Royal Sundaram Alliance Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938 MACA.No. 1399 of 2010 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.1322/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY DATED 27-03-2010 APPELLANT/PETITIONER: --------------------------- K.LAKSHMANAN, AGED 60 YEARS, S/O.NAMBI NAMBIAR, KODAKKATTERI HOUSE, KOROME, P.O.CHALAKODE, PAYYANNUR (VIA), KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT/RESPONDENT NO.3: ------------------------------------- ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD. 46 WHILES ROAD, CHENNAI. BY ADV. SRI.P.JACOB MATHEW BY ADV. SRI.MATHEWS JACOB (SR.) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.1399 of 2010 -------------------------------Dated 19[th] July, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is preferred against the award dated 27.3.2010 in O.P.(M.V)No.1322 of 2003 passed by the Motor Accidents Claims Tribunal, Thalassery. The petitioner therein is the appellant herein. He filed the claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident occurred on 28.4.2003. On that day, he was waiting for Bus near Perumba K.S.R.T.C. Bus Stand. At that time, the offending vehicle which is a Jeep bearing Reg.No.KL 11/P 9081 came from the Vellur side and knocked him down. He sustained injuries and consequently he was taken to Medical College Hospital, Pariyaram. He remained there as an inpatient for a period of 29 days. The injuries sustained by him in the accident resulted in permanent disability. It is in the said circumstances that the aforementioned claim petition has been filed seeking a compensation of 2,00,000/-. On the side of the₹ appellant Exts.A1 to A8 were marked and Ext.X1 which is a disability certificate issued from Medical College Hospital, Pariyaram was marked M.A.C.A.No.1399/2010 2 as a third party exhibit. Both sides did not adduce any oral evidence and in fact, no documentary evidence was also adduced by the respondents. The Tribunal granted a compensation of 1,82,900/- with₹ interest at the rate of 7.5% per annum from the date of petition till realisation along with a cost of 1,000/-. It is feeling aggrieved by and₹ dissatisfied with the quantum of compensation granted by the Tribunal that this appeal has been preferred. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the respondent. 3. It is admitted before us by both parties that the sole question to be considered in this appeal is regarding the entitlement of the appellant to get enhanced compensation as on all other aspects there is no dispute. The learned counsel for the appellant contended that the accident occurred on 28.4.2003 and on the date of the accident the appellant was aged 55 years. Ext.A8 would reveal that the appellant was a registered head load worker and in such circumstances, according to the learned counsel, the Tribunal went wrong in fixing the monthly income of the appellant notionally at 2,500/- for calculation₹ purpose disregarding the specific pleadings in the claim petition. It is further contended that the Tribunal ought to have accepted the entire M.A.C.A.No.1399/2010 3 percentage of disability certified under Ext.X1. Though 75% disability was certified under Ext.X1 the Tribunal took only 50% as the extent of his disability for the purpose of calculating compensation for permanent disability. The learned counsel further contended that though no specific claim was made by the appellant towards `future treatment' and also for 'loss of amenities and conveniences' the Tribunal ought to have granted compensation taking into account the situation obtained from the evidence on record. Per contra the learned counsel appearing for the respondent submitted that the Tribunal cannot be found fault with for fixing the monthly income on notional basis since the appellant had failed to establish his pleadings regarding occupation and income by adducing evidence. It is further contended that a perusal of the schedule of compensation given in the judgment would reveal that the Tribunal has virtually granted adequate compensation under all heads and in such circumstances, according to the learned counsel, no interference is called for. 4. We will firstly consider the grievance of the appellant regarding the non-reckoning of the entire percentage of disability certified under Ext.X1. True that, as per Ext.X1, the Medical Board assessed the extent of permanent disability of the appellant as 75%. Going by that, 50% was assessed as intellectual disability and 25% was M.A.C.A.No.1399/2010 4 assessed taking note of epilepsy. We have carefully gone through Ext.X1. A perusal of the same would reveal that the Board had not specifically given any reason for assessing the permanent disability as 75%. The manner of assessment made thereunder would in fact, justify the Tribunal the action in not taking the entire percentage of disability assessed under Ext.X1. In this context, it is also to be noted that the Tribunal observed that whole body disability was not specified under Ext.X1 the appellant also did not appear before the Tribunal so as to enable the Tribunal to see his actual physical condition. Taking into account all such aspects we are not inclined to accept the contention of the appellant and to interfere with the assessment of permanent disability by the Tribunal. 5. The next grievance of the appellant is regarding the fixation of monthly income. True that, even after taking up specific averments regarding the occupation and income the appellant had not adduced any evidence to establish such averments. It is to be noted that he has produced Ext.A8 which is the identity card revealing his status as head load worker issued by the Registering Authority. Since the authority issued the same is empowered to issue such identity cards in respect of head load workers it will give assurance to the fact that the appellant was a registered head load worker at the time of the M.A.C.A.No.1399/2010 5 accident. But, still, it is to be noted that it would not be taken as a proof of his income. In short, there is no evidence as relates the income of the appellant during the relevant period. In such circumstances, the Tribunal cannot be found fault with in fixing the monthly income of the appellant notionally for calculation purpose. Then the question is whether fixation of monthly income notionally at ₹ 2,500/- invites interference ? For that purpose, it is to be noted that the accident occurred on 28.4.2003 and on the date of the accident the appellant was aged 55 years. For guidance, in the matter of fixation of his monthly income for calculation purpose we are inclined to refer the decision of the Hon'ble Apex Court in _**Ramachandrappa** v._ _**Manager, Royal Sundaram Alliance Insurance Company Limited ((2011)**_ _**13 SCC 236).**_ True that, the accident involved in that case occurred in the year 2004, that is, subsequent to the accident in question. But, in that case, the Hon'ble Apex Court fixed the monthly income of a coolie who suffered an accident, at 4,500/- for calculation purpose. In such₹ circumstances, taking into account the factors mentioned hereinbefore, we are inclined to take 3,500/- as the monthly income of the₹ appellant. The learned counsel for the appellant contended that the Tribunal went wrong in fixing the multiplier in this case. The Tribunal took the multiplier as `8'. In Ext.A8 the date of birth of the appellant is shown as 10.2.1948. It is thus obvious that on the date of the accident M.A.C.A.No.1399/2010 6 the appellant had crossed the age of 55 years. In such circumstances, the multiplier applicable is `9' and not `8' in view of the schedule in the decision in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC)).**_ In the light of the aforesaid discussion the amount payable for disability has to be re-assessed. After substituting the relevant factors as mentioned hereinbefore, if it is re-assessed, the appellant would be entitle to get an amount of 69,000/- over and₹ above the amount awarded by the Tribunal under that head. In the light of the fixation of monthly income as 3,500/- certainly, the₹ appellant is entitled to get enhancement of compensation granted under the head `loss of earning'. The Tribunal took two months as the period of loss of earning. In the accident the appellant sustained fracture on frontal bones right pelvis, clavicle right and maxilla region. As per Ext.A3 discharge card there was head injury with multiple cranial fractures. Thus, it is obvious that the appellant had sustained severe head injuries, as well. Taking note of the said aspects we are of the view that the period of loss of earning is to be taken as four months. In such circumstances, the appellant would be entitled to get an amount of ₹ 9,000/- additionally under that head. As noticed hereinbefore, he had been an inpatient for a period of 29 days. The Tribunal granted an amount of 2,900/- towards bystander's expense obviously, at the rate₹ of 100/- per day. Taking note of the year of the accident and the price₹ M.A.C.A.No.1399/2010 7 index prevailed at that point of time we are of the view that the Tribunal ought to have fixed 150/- per day. In that view of the₹ matter, the appellant is entitle to get an additional amount of 1,450/-₹ under that head. Towards transportation expenses the Tribunal granted an amount of 1,000/-. The evidence on record would undoubtedly₹ suggest that after the initial hospitalization and discharge he must have at least one more visit to the hospital. In such circumstances, we are of the view that he is entitled to get 1,000/- more under that head.₹ Taking into account the nature of the injuries and the permanent disability incurred by him there can be little doubt with respect to the fact that the appellant would not be in a position to live and enjoy the pleasures of life as before. The Tribunal had not granted any amount towards 'loss of amenities and conveniences' obviously, taking note of the fact that the appellant has not claimed any amount thereunder. But, that shall not be a ground for denying compensation under any head to which an injured is actually entitled to. Taking note of the aforesaid aspects we are of the view that the appellant is entitled to get an amount of 25,000/- under that head especially, because of the finding₹ of the Tribunal that he had developed epilepsy as a result of the accident. Towards future treatment, taking into account all such circumstances we are not inclined to deny him due compensation thereunder. Thus, we ween that the reasonable compensation therefor, M.A.C.A.No.1399/2010 8 is 10,000/-. Towards pain and suffering an amount of 25,000/-₹ ₹ was claimed by the appellant and the Tribunal granted an amount of ₹ 18,000/-. The nature of the injuries expatiated above constrained us to form an opinion that the amount claimed ought not to have been declined. In that view of the matter we are inclined to grant 7,000/-₹ more to the appellant towards pain and suffering. 6. In the light of the discussion as above, over and above the amount granted by the Tribunal under the impugned award, the appellant would be entitled to get an amount of 1,22,450/-. It is₹ awarded. The said enhanced amount except the amount granted towards future treatment will carry interest at the rate of 8% per annum from the date of petition till realisation. The respondent is directed to deposit the said amount within a period of two months from the date of receipt of copy of this judgment. The learned counsel for the respondent raised a contention that based on the enhanced amount total amount payable to the appellant would become more than what was actually claimed by the appellant. True that, the appellant confined his prayer only to 2,00,00/-. The Tribunal as per the impugned award₹ has already granted an amount of 1,82,900/-. As per this judgment,₹ we have granted an additional compensation of 1,22,450/-. Thus, it₹ is obvious that sum total of the compensation granted as per the M.A.C.A.No.1399/2010 9 impugned award as also as per this judgment would take the quantum of compensation in excess of the claim. In the light of the decision in **Rajesh v. Rajbir Singh (2013(3) KLT 89(SC))** this Court is certainly empowered to grant compensation disregarding the claims made in a claim petition and also in excess of the claim for granting `just compensation'. But, at the same time, the appellant had only paid court fee for 2,00,000/-. In such circumstances, the Tribunal shall₹ realise the appropriate court fee payable for the balance amount, in accordance with law and the balance amount alone shall be released. The appeal is disposed of as above. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS