K. Muraleedharan v. M. Abdul Nazar, Sasidharan, The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 30TH DAY OF OCTOBER 2017/8TH KARTHIKA, 1939 MACA.No. 1594 of 2011 ( ) -------------------------OPMV 2983/2004 of MACT,THRISSUR ## APPELLANT/PETITIONER: ------------------------------------ K.MURALEEDHARAN,S/O KASU,MURALI NIVAS, KARUVANPADM, P.O. ANCHOOMOORTHIMANGALAM,VIA. WADAKKANCHERY,PALAKKAD DIST. NOW RESIDING AT HIS WIFE'S, HOUSE,KAIPULLY HOUSE, MOOPENTHERUVU, MULAYAM ROAD, P.O, MULLAKKARA,, THRISSUR DST. BY ADV. SRI.P.V.CHANDRA MOHAN ## RESPONDENTS/RESPONDENTS: ------------------------------------------ 1. M.ABDUL NAZAR, - S/O MUHAMMED MOOSA,, SALEENA HOUSE, MADAPPALLUR, - PALAKKAD DISTRICT. 678 001. 2. SASIDHARAN, S/O PADMANABHAN NAIR,, PATHIYIL HOUSE,, CHITTILANCHERY,, PALAKKAD DISTRICT. 678 001. 3. THE ORIENTAL INSURANCE CO.LTD. REP. BY DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, THRISSUR.680 001. R3 BY ADV. SRI.M.JACOB MURICKAN R3 BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - M.A.C.A. No.1594 of 2011 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of October 2017 ## JUDGMENT ## **Sudheendrakumar J.,** The appellant sustained injuries in a road traffic accident which occurred on 6.5.2004 at 9.30 p.m. While the appellant was riding a scooter along the public road, an Ambassador car bearing Reg.No.KL-9 0J 7896, driven by the 2[nd] respondent in a rash and negligent manner hit against the scooter ridden by the appellant and as a consequence, the appellant sustained injuries. He was taken to the hospital immediately and treated there as M.A.C.A. No.1594 of 2011 : 2 : inpatient. The accident occurred due to the rash and negligent driving of the vehicle by the 2[nd] respondent. 2. In connection with the injuries sustained by the appellant, the Tribunal awarded a sum of Rs.86,965/- as compensation. 3. Heard the learned counsel for the appellant and the learned counsel for the third respondent. 4. The learned counsel for the third respondent has argued that the appeal filed by the third respondent was disposed of by the High Court as per order dated 28.1.2013 in M.A.C.A. No.1456 of 2011 and in the said circumstances, the present appeal seeking for enhancement of compensation cannot be maintainable, particularly in view of the fact that the court, while remanding the matter directed the Tribunal that the finding other than the fixing M.A.C.A. No.1594 of 2011 : 3 : of the liability on the Insurance Company should not be disturbed. We have anxiously considered the above submission of the learned counsel for the third respondent. It appears that as per judgment dated 28.1.2013 in M.A.C.A No.1456 of 2011, the appeal filed by the third respondent herein was remanded to the Tribunal for consideration as to whether the driver of the vehicle was having a valid driving licence and badge at the time of accident. In the said judgment, the court held that the other finding of the Tribunal should not be disturbed. It is pertinent to note that this appeal was filed in 2011. The appeal filed by the third respondent was disposed of by the court in the year 2013. The judgment is dated 28.1.2013 which would show that at the time, when the judgment was delivered in M.A.C.A.No.1456 of 2011, the present appeal M.A.C.A. No.1594 of 2011 : 4 : was pending. The learned counsel for the third respondent ought to have brought to the notice of this court with regard to the pendency of this appeal at the time of disposal of M.A.C.A.No.1456 of 2011. It appears from the office note that the third respondent herein filed vakalat through Adv.Sri.V.P.K. Panicker in this appeal before 21.11.2011. It is also to be noted that before disposing of M.A.C.A.No. 1456 of 2011, no notice was issued to the first respondent therein, who is the appellant herein. In view of the above reasons, it cannot be said that this appeal is not maintainable since the appeal filed by the third respondent was alrady disposed of by the court. For the said reason, the argument in this regard advanced by the learned counsel for the third respondent cannot be sustained. 5. The Tribunal found that the accident occurred due M.A.C.A. No.1594 of 2011 : 5 : to the rash and negligent driving of the vehicle by the 2[nd] respondent. The third respondent is the insurer of the vehicle involved in the accident. Therefore, the third respondent was directed by the Tribunal as per award dated 25.7.2013 in O.P.(MV) No.2983 of 2004 to deposit the compensation. 6. The only challenge in this appeal is with regard to the quantum of compensation awarded by the Tribunal. The appellant was a Government employee getting Rs.8,050/per month as salary. He was a line man in BSNL. Ext.A9 is the pay slip. The appellant sustained 12% disability as per Ext.A7 certificate of disability issued by a Doctor. However, the Doctor who issued the disability certificate was not examined before the court to prove the disability stated in Ext.A7. In the said circumstances, considering the M.A.C.A. No.1594 of 2011 : 6 : nature of injuries sustained by the appellant, the Tribunal fixed the disability of the appellant at 4%. We also accept the disability fixed by the Tribunal. The appellant was aged 39 years during the relevant period. Therefore, 15 has to be taken as the multiplier for the purpose of calculating the disability compensation as held by the Apex Court in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]. In view of the decision of this court in M.A.C.A.No.2170 of 2005 dated 20.10.2017, the appellant is entitled to an amount of Rs.57,960/(8050x12x15x4/100) as compensation for permanent disability. Subtracting the amount of Rs.19,200/- awarded by the Tribunal, the appellant is entitled to an amount of Rs.38,760/- as additional compensation towards permanent disability. The appellant had altogether availed M.A.C.A. No.1594 of 2011 : 7 : leave for 147 days as is evident from Ext.A10 leave certificate. It is true that the appellant did not sustain any loss of earning as he availed the leave, which he was entitled. However, he could have availed the said leave for some other purpose or he could have surrendered the said leave. In view of the above reason, the appellant is entitled to loss of earnings for 147 days. Accordingly, the appellant is entitled to an amount of Rs.39,445/- as compensation under the said count. Subtracting the amount of Rs.5,098/awarded by the Tribunal, the appellant is entitled to an amount of Rs.34,347/- as additional compensation towards loss of earnings. No amount was awarded by the Tribunal as compensation towards loss of amenities. Considering the nature of injuries sustained by the appellant and also the treatment undergone by the appellant as is evident from M.A.C.A. No.1594 of 2011 : 8 : paragraph 9 of the award, we are granting an amount of Rs.10,000/- as compensation towards loss of amenities. The compensation awarded by the Tribunal under other heads does not warrant any interference by this court. The learned counsel for the appellant has argued that the appellant wanted to have future treatment as is evident from Ext.A13 certificate. However, the appellant has not produced any certificate even after a period of six years from the date of filing of the claim petition showing that any treatment was taken by the appellant after filing the claim petition in connection with the injuries sustained in the accident. Therefore, we are not inclined to grant any amount on the said count. Thus the appellant is granted a total amount of Rs.83,107/-, which is rounded off to Rs.83,110/- (Rupees eighty three thousand one M.A.C.A. No.1594 of 2011 : 9 : hundred and ten only) as additional compensation. The above amount carries interest at the rate of 8% per annum from the date of petition till the date of realisation. The second respondent, being the insurer of the vehicle involved in the accident, is directed to deposit the amount of compensation with interest before the Tribunal, within one month from the date of receipt of a copy of this judgment. In the result, this appeal stands disposed of as above. **Sd/- C.T.RAVIKUMAR, JUDGE** **Sd/- B.SUDHEENDRA KUMAR, JUDGE** _dl/30.10.2017_ _// True Copy //_ _PA to Judge_