Kannyath Moosa v. P. Krishnamurthy, S. Ramesh and The New India Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938 MACA.No. 180 of 2009 ( ) ------------------------AGAINST THE AWARD IN OPMV 1579/2002 of M.A.C.T., MANJERI DATED 15-01-2007 APPELLANT(S)/PETITIONER:: ------------------------ ## KANNYATH MOOSA AGED 40, S/O.AHAMMEDKUTTY, KANNYATH HOUSE, CHEROOR P.O., VENGARA VIA., MALAPPURAM DISTRICT. ## BY ADV. SRI.E.NARAYANAN RESPONDENT(S)/RESPONDENTS:: --------------------------- ## 1. P.KRISHNAMURTHY S/O.PERIYASWAMI, 31A, SUBRAMANYAPURAM, NAMAKKAL, TAMILNADU STATE, (DRIVER). 2. S.RAMESH, S/O.SREERANGAN, NO.107, - IVTH CROSS, KALASIPALAYAM, NEW EXTENSION, BANGALORE, (OWNER). 3. THE NEW INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, MALIYEKKAL BUILDING, MALAPPURAM (INSURER). ## R3 BY ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR &** ## **K. P. JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.180 OF 2009 ==========================** Dated this the 14[th] day of July, 2016 ## **JUDGMENT** _Ravikumar, J._ The appellant, while travelling in an autorickshaw bearing Reg.No.TOC 2863 from Coimbatore Railway Station to Avanazhi road, met with a motor vehicle accident on 31.8.2001 at about 12.15 hours and he sustained the following injuries:- “Pelvic fracture, pubic diastasis, SI joint (sic.sacro iliac joint) dysruption left, cervical cord compression C5 level.” 2.On hospitalisation, he remained as an inpatient for a period of seven days. It is in the said circumstances that he filed O.P.(MV). No.1579 of 2002 before the Motor Accidents Claims Tribunal, Manjeri under section 166 of the Motor Vehicles Act seeking **M.A.C.A.180/2009** 2 compensation for the injuries sustained in the accident. In the same accident, three other persons also sustained injuries and they too, filed claim petitions. All the said claim petitions were jointly enquired into and a common award was passed. The FIR registered in connection with the accident in question and the copy of the charge sheet laid in the said crime were respectively marked as Exts.A1 and A2 in all the claim petitions. In addition to that, in the above claim petition, on the side of the appellant, Exts.A3 to A6 series were marked. Ext.X1 is the copy of the medical board report in respect of the disability of the appellant. The Tribunal considered the evidence on record as also the rival contentions and passed the impugned award for a total compensation of `99,713/- with interest @ 6% per annum from the date of the petition till realisation along with cost of of `1,000/-. It is seeking enhancement of the quantum of compensation awarded that this appeal has been preferred. 3.We have heard the learned counsel for the appellant and the **M.A.C.A.180/2009** 3 learned counsel for the third respondent. None of the respondents filed any appeals against the said award. In such circumstances, it is obvious that the accident, the insurance coverage of the offending vehicle at the time of the accident and the cause of the accident are not at all in dispute. Therefore, we will consider the question whether or not the appellant is entitled to get enhancement of compensation under any of the heads. 4.Towards transportation to hospital, the Tribunal granted an amount of `500/-. At the same time, a perusal of the impugned award would reveal that the Tribunal had taken note of the fact that the appellant had 10 reviews and accordingly, additionally granted an amount of `1,000/-. In view of the facts thus obtained, we are of the view that the amount granted towards transportation expenses is too inadequate. In such circumstances, we are inclined to grant an additional amount of `5,000/- under that head. It is granted. **M.A.C.A.180/2009** 4 5.The learned counsel for the appellant contended that the Tribunal erred in fixing the monthly income of the appellant as `1,500/-. In the claim petition, it is stated that the appellant was aged 40 years and he was an agriculturist earning `5,000/- per month. The submission is that it is disregarding such specific averments in the claim petition that the Tribunal fixed the monthly income notionally at `1,500/-. Evidently, in this case, no oral evidence was adduced by both sides. It is also to be noted that the appellant-petitioner had not adduced any evidence to establish his occupation and income. When that be so, the Tribunal cannot be said to have committed any error in fixing the monthly income notionally. Still, the question whether the Tribunal has properly fixed the monthly income and whether it invites any interference has to be looked into. The accident occurred in the year 2001 and the appellant was then aged only 40 years. While considering the question whether it is to be enhanced or not, we are of the view that a guidance can be had from the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram** **M.A.C.A.180/2009** 5 **Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** In that case, the Apex Court fixed the monthly income of a coolie who met with an accident in the year 2004 as `4,500/-, for calculation purpose. True that, in this case, the accident occurred about three years prior to the accident involved in **Ramachandrappa** 's case. Taking into account all the aforesaid factors, we are of the view that it is only proper and just to fix the monthly income of the appellant as `3,000/-, for calculation purpose. It is fixed accordingly. 6.The Tribunal took the multiplier as 15. It is to be noted that the appellant-petitioner had not produced any document to establish his actual age or date of birth. In such circumstances, when the appellant asserted in the claim petition that he was aged 40 years, it can only be taken that he has crossed 40 years and in such circumstances, in the light of the schedule given in the decision in ## **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802** **(SC)],** the multiplier to be adopted for the age group 41-45 years viz., **M.A.C.A.180/2009** 6 14 has to be applied in this case. With the modified multiplier, multiplicand and the percentage of disability which was assessed under Ext.X1, the compensation payable for permanent disability has to be re-assessed and on such assessment, the appellant would be entitled to get an amount of `32,760/- additionally under that head. It is awarded. Taking note of the monthly income fixed by us, the appellant is entitled to get a proportionate enhancement under the head loss of income. For that purpose, the Tribunal took the period as 5 months. For the same period based on the modified monthly income, the appellant is entitled to get `7,500/-more. It is granted. As noticed hereinbefore, going by Ext.X1, the appellant had incurred permanent disability to the tune of 40%. The impugned judgment itself would reveal that the Tribunal took the period of loss of income as five months. Taking into account such aspects, we are of the view that the Tribunal ought to have granted compensation for loss of amenities. We are of the considered view that in the aforesaid circumstances, the appellant is entitled to get compensation for loss of **M.A.C.A.180/2009** 7 amenities which we are fixing as `15,000/-. In the light of the above discussions, the appellant is entitled to get a total enhanced amount of `60,260/- which is rounded off to `60,300/-. The said enhanced amount will carry interest @ 8% from the date of the petition till realisation. The third respondent is directed to deposit the enhanced amount within two months from the date of receipt of a copy of this judgment failing which the amount remaining to be paid will carry interest @ 9%. The appeal is accordingly allowed. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K. P. JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.180/2009** 8 **M.A.C.A.180/2009** 9 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.180/2009** 10