K.C. Sreenivasan v. Shibu George, Santosh E.J. and The New India Assurance Co. Ltd.

1 MACA No.1223 of 2009 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943 MACA NO. 1223 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1525/2003 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY APPELLANT/S:** K.C.SREENIVASAN, S/O.CHELLAPAN AGED 33 YEARS, KARUTHEDATH HOUSE, KELAKAM, P.O.KELAKAM. BY ADVS. SRI.M.SASINDRAN SRI.M.V.BIPIN ## **RESPONDENT/S:** 1 SHIBU GEORGE , VALLAPPALLIYIL HOUSE P.O.CHETTIAMPARAMBA, VIA KELAKAM. 2 SANTHOSH E.J. , S/O.JOSEPH EZHUPURAYIL HOUSE, PALCHURAM, P.O.,KOTTIYOOR,, (DRIVER OF JEEP NO. KL-10 B-4111), (D.L.NO.1061/1998) 3 THE NEW INDIA ASSURANCE CO.LTD. KANNUR, (POLICY NO.3176080368175) BY ADV SRI.P.K.BABU - R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1223 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.1223 of 2009** ## **====================== Dated this the 13[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1525/2003 on the file of the Additional Motor Accident Claims Tribunal, Thalassery. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 28.5.2002. It was his case that, on the above said date, while he was riding a motor cycle bearing registration No.KL-13/F 1584 from Kelakam Manhalampuram, a jeep bearing registration No.KL-10/B 4111 (jeep), driven by the second respondent in a rash and negligent manner, hit the motor cycle of the appellant. The appellant sustained serious injuries including a Grade 3 MACA No.1223 of 2009 I open fracture of both bones of his right leg and fracture medial malleolus closed right. He was treated as an inpatient for a period of 70 days in two spells at the Tellichery Co-operative Hospital, Tellichery and the Medical College Hospital, Kozhikode. He underwent open reduction internal fixation. The appellant was an autorickshaw driver by profession and was earning a monthly income of Rs.4,500/-. The first respondent was the owner and the third respondent was the insurer of the jeep. Hence, the appellant claimed a total compensation of Rs.8,00,000/- from the respondents. 3. The respondents 1 and 2 had filed a joint written statement contending that the accident occurred due to the negligence of the appellant. It was also contended that the jeep was insured with the third respondent. 4. The third respondent had filed a written statement admitting that the jeep had a valid insurance coverage. The third respondent also contended that the 4 MACA No.1223 of 2009 second respondent did not hold a valid and effective driving licence. Therefore, the first respondent had violated the policy conditions. The third respondent also stated that the compensation claimed by the appellant was excessive. 5. The appellant examined himself and a Doctor as PWs 1 and 2 and marked Exts A1 to A8 in evidence. The case sheet of the appellant's treatment was marked as Exts X1 and X2 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.1,26,200/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.M.Sasindran, the learned counsel appearing for the appellant/petitioner and Sri.P.K Babu, 5 MACA No.1223 of 2009 the learned counsel appearing for the third respondent/insurer. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. The specific case of the appellant was that the accident occurred due to the negligence of the second respondent. In order to substantiate the said pleading, the appellant produced Exts A1 FIR and A2 accident register cum wound certificate. The respondents did not let in any evidence to controvert the assertion in the claim petition as well as to discredit Exts A1 and A2. Even though the appellant was cross-examined, nothing was brought out to disbelieve his oral testimony. Therefore, as no contra evidence has been let in by the respondents and the fact that the third respondent has not proved that the first respondent had violated the 6 MACA No.1223 of 2009 insurance policy conditions, I hold that the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was an autorickshaw driver by profession and earning a monthly income of Rs.4,500/- . For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2,500/-. 12. The Hon'ble Supreme Court in ## **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2002, I refix the notional monthly income of the appellant at Rs.3,500/-. 7 MACA No.1223 of 2009 ## **Multiplier** 14. Admittedly, the appellant was aged 30 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '17'. **Loss of earnings** 15. It is proved that the appellant had sustained a Grade I open fracture of both bones of his right leg and fracture medial malleolus closed right. Therefore, necessarily, he was indisposed for a period of four months. In view of the refixation of the notional monthly income of the appellant at Rs.3,500/-, I award him an amount of **Rs.14,000/-** towards loss of earnings instead of Rs.5,000/awarded by the Tribunal. ## **Disability** 16. The appellant had examined PW2 who proved Ext A5 disability certificate. PW2 has in unequivocal terms 8 MACA No.1223 of 2009 testified that the appellant has sustained a partial ankylosis of his right ankle, shortening of his right leg by about 1½ inches and medical angulation of right leg by 10∘. Accordingly, PW2 has assessed that the permanent disability of the appellant at 15% and professional disability at 38% as per the Mc Brides scale. 17. The Tribunal on the ground that the evidence of PW2 was not satisfactory, declined to accept Ext A5 disability certificate and has fixed the permanent disability of the appellant at 13%. 18. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that if the Tribunal is not satisfied with the disability certificate produced before it, it is imperative for the Tribunal to refer the injured-claimant to a Medical Board. 19. In the instant case, after accepting and marking Ext A5 disability certificate, that too with the corroborative evidence of PW2 and without any objection 9 MACA No.1223 of 2009 or protest from the respondents, the Tribunal ought not have scaled down the permanent disability of the appellant to 13%. 20. In **Raj Kumar v. Ajay Kumar** (supra), the Hon'ble Supreme Court has observed that what needs to be looked into in an injury-claim is the functional disability of the injured-claimant. 21. In the instant case, in the light of Ext A5 disability certificate read with oral testimony of PW2 and in view that the appellant has a partial ankylosis of his right ankle, shortening of his right leg by about 1½ inches and medical angulation of right leg by 10∘, and as he is an auto-rickshaw driver, I fix his functional disability at 20%. ## **Loss due to disability** 22. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at 3,500/-, the multiplier at 17 and the functional disability 10 ## MACA No.1223 of 2009 at 20%, I award the appellant an amount of **Rs.1,42,800/-** towards loss due to disability instead of Rs.70,200/- awarded by the Tribunal. ## **Bystander expenses and Extra Nourishment** 23. It is proved and established as per Exts X1 and X2 case records that the appellant was admitted and treated as an inpatient for a period of 70 days. As the accident occurred in the year 2002, I award him an amount of Rs.200 per day for a period of 70 days towards bystander expenses, which works out to **Rs.14,000/** -. 24. Likewise, I award him an amount of Rs.100/- per day for a period of 70 days towards extra nourishment, which amounts to **Rs.7,000/-** . ## **Pain and sufferings and Loss of amenities** 25. The Tribunal has awarded an amount of Rs.19,000/- under the head 'pain and sufferings' and Rs.8,000/- under the head 'loss of amenities'. 26. Taking into account the serious nature of injuries 11 MACA No.1223 of 2009 sustained by the appellant, that he was treated as inpatient for a period of 70 days, that he was indisposed for a period of four months and that he has suffered a functional disability of 20%, I award him a further amount of **Rs.11,000/-** under the head 'pain and sufferings' and **Rs.12,000/-** under the head 'loss of amenities'. ## **Other heads of compensation** 27. With respect to the other heads of claim, viz., other eligible counts and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 28. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. 12 MACA No.1223 of 2009 |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|5,000/-|14,000/-| |2|Other eligible counts, viz.,<br>Transportation expenses<br>and damage to clothing|2,000/-|2,000/-| |3|Extra nourishment|Nil|7,000/-| |4|Bystander expenses|Nil|14,000/-| |5|Medical expenses|22,000/-|22,000/-| |6|Pain and sufferings|19,000/-|30,000/-| |7|Loss of amenities etc|8,000/-|20,000/-| |8|Loss due to disability|70,200/-|1,42,800/-| ||Total|1,26,200/-|2,51,800/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.1,25,600/-** (Rupees One Lakh Twenty Five Thousand and Six Hundred only) with interest at the rate of 7% per annum on the enhanced compensation from the date of claim petition till the date of realisation and a cost of Rs. 15,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and 13 MACA No.1223 of 2009 costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant/petitioner, in accordance with law. Sd/- sks/13.1.2022 **C.S.DIAS, JUDGE**