K.K. Jayaprakash v. Ramachandran, Ganesh & The New India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 21ST DAY OF JULY 2017 / 30TH ASHADHA, 1939** **MACA.No. 889 of 2011** **AGAINST THE JUDGMENT AND AWARD DATED 28-01-2011 IN OPMV 2098/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TRISSUR** ## **APPELLANT(S)/PETITIONER** **K.K.JAYAPRAKASH, S/O.KOCHU, T.C.7/330 C, KALLINGAL HOUSE, KUNDUVARA ROAD, CHEMBUKKAVU, THRISSUR.** **BY ADV.SRI.T.C.SURESH MENON** ## **RESPONDENT(S)/RESPONDENTS:** **1. RAMACHANDRAN, S/O.GOVINDAN,** **POYYARA HOUSE, CHEROOR P.O., THRISSUR DISTRICT.680008** **2. GANESH, S/O.UNNICHEKKAN, POYYARA VEETTIL** **MANNUMKADU, CHEROOR P.O., THRISSUR DISTRICT.680008** **3. THE NEW INDIA INSURANCE CO.LTD., PERINCHERY BUILDINGS, ROUND NORTH, THRISSUR.680001** **R,R3 BY ADV. SRI.A.C.DEVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SKS** ## **C.T.RAVIKUMAR & ANIL K NARENDRAN, JJ.** **----------------------------------M.A.C.A. No. 889 of 2011 ---------------------------------------------Dated this the 21[st ] day of July, 2017** ## **JUDGMENT** ## **C.T.Ravikumar, J.** In a collision between a Scooter and a Motor Cycle, the appellant, who was the scooterist sustained injuries. He was a sexagenarian, precisely aged about 65 years. On sustaining injuries, he was taken to Aswini Hospital, Thrissur and he remained there as an inpatient for a period of 12 days. The injuries resulted in permanent disability. It was in such circumstances that he filed O.P. (M.V.) No. 2098 of 2005 claiming a total compensation of Rs.3 lakhs. Before the Tribunal, the appellant did not adduce any oral evidence. In fact, the evidence before the Tribunal consisted only of the documentary evidence on the side of the appellant viz., Exts.A1 to A8 series. As per the impugned award, the Tribunal had granted an amount of Rs.83,795/- rounded off to Rs.84,000/- with M.A.C.A. No. 889 of 2011 2 interest at the rate of 8% per annum from the date of the petition till realization. It is seeking enhancement of the quantum of compensation that the above appeal has been preferred. 2. Heard. 3. The learned counsel for the appellant submitted that the Tribunal had erred in fixing the monthly income notionally and also in assessing the disability, for the purpose of computing compensation for permanent disability. It is the submission that the said erroneous estimation resulted in denial of just compensation to the appellant. The learned counsel further submitted that, for the purpose of computing compensation for loss of earnings, the Tribunal had taken only a short period of three months. That apart, it is contented that the Tribunal had failed to grant any amount towards loss of amenities, even when it was established before the Tribunal that the injuries sustained by the appellant had resulted in permanent disability. 4. Having heard the submissions and on going M.A.C.A. No. 889 of 2011 3 through the impugned judgment, we are of the view that an appellate interference is called for. In the claim petition, it is averred that he was doing real estate business and was earning Rs.7,000/- per month. However, the appellant had failed to adduce any evidence to establish such contentions. When that be so, the Tribunal cannot be said to have erred in fixing the monthly income notionally. However, the question is whether the fixation of monthly income as Rs.2,500/warrants interference. 5. Taking into account the age of the appellant at the time of the accident, the year of the accident, and also the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. in [2011 (3) SCC 236],** we are of the considered view that the monthly income ought to have been fixed as Rs.5000/- . Accordingly, it is fixed notionally as Rs.5,000/-. 6. The next question to be considered is whether the grievance of the appellant regarding the assessment M.A.C.A. No. 889 of 2011 4 of the disability made by the Tribunal invites an interference. True that, the appellant had produced Ext.A7, disability certificate issued by one Dr.P.J.Jacob, Assistant Professor attached to Medical College Hospital, Thrissur. Going by the same, the extent of permanent disability of the appellant is 20%. However, it is a fact that the appellant had failed to get examined the said doctor. When it is evident that the disability certificate issued is not one issued by a duly constituted Medical Board and the failure to get examined the doctor who issued the same, the disinclination shown by the Tribunal to act upon Ext.A7 cannot be said to be illegal or improper, going by the decision of the Hon’ble Apex Court in **Rajkumar v. Ajayakumar** reported in 2011 (1) KLT 620. Evidently, taking note of the nature of the injuries perhaps on seeing the appellant in Court, the Tribunal took the extent of disability as 5%. In the circumstances, we do not think it proper to interfere with the said assessment. 7. The learned counsel for the appellant 5 M.A.C.A. No. 889 of 2011 further contended that the Tribunal had also gone wrong in adopting the multiplier. Evidently in the claim petition, the age of the appellant was given as 65. In the absence of the evidence establishing the actual date of birth, the Tribunal took that he had crossed 65 years and adopted the multiplier as '5'. In the light of the schedule given in the decision in **Sarla Verma v. Delhi Transport Corporation reported in [2010 (2) KLT 802],** there is no reason to hold that the adoption of the multiplier as '5' is erroneous. In fact, it was correctly identified by the Tribunal. In short, a re-assessment of compensation for permanent disability is required only by substituting the re-fixed monthly income. On such re-assessment, the amount payable would be Rs.15,000/- . The Tribunal had already granted an amount of Rs.7,500/-. Therefore, the appellant is entitled to get an amount of Rs.7,500/-, additionally. The Tribunal had fixed the period for calculating compensation for loss of earning as three months. Taking into account the nature of injuries revealed from Ext.A5 wound certificate, we do not find M.A.C.A. No. 889 of 2011 6 any reason to interfere with the fixation of the period for calculating compensation for loss of earning. It was rightly taken as three months by the Tribunal. Based on the re-fixation of the monthly income, the appellant is entitled to get a proportionate enhancement in the amount of compensation granted under the said head, as well. Consequently, he will be entitled to get an amount of Rs.7,500/- additionally towards loss of earning. 9. Towards pain and suffering, the Tribunal has granted an amount of Rs.16,000/-. The impugned judgment itself would reveal that the Tribunal, on a careful analysis of the records, found that he was treated by closed interlocking nailing of Tibia, open reduction and internal fixation of Fibula besides application of POP slab. There was a malunion of Tibia. That apart, it is evident that there was stiffness on the right ankle. Taking into account all such aspects, we are inclined to grant an amount of Rs.4,000/- more towards pain and suffering. The Tribunal had not granted any amount towards loss of amenities. Taking into account the facts and factors M.A.C.A. No. 889 of 2011 7 referred herein before, we are of the view that an amount of Rs.10,000/- can be granted under this head. It is granted. 10. In the light of the assessment / re-assessment made by us, the appellant is entitled to get an additional compensation of Rs. 29,000/-. It is awarded. Since there is no dispute regarding the liability of the 3[rd] respondent, insurer to indemnify the insured owner of the offending vehicle, the 3[rd] respondent is directed to deposit the additional compensation of Rs.29,000/- along with the interest at the rate of 8% per annum from the date of the petition till realization, within a period of one month from the date of receipt of a copy of this judgment. There will be no order as to costs. sd/- **C.T.RAVIKUMAR JUDGE** sd/- **ANIL K NARENDRAN JUDGE** **SKS**