K.N. Manoj v. Jugal Kishore and Kanti Sangameshwari and United India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA,** **1943** ## **MACA NO. 2034 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.566/2003 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL MUVATTUPUZHA, ERNAKULAM** ## **APPELLANT/PETITIONER :** **K.N.MANOJ, S/O.K.N.NARAYANAN, KUDIYIRICKAL HOUSE, POTHANICAD, P.O.KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, KERALA STATE.** **BY ADVS. SRI.C.DILIP SRI.K.C.KIRAN** ## **RESPONDENTS/RESPONDENTS :** ***1 JUGAL KISHORE, S/O.J.BHAGWAN DAS, NEAR TULJA BHAVANI TEMPLE, TARANAGAR, LINGAMPALLY, HYDRABAD.** ***2 KANTI SANGAMESHWAR, S/O.MANIKAYAM TARANAGAR, LINGAMPALLY, KAMKOLE (V), MUNIPALLY MANDAL, MEDAK DISTRICT, ANDHRA PRADESH.** ## ***DELETED** **THE RESPONDENT NOS.1 AND 2 ARE DELETED FROM THE PARTY ARRAY IN THE APPEAL AT THE RISK OF THE APPELLANT IN IA 2925/2013 AS PER ORDER DATED 20/07/2021.** M.A.C.A.No.2034 of 2009 ..2.. **3 THE BRANCH MANAGER, UNITED INDIA ASSURANCE CO.LTD., BHEL SERVICING, BHEL TOWNSHIP, R.C.PURAM - 502 032.** **BY SRI.S.K.AJAY KUMAR, STANDING COUNSEL SRI.P.V.JYOTHI PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2034 of 2009 ..3.. ## **M.A.C.A.No.2034 of 2009** **-------------------------------------------------------** ## **J U D G M E N T** This is an appeal at the instance of the petitioner in O.P.(MV)No.566 of 2003 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha challenging award dated 30.08.2007 whereby the Tribunal granted Rs.4,69,650/- as compensation as against the claim of Rs.8,00,000/-. 2. Brief facts of the case: The appellant, who met with an accident on 14.10.2001, at about 4.30 p.m. while riding a motorcycle through N.H.9, was alleged to be hit down by autorickshaw bearing registration No.AP-28-U-3390 driven by the second respondent in a rash and negligent manner. 3. Heard the learned counsel on both sides. M.A.C.A.No.2034 of 2009 ..4.. 4. Respondents 1 and 2 were set exparte by the Tribunal. 5. The third respondent filed written statement admitting the policy and the liability was denied on alleging violations of policy conditions. 6. The Tribunal examined PW1 and PW2 and marked Exts.A1 to A14 on the side of the appellant. No evidence let in by the contesting respondents. After having considered the claim on the basis of the available evidence, the Tribunal granted Rs.4,69,650/-. 7. While canvassing increase in the award, the learned counsel for the appellant would submit that the monthly income claimed by the appellant Rs.5,000/- being a carpenter was not considered by the Tribunal and the Tribunal fixed monthly income at the rate of Rs.3,000/-. Therefore, he canvassed increase in monthly income. The learned counsel for the insurance company refuted his contention on the M.A.C.A.No.2034 of 2009 ..5.. submission that this is an accident of the year 2001 and the standards prevailing during the relevant period was considered by the Tribunal while fixing the monthly income and therefore, no sort of increase is permissible in the present case. 8. Having analysed the contentions raised by both sides, it has to be observed that even going by the principles in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company** **Ltd.,** during the year 2004, the income of a coolie was fixed at Rs.4,500/-. Therefore, there is no reason to hold that the income of a person who had no documents to prove the original income should be more than Rs.3,000/- during 2001. In view of the matter, I am not inclined to increase the monthly income, in the instant case, where the accident occurred during 2001. Therefore, the said claim is rejected. 9. It is submitted by the learned counsel for the appellant further that as per Ext.A11 disability certificate M.A.C.A.No.2034 of 2009 ..6.. issued by the Medical Board, 40% disability was assessed in relation to the appellant. The learned counsel conceded the fact that PW1, one among the doctors of the Medical Board, who was examined before the Tribunal not given convincing evidence to support Ext.A11. He submitted further that, in this context, the appellant obtained Ext.A14 disability certificate issued by Dr.M.S.Bosalai fixing 35% disability to the appellant. Though Dr.M.S.Bosalai when examined as PW2 given evidence in support of Ext.A14, according to the learned counsel for the appellant, acting on Ext.A11, 40% disability would have been taken by the Tribunal in comparison with the seriousness of injuries. Whereas, the learned counsel for the insurance company would urge that as per Ext.A14, supported by the evidence of PW2 the percentage of disability is assessed as 35% alone and the Tribunal rightly fixed the same accordingly and therefore, no increase is necessary. 10. While addressing this issue, it has to be M.A.C.A.No.2034 of 2009 ..7.. observed that Ext.A11 is the disability certificate issued by the Medical Board. In order to prove the same, PW1 was examined and his evidence in fact did not support the percentage of disability assessed as per Ext.A11. It is at this juncture the petitioner obtained Ext.A14 disability certificate issued by another doctor who was examined as PW2 to prove Ext.A14. The evidence of PW2 is confined to the point that the disability is only 35% considering shortening of right leg of 2 ½ inches, with grosely wasted limb. Having considered the categorical evidence given by PW2 limiting the disability at 35% as stated in Ext.A14, the Tribunal could not be faulted in the matter of fixing the disability at 35%. Therefore, I am not inclined to interfere with the said finding to revisit the disability of 35% fixed by the Tribunal. 11. It is submitted by the learned counsel for the appellant further that pain and sufferings granted by the Tribunal to the tune of Rs.50,000/- is on a lower side taking M.A.C.A.No.2034 of 2009 ..8.. note of nine months hospitalisation underwent by the appellant. Nine months hospitalisation is not a matter in dispute, otherwise the same could be gathered from Ext.A4 discharge card. Here, as per Ext.A4, the appellant sustained open supra condylar fracture of right femur, Type II open fracture both bones of right leg and fracture of right patella comminuted. Accordingly, the appellant underwent treatment, viz., wound debridement, external fixation of leg and femur and patillictomy and skin grafting. Considering the nature of treatment, I am of the view that **Rs.15,000/-** more can be granted under the head pain and sufferings, though grant of the said amount is specifically opposed by the learned counsel for the insurance company pointing the fact that the standard prevailing during 2001 was considered for grant of Rs.50,000/under the head pain and sufferings and as such the said amount is just and reasonable. 12. It is pointed out by the learned counsel for the M.A.C.A.No.2034 of 2009 ..9.. appellant that the Tribunal granted Rs.40,000/- under the head loss of amenities where the appellant sustained very serious injuries as discussed above. Though the Tribunal could not be faulted in the matter of granting Rs.40,000/- as loss of amenities based on the standards prevailing during the year 2001, as rightly pointed out by the learned counsel for the insurance company, the fact remains is that the appellant sustained very serious injuries including shortening of right leg of 2 ½ inches, with grosely wasted limb. Therefore, there is no iota of doubt that the accident curtailed enjoyment of life of the appellant who was aged 28 years at the time of accident and therefore, some more amount under the head loss of amenities is liable to be granted in the interest of justice. Accordingly, I am inclined to grant **Rs.25,000/-** more under the head loss of amenities. 13. It is submitted by the learned counsel for the appellant that though the appellant underwent inpatient M.A.C.A.No.2034 of 2009 ..10.. treatment for nine months, the Tribunal granted only Rs.120/per day confining the same to Rs.33,000/- alone. I am not inclined to increase any amount under this head, since the submission made by the learned counsel for the insurance company that Rs.120/- per day during the year 2001 is the maximum amount granted under the head bystanders expenses is having force. 14. Going by the award, Rs.5,000/- was granted by the Tribunal under the head extra nourishment. Considering the nature of injuries and prolonged treatment as already discussed, I am of the view that **Rs.10,000/-** more under this head also can be granted in this particular case. In the result, this appeal is allowed in part. It is ordered that the appellant is entitled to get enhanced compensation to the tune of **Rs.50,000/-** (Rupees Fifty Thousand only). This appeal was filed with the delay of 470 days and the same was condoned by order dated 08.11.2013 M.A.C.A.No.2034 of 2009 ..11.. holding that the appellant would not be entitled to get interest on the additional compensation awarded by this Court for the period of 470 days. Therefore, it is ordered that the appellant is entitled to get interest at 9.5% interest granted by the Tribunal to the enhanced compensation excluding the period of 470 days ending on 05.04.2009. The insurance company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same forthwith. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj