K.N. Vijayakumar v. K.S. Ajithkumar, S.M. Travels; Sabu @ Chandrababu; The Divisional Manager, The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937** **MACA.No. 1122 of 2008 ( ) --------------------------** **AGAINST THE AWARD IN OPMV.NO. 1102/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOTTAYAM DATED 19-11-2007** **APPELLANT/PETITIONER:** **-------------------** **K.N.VIJAYAKUMAR, S/O.K.N.NARAYANA KAIMAL KANNUVETTICKAL HOUSE, MEENADOM.P.O., KOTTAYAM.** **BY ADV. SRI.PAULY MATHEW MURICKEN** ## **RESPONDENTS/RESPONDENTS:** **-----------------------** **1. K.S.AJITHKUMAR, S.M.TRAVELS,** **T.B.ROAD, TRIVENI COMPLEX, KOTTAYAM.** **2. SABU @ CHANDRABABU, S/O.SUBRAMANIYAN, ETTOORUVEETTIL, VELLOOR VILLAGE, KOTTAYAM VELLOOR KARA.** **3. THE DIVISIONAL MANAGER, THE NEW INDIA ASSUSRANCE CO.LTD., KOTTAYAM.** **R3 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **cl** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------ ## **M.A.C.A.No.1122 of 2008** ---------------------------------------------------Dated this the 4[th] day of March, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Claimant in O.P.(M.V.)No1102/2003 on the file of the Motor Accidents Claims Tribunal, Kottayam is the appellant herein. The appellant filed the application for compensation for the injuries sustained by him in a motor vehicle accident occurred on 01.05.2002. According to him, he along with his friends were travelling in the vehicle with No.KL-5E/4262 to visit Munnar for a picnic and when they reached the place called Judges Bungalow on Pallivasal Attukadu road, the vehicle stopped and when he was trying to board the bus, the second respondent took the bus in a negligent manner, which was owned by the first respondent and insured with the third respondent and back door of the bus hit against the petitioner caused severe injuries. He was _**M.A.C.A.No.1122 of 2008**_ 2 working as collection agent for Pournami financiers and also for Pampady Co-operative Housing Society, Pampady and getting a monthly income of Rs.4,500/- per month. On account of the injury sustained, he suffered severe disability affecting his earning capacity and he claimed total compensation of Rs.6,52,500/- limited to Rs.5,00,000/-. 2. Respondents 1 and 2 remained absent. Third respondent entered appearance and filed written statement admitting the insurance of the mini bus, but denied the liability. According to them, second respondent was not having the valid driving licence and badge to drive the vehicle, they denied the age, income, occupation, nature of injury sustained, disability etc., claimed by the petitioner. According to them, the total compensation prayed is exorbitant and they prayed for dismissal of the application. 3. The petitioner was examined as PW1 and the doctor was examined as PW2. Exts.A1 to A16 were marked on the side of the petitioner. No oral or documentary _**M.A.C.A.No.1122 of 2008**_ 3 evidence was adduced on the side of the respondents. After considering the evidence on record, the court below found that the accident occurred due to the negligent driving of the mini bus by the second respondent and awarded a total compensation of Rs.2,14,400/- on various heads as follows: |**_Heads_**|**_Amount_**| |---|---| |Loss of earning capapcity|₹96,000/-| |Loss of amenities in life|₹30,000/-| |Damage to clothing|₹500/-| |Loss of earning|₹20,000/-| |Transportation|₹3,000/-| |Treatment expenses|₹12,900/-| |Bystanders expenses|₹6,000/-| |Extranourishment|₹4,000/-| |Total|₹2,14,400/-| and directed the insurance company, the third respondent, to pay the amount with interest. Dissatisfied with the quantum of compensation awarded, the above appeal has been preferred by the appellant/claimant before the court below. 4. Heard Sri.Pauly Mathew Muricken, counsel appearing for the appellant and Sri.Lal George, counsel appearing for the third respondent. 5. The counsel for the appellant submitted that _**M.A.C.A.No.1122 of 2008**_ 4 the injured suffered severe injuries and he was treated as inpatient for 102 days of which 22 days were in the intensive care unit. He had suffered 31.5% disability which was proved through PW2, the doctor who was one of the members of the Medical Board who issued the same. In spite of that court below had taken the disability as only 20%, which is very low. Further he had produced documents to prove his collection commission as Rs.4,000/-, but in spite of that court below had taken only Rs.2,500/- as his monthly income, which is very low. No future prospects have been taken into consideration by the tribunal for awarding compensation under the head permanent disability as well. The amounts awarded under the head pain and suffering, loss of amenities in life, loss of earning capacity etc., are in the lower side. According to him, the appellant is entitled to get enhancement on all other heads. 6. On the other hand, the learned counsel for the insurance company submitted that in the absence of any _**M.A.C.A.No.1122 of 2008**_ 5 convincing evidence adduced, the tribunal was perfectly justified in fixing the monthly income as Rs.2,500/- per month and the total compensation, considering the nature of injury sustained is just and proper and no enhancement is called for. 7. Since the accident as well as the negligence part has not been challenged, we are not making any effort to go into these aspects to avoid the repetition in the judgment. 8. The case of the claimant was that, he was working as a collection agent for Pournami Financiers and also for the Pampady Co-operative Housing Society, Pampady and getting a monthly income of Rs.4,500/- per month. He was examined as PW1 and he had produced Ext.A13 salary certificate issued from Pornami Financiers, Pampady, where it was mentioned that he was getting a collection commission of Rs.4,000/- per month. But it was not supported by any other related documents, just like collection sheet etc. Further it is not necessary that he _**M.A.C.A.No.1122 of 2008**_ 6 must get a constant collection every month and it is likely to vary as well. He had not produced any document to prove any income he was getting as collection agent of Pampady Co-operative Housing Society. However, the accident occurred in the year 2002. He had crossed 39 years and has a family to look after. So considering these aspects, we feel that the amount of Rs.2,500/- taken by the tribunal is very low and it can be taken as Rs.3,000/- per month. The tribunal awarded Rs.20,000/- as loss of earning during the period of treatment, i.e. for 8 months and if Rs.3,000/- is taken as his monthly income, he will be entitled to get Rs.24,000/- under that head, thereby he is entitled to get additional amount of Rs.4,000/- under the head loss of earning during the period of treatment. 9. The petitioner suffered injuries like fracture ribs 2, 4, 5 and 6 on the right side, haemothorax right, lung contusion, fracture scapula right, fracture lateral wall of orbit and left squamous temporal bone, fracture mandible _**M.A.C.A.No.1122 of 2008**_ 7 and maxilla and fracture left clavicle. He was treated as inpatient for 102 days, out of which he was in the intensive care unit for 22 days. Further the evidence of doctor who issued Ext.A10 disability certificate shows that, he sustained permanent partial disability of 31.5%. He had also stated that the disability was assessed on the basis of fracture ribs, fracture clavicle, fracture maxilla and mandible. Further he is also having restriction of movement of his hand. Further it was mentioned that he is having painful malocclusion of mandible and maxilla bone and partial ankylosis of left shoulder. So all these may have affect his earning capacity. The doctor has gone to the witness box and spoken about the disability as well. So considering this aspect we feel that the disability can be taken as 25% instead of 20% taken by the tribunal. 10. In the decision reported in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], the Supreme Court had held that, even in the case of person having no fixed income, _**M.A.C.A.No.1122 of 2008**_ 8 future prospects will have to be taken into consideration and for the age group of 25-40, 30% has to be taken for future prospects. Though it was taken into account, in the case of death for assessing compensation under the head loss of dependency, the same principles have been extended in the case of personal injury also in the decision reported in _**Syed Sadiq v. Divisional Manager, United India Insurance Company**_ [AIR 2014 (SC) 1052]. So applying the above principles and also taking 15 as multiplier as per _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121), the appellant will be entitled to get an amount of Rs.1,75,500/(3,000x130% = 3,900x12x15x25%) instead of Rs.96,000/awarded by the tribunal under the head loss of earning capacity and thereby he will be entitled to get an additional amount of Rs.79,500/- under that head. 11. The tribunal had awarded only Rs.40,000/- under the head pain and suffering. Considering the period of _**M.A.C.A.No.1122 of 2008**_ 9 treatment undergone and also the nature of injury sustained, we feel that the same can be enhanced to Rs.50,000/-from Rs.40,000/- whereby he is entitled to get additional amount of Rs.10,000/- under that head. The tribunal had awarded only Rs.30,000/- under the head loss of amenities in life. The nature of disability mentioned in Ext.A10 disability certificate as spoken to by PW2 will go to show that he will be having some difficulty in opening his mouth and also using his shoulder and he will have to live with this disability for the remaining period of his life. Considering this aspect, we feel that the amount of Rs.30,000/- awarded by the tribunal appears to be on the lower side and we are inclined to enhance the same to Rs.50,000/-, thereby the appellant will be entitled to get an amount of Rs.20,000/- more under that head. We are not inclined to enhance any amount under other heads as the amount awarded appears to be just and proper. So the appellant will be entitled to get an additional compensation _**M.A.C.A.No.1122 of 2008**_ 10 of Rs.1,13,500/-, which the third respondent insurance company is liable to pay together with 9% interest from the date of petition till date of payment. Three months time is granted to the insurance company to deposit that amount. With the above modification of the impugned award passed by the tribunal, the appeal is allowed in part and disposed of accordingly. Parties are directed to bare their respective costs in the appeal. _Sd/-_ **( P.N. Ravindran, Judge)** _Sd/-_ ## **(K. Ramakrishnan, Judge)** // True Copy// P.A. to Judge ss