KURIAN v. THE NEW INDIA INSURANCE COMPANY LIMITED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 19TH DAY OF OCTOBER 2016/27TH ASWINA, 1938** **MACA.No. 3186 of 2016 () -------------------------** ## **AGAINST THE AWARD IN OPMV 1174/2010 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-I, ALAPPUZHA. DATED 05-10-2015** ## **APPELLANT/PETITIONER:** **---------------------------------** **KURIAN AGED 54 YEARS, S/O. AUSO, PUTHUKADANSERRY, EZHUPUNNA P.O., CHERTHALA, ALAPPUZHA DISTRICT.** ## **BY ADV. SMT.K.N.RAJANI** ## **RESPONDENT/3RD RESPONDENT:** **----------------------------------------** **THE NEW INDIA INSURANCE COMPANY LIMITED KOLLAM.691 001** ## **BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.3186 of 2016** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of October, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The appellant was the claimant in O.P.(M.V.) 1174/2010 on the file of the Additional Motor Accidents Claims Tribunal-I, Alappuzha. For the injuries sustained in a motor vehicle accident on 12.11.2009 he claimed a compensation of Rs.5 lakhs. The claim petition was filed under 166 of the M.V. Act. The appellant was a pedestrian. He was knocked down by a Quails jeep bearing registration No.KL-01/U-6933. He was immediately taken to Lakeshore Hospital, Ernakulam and he remained therein as an inpatient from 12.11.2009 21.11.2009. He claimed a total compensation of Rs.5 lakhs and the Tribunal as per the award dated 5.10.2015 granted a compensation of Rs.2,60,548/- with interest at the rate of 9% per annum from the date of petition till realisation. The appellant is M.A.C.A.No.3186 of 2016 2 aggrieved by the said award and seeks for enhanced compensation. 2. A bare perusal of the impugned judgment itself would reveal that on a careful scrutiny of the evidence on record the Tribunal arrived at a categoric finding that the appellant sustained injuries in a motor vehicle accident and the accident occurred due to the negligent driving of the Qualis jeep by the first respondent. Consequently the Tribunal found that the first respondent is primarily liable to compensate the appellant, the second respondent owner was found vicariously liable and since the third respondent admitted the insurance coverage of the offending vehicle the third respondent was made liable to indemnify the second respondent. True that before the Tribunal the case of the appellant is that the injuries sustained by him in the accident resulted in permanent disability. A perusal of the appendix to the judgment would make it clear that despite setting up such a case besides producing Exts.A5 to A7 the appellant had not adduced any evidence to establish his M.A.C.A.No.3186 of 2016 3 claim that the injury sustained in the accident resulted in permanent disability. True that the medical records which were taken into consideration in detail by the Tribunal. As can be seen from paragraph 6 of the impugned judgment, in the accident the appellant sustained closed fracture on the shaft of right femur, open fracture on the right tibia and fibula, closed bimalleolar fracture on the left ankle and lacerated wound on the right elbow. There is a detailed discussion in the judgment regarding the treatment underwent by the appellant as revealed from the medical records. It would reveal that wound debridement of right leg was done, fracture of right tibia was stabilised with interlocking nail. The appellant was also put on distal femur skeletal traction for the fracture right femur. Interlocking nailing was also done on the right femur and internal fixation of bimalleolar fracture was done. As noticed hereinbefore the appellant had not adduced any oral or documentary evidence to establish that the injuries referred hereinbefore resulted in permanent disability. In such M.A.C.A.No.3186 of 2016 4 circumstances in the light of the decision of the Hon'ble Apex Court in **Raj Kumar v. Ajay Kumar [(2011) 1 SCC (Civ) 164]** it cannot be said that the Tribunal has erred in not assessing the permanent disability. It is a case where the appellant had failed to establish that the injures sustained by him in the accident resulted in permanent disability. Taking into account all such aspects, we are of the view that the question of entitlement to get enhanced compensation on other grounds can be decided at the admission stage itself. In other words we are of the view that this appeal can be disposed of at the admission stage itself. 3. As noticed hereinbefore the accident occurred on 12.11.2009. Though the appellant specifically stated in the claim petition that he was a Watcher and was earning Rs.8,000/- per month he had not adduced any evidence to establish his claim regarding the occupation and income. In such circumstances the Tribunal rightly fixed the monthly income on notional basis for calculation purpose. But then M.A.C.A.No.3186 of 2016 5 the question is whether the notional fixation of the monthly income as Rs.4,500/- is reasonable and whether it invites interference. It is in that regard the fact that the accident occurred at the fag end of 2009 and at that time the appellant was aged only 51 years are to be taken into account. In the absence of specific datas supported by materials regarding the occupation and income we are of the view that in the matter of fixation of monthly income notionally the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** ought to have been taken as guidance by the Tribunal. In that case for calculation purpose in respect of a coolie who suffered injuries in a motor vehicle accident in the year 2004 the Hon'ble Apex Court took monthly income as Rs.4,500/-. Taking note of the passage of years since then and the other relevant factors mentioned before we are of the view that it is only proper and reasonable to fix the monthly income for calculation purpose as Rs.6,500/-. It is M.A.C.A.No.3186 of 2016 6 accordingly fixed. The Tribunal took the period of loss of earning as four months. We have already considered the nature of the injures as revealed from Exts.A5 to A7 series discussed in detail in the judgment. The treatment underwent by the appellant was also given in detail therein. Taking into account such aspects we are of the view that the period taken by the Tribunal for assessing compensation for loss of earning is too low and taking into account such aspects we are inclined to take the period as seven months. Based on the monthly income fixed by us for a period of seven months the appellant would be entitled to get an amount of Rs.45,500/- towards loss of earnings. Since the Tribunal has already granted an amount of Rs.18,000/under that head the appellant would be entitled to get additionally an amount of Rs.27,500/-. On a careful scanning of the impugned judgment and considering the relevant factors we are of the view that the Tribunal has granted only a meagre amount under the head loss of amenities. On considering such relevant factors, we are also of the view M.A.C.A.No.3186 of 2016 7 that there was no justification for declining any amount towards future treatment. Apart from the aforesaid heads we do not find any reason to hold that the appellant is entitled to get enhanced compensation under any other heads. Taking note of the nature of the injures and the nature of treatment and the period of convalescence and its aftermath we are of the view that the appellant is entitled to get Rs.15,000/- more towards loss of amenities. It is granted. The details of treatment given therein would reveal that there was internal fixation. In such circumstances we are inclined to grant Rs.15,000/- towards future treatment. In the light of the assessment and enhancement made by us the appellant is entitled to get an additional compensation of Rs.57,500/- (Rupees fifty seven thousand five hundred only). It is awarded. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The respondent insurer is directed to deposit the said amount along with interest within a period of two months from the M.A.C.A.No.3186 of 2016 8 date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** Sd/- **JUDGE** //True copy// P.A. TO JUDGE shg/