K.V. Mani v. M.N. Madhavan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 MACA.No. 86 of 2008() --------------------OPMV.1797/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- K.V.MANI, AGED 46 YEARS, S/O VELAYUDHAN, KUNDIL HOUSE, P.O.PADY, KODALY. BY ADV. SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT(S): RESPONDENTS -------------------------- 1. M.N.MADHAVAN, S/O NANU, MUDATHAN PLACKAL HOUSE, MURICKINGAL, KODALY. 2. SURENDRAN, S/O VELAYUDHAN, KUNDIL HOUSE, CHEMBUCHIRA DESOM, MATTATHUR. 3. THE MANAGER, THE ORIENTAL INSURANCE CO. LTD., MAHESHWARI BUILDING, 3RD FLOOR, THRISSUR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY ON 02/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.86 of 2008 ....................................................... Dated this the 8[th] day of March, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The claimant in OP.(M.V.)No1797 of 2007 on the file of the Motor Accidents Claims Tribunal, irinjalakuda is the appellant herein. The claimant filed the claim petition claiming compensation for the personal injury sustained to him in a motor vehicle accident occurred on 17.10.1999 at 7.45p.m. According to the claimant, while he was riding a motor cycle bearing registration No.KL8/M 7823 as pillion rider, driven by the second respondent, owned by the first respondent and insured by the third respondent, when it reached the place of occurrence, due to negligence of the driver, it skidded and fell down causing serious injuries to the claimant. He was aged 39 years, a welder by profession and earning Rs.4,000/- per month. He suffered permanent disability and claimed a total compensation of Rs.2,50,000/- on various heads. 2. Respondents 1 and 2 remained absent. The third respondent entered appearance and filed a written statement admitting the insurance, but denying negligence on the part of the second respondent. They denied the age, income etc of the injured. There was a delay in filing the First Information Report. So the accident will have to be proved. According to them, the compensation claimed is 2 M.A.C.A.No.86/08 exorbitant and prayed for dismissal of the application. 3. Pws 1 and 2 were examined and and Exts.A1 to A11 were marked on the side of the claimant. Ext.B1 was marked on the side of the third respondent. After considering the evidence and also the police records, the tribunal came to the conclusion that the accident occurred due to the negligence of the second respondent and assessed the total compensation of Rs.64,923/- on various heads as follows: Cost of extra nourishment and wages to attendants : Rs.1,400- Medical expenses : Rs.33,943/Transportation charges : Rs.300/Loss of earnings : Rs.3,000/Pain and sufferings : Rs.6,000/Loss of amenities and happiness in life :Rs.3,000/Permanent disability : Rs.17,280/--------------Total : Rs.64,923/========= and directed the third respondent insurance company to pay the amount with 6% interest from the date of petition till payment. Dissatisfied with the quantum of compensation awarded, the present 3 M.A.C.A.No.86/08 appeal has been preferred by the appellant/claimant before the tribunal. 4. Since insurance is admitted and liability of the insurance company is not disputed, notice to respondents 1 and 2 dispensed with. Heard Sri.Shaju Purushothaman, learned counsel appearing for the appellant and Sri.P. Jacob Mathew, learned senior counsel appearing for the third respondent. 5. Learned counsel for the appellant submitted that the injured is a welder by profession, the tribunal has fixed Rs.1,500/- as his income, which is very low. Further the disability certificate proved the percentage of disability at 10%, but the tribunal had taken only 6% for awarding compensation under the head permanent disability. The amount awarded under the head pain and sufferings, loss of amenities in life etc were also on the lower side. So, according to him, the claimant is entitled to get enhancement on all heads. 6. Learned counsel for the insurance company submitted that the tribunal has awarded just and proper compensation taking into consideration the nature of injury sustained and disability and no interference is called for. 7. Since there is no appeal filed against the finding regrading negligence, we are not repeating the legality of the finding on M.A.C.A.No.86/08 4 negligence aspect. The claimant who claimed to be a welder by profession getting Rs.4,000/- per month, had not produced any document to prove his income. The accident occurred in the year 1999. The tribunal has fixed Rs.1,500/- as his income. The legislature has fixed Rs.15,000/- as annual income for a non earning member in the year 1994. We feel that Rs.2,000/- can be taken as monthly income of the injured in the absence of any evidence adduced regarding this aspect. In _**Rajesh v. Rajbir Singh** [2013(3) KLT 89 (SC)],_ the Supreme Court has held that even in the case of persons having no permanent income, future prospects will have to be taken into consideration and up to 40 years, 50% can be added to his personal income for future prospects. Though it was a case of death, the same principle has been extended in the case of personal injury also by the Apex Court in the decision reported in _**Syed Sadiq etc. v. Divisional Manager, United India Ins.Co. (AIR 2014 SC**_ _**1052).** T_ he multiplier as regards the age group of 39 as per _**Sarla Verma (Smt) and others v. Delhi Transport Corporation and another** (2009(6)SCC 121),_ will be 15 and not 16 as taken by the tribunal. Further, the disability certificate shows that he is having restriction of movements on account of the injury sustained and 10% disability was assessed by the doctor, who issued the certificate. The M.A.C.A.No.86/08 5 tribunal had taken only 6% disability. There is no reason given for reducing the disability. Considering the nature of employment, we feel that the entire disability assessed by the doctor can be taken into consideration for assessing compensation under the head loss of earning capacity as being a welder, the difficulty to knee will cause some impairment to his earning capacity. If a recalculation is made on the above basis, the appellant will be entitled to get an amount of Rs.54,000/=(2000x150%)=3000x12x15x10% instead of Rs.17,280/awarded by the tribunal under the head compensation for loss of earning capacity, thereby he will be entitled to get an additional amount of Rs.36,720/- under the head loss of earning capacity. 8. He was treated as in patient for 18 days. He could not have attended his work for at least three months. So he will be entitled to get an amount of Rs.6,000/- under the head loss of earnings instead of Rs.3,000/- awarded by the tribunal, thereby he will be entitled to get an additional amount of Rs.3,000/- under that head. The tribunal had awarded Rs.6,000/- for pain and sufferings. Considering the nature of injury sustained, we feel that it is on the lower side. We enhance the same to Rs.15,000/- from Rs.6,000/-, thereby the claimant will be entitled to get an additional amount of Rs.9,000/- under the head pain and sufferings. The tribunal had M.A.C.A.No.86/08 6 awarded only Rs.3,000/- under the head loss of amenities in life. He was aged 39 years at the time of accident. He suffered 10% disability to his knee. It may have some impact on his personal life. So we enhance the same to Rs.15,000/- instead of Rs 3,000/awarded, thereby the claimant will be entitled to an additional amount of Rs.12,000/- under the head loss of amenities in life. We are not inclined to enhance the compensation on all other heads as the amount awarded under other heads appears to be just and proper. So the appellant will be entitled to get an additional amount of Rs.60,720/- which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Three months time is granted to the insurance company to deposit the amount. The petitioner is entitled to withdraw the amount. With the above modifications of the impugned award, the appeal is allowed in part and disposed of accordingly. Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge M.A.C.A.No.86/08 7 M.A.C.A.No.86/08 8