K.V. Narayanan v. K.M. Kunhappan and The Branch Manager, National Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY,THE 14[TH] DAY OF DECEMBER 2023/23RD AGRAHAYANA,1945 ``` ``` MACA NO. 2589 OF 2014 ``` ``` OP(MV) 527/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`THALASSERY`** ## **`APPELLANT/PETITIONER:`** ``` K.V.NARAYANAN AGED 56 YEARS S/O.AMBU, KUNDUVALAPPIL HOUSE, ALAKKAD, ``` ``` P.O. MATHIL, TALIPARAMBA TALUK, KANNUR DISTRICT. ``` ``` BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.M.M.ANTO SRI.GEORGE MATHEWS ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.M.KUNHAPPAN S/O.GOVINDAN NAMBEESAN, ``` ``` KIZHAKKE MADATHIL HOUSE, ARAVANCHAL ``` ``` P.O.ARAVANCHAL, TALIPARAMBA TALUK, ``` ``` KANNUR DISTRICT-670 141. ``` ``` 2THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD, BRANCH OFFICE, PAYYANNUR, P.O.PAYYANNUR, KANNUR DISTRICT-670 307. ``` ``` BY ADVS. SRI.A.A.MOHAMMED NAZIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2589/2014 : 2 : ## JUDGMENT The appellant was the petitioner in OP(MV) No.527/2006 on the files of the Motor Accident Claims Tribunal, Thalassery. 2. The aforesaid claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 10.09.2005. According to him, the accident occurred when he was travelling as a pillion rider on a motorcycle bearing registration No.KL-13L/2414, collided with a jeep bearing registration No.KL-11B/9199, driven by the 1st respondent in a rash and negligent manner. The 1[st] respondent was also the owner of the said jeep and it was insured with the 2nd respondent. Due to the impact of the accident, he sustained serious injuries and it resulted in physical disablement as well. According to him, he was a toddy tapper with a monthly income of Rs.6,000/-. The claim petition was submitted in such circumstances seeking compensation. 3. The 2nd respondent alone contested the matter by filing a written statement. However, they admitted the coverage of the policy for the said vehicle but disputed the liability on various M.A.C.A. No.2589/2014 : 3 : grounds. The quantum of compensation was also seriously disputed by them. 4. The evidence in this case consists of Exts.A1 to A10 from the side of the appellants and no evidence was adduced from the side of the respondents. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1 st respondent and being the insurer of the vehicle, the 2nd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,60,300/- and the said amount was directed to be deposited by the 2nd respondent with interest at the rate of 8% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellant seeking enhancement of compensation. 6. Heard Sri. M.M. Anto, the learned counsel appearing for the appellant and Sri. Mohammed Nazir, the learned counsel appearing for the 2nd respondent. 7. The only dispute in this case relates to the quantum of compensation. It was specifically contended that, even though very serious injuries were sustained by the appellant, which resulted in physical disablement that compelled him to discontinue his M.A.C.A. No.2589/2014 : 4 : avocation of toddy tapper, no amount was granted towards disability. Besides the same, it was also pointed out that the monthly income taken by the tribunal was Rs.3,000/- which was grossly inadequate. 8. After considering the materials placed on record, I find force in the said contention. From Exts.A2 and A3 it can be seen that the appellant sustained the following injuries: (1) open wound over left leg. (2) fracture of tibia and fibula. In paragraph 13 of the award, it is observed by the tribunal that on 23.09.2013, i.e., after eight years of accident, the appellant appeared before the tribunal. On examination, it was found that the left leg of the petitioner was disfigured, and there was continuous bleeding therefrom. The tribunal was also convinced that the appellant was not in a position to continue the toddy tapping work as it was not be possible for him to climb the tree with such an injury, which is yet to be healed. The learned counsel asserts that, even now, the said injury remains unhealed, and he is undergoing treatment for the same. The medical records also indicate that he had undergone treatment in Pariyaram Medical College Hospital as well as Unity Health Complex, Mangalore, and the total period of M.A.C.A. No.2589/2014 : 5 : inpatient treatment extends 92 days in various spells. The learned counsel also made available the photographs of the injuries, which would show disfigurement of the left leg and unhealed injuries sustained by him. When all the aforesaid aspects are taken into consideration, it appears that this is a case in which some amount has to be granted towards physical disability. Of course, it is true that no certificate evidencing the physical disability was produced by the appellant. But the observations made in paragraph 13 of the award, the photographs made available before this Court would clearly indicate that the injury which he suffered, including the unhealed wounds on the left leg, would certainly cause difficulties for him in climbing the coconut tree for the purpose of toddy tapping. Therefore, taking note of the nature of injuries and the impact of such injuries that have caused on his avocation, I am inclined to grant some compensation for loss of earning capacity owing to physical disability. In the facts and circumstances of the case, in the absence of any other evidence, I deem it appropriate to fix it as 10%. 9. The next aspect relates to the monthly income of the appellant. The learned counsel places reliance upon Ext.A5, which M.A.C.A. No.2589/2014 : 6 : is a receipt issued by the Toddy Welfare Society to substantiate the contention that he was a toddy tapper. In the light of the aforesaid document, I have no reason to discard the said contention raised. The monthly income claimed was Rs.6,000/-. If the method of computation of monthly income evolved from the principles laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], is adopted even in the absence of any evidence, the monthly income of an ordinary worker without any skills could be fixed as Rs.5,000/for the year 2005. In this case, there is some evidence to show that he was a toddy tapper, which is a skilled employment providing regular income. Therefore, a slightly higher amount can be fixed as the monthly income, and in such circumstances, I find Rs.6,000/claimed by the appellant to be a reasonable figure that can be accepted. It is ordered accordingly. Thus, while reassessing the compensation with the disability of 10% as referred to above and taking the monthly income as Rs.6,000/-, the amount of compensation for loss of disability would come to Rs.93,600/- (6000 x 12 x 13 x 10/100). M.A.C.A. No.2589/2014 : 7 : 10. Consequent to the revision of monthly income, the appellant would be entitled to a further sum of Rs.24,000/- under the head of loss of earnings. It is to be noted that the amount already awarded by the tribunal is for eight months,for computation of the compensation, and the said period is appears to be reasonable. When moving on to the other heads, taking into account the serious nature of the injuries, the period of inpatient treatment he had undergone and also considering that he is even now undergoing treatment for the unhealed injuries, I deem it appropriate to grant a further sum of Rs.10,000/- under the head of pain and sufferings. 11. The learned counsel further points out that the amount awarded towards transportation was on the lower side. It was pointed out that he was compelled to avail medical treatment at Pariyaram Medical College and also at Unity Health Complex Mangalore on various occasions. The appellant is a resident of Taliparamba. Considering the fact that he was forced to avail treatment from Mangalore on several occasions, I deem it appropriate to grant a further sum of Rs.2,000/- under the head of transportation. Another head, which is highlighted by the learned counsel, is future treatment. The learned counsel asserts that even M.A.C.A. No.2589/2014 : 8 : now, he is compelled to avail treatment for the unhealed injury. The said fact is evident from the observations made by the tribunal in paragraph 13 of the award as it was specifically observed that, even on 23.09.2013, i.e., eight years after the accident, when the appellant appeared before the tribunal, the injury was unhealed and there was continuous bleeding from the injury. This substantiates the contention raised by the appellant, as regards the necessity of some amount towards future treatment as well. Considering the materials placed on record, I am inclined to grant a sum of Rs.10,000/- under the said head. Thus, the total additional compensation is determined as Rs.1,39,600/- [93600+24000+ 10000+2000+10000]. In the light of the aforesaid observations and findings this appeal is allowed. The award dated 16.12.2013 in O.P.(M.V.) No.527/2006 passed by the Motor Accident Claims Tribunal, Thalassery is hereby modified by granting an additional compensation for Rs.1,39,600/- (Rupees one lakh thirty nine thousand and six hundred only). Out of the said amount Rs.1,29,600/- shall be recoverable by the appellant with interest at 8% per annum from the date of petition till realisation with M.A.C.A. No.2589/2014 : 9 : proportionate cost from the date of claim petition till realosation. The remaining amount of Rs.10,000/- shall be recoverable by the appellant from the respondents with interest at the rate referred to above, from the date of award passed by the Tribunal. The said amounts shall be deposited by the 2nd respondent with proportionate cost, within a period of three months from the date of receipt of a copy of the judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd