K.Y. Johny v. P.P. Unnikrishnan and Others

MACA.No.46/2013 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945_ ## _MACA NO. 46 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 339/2006 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL ,PERUMBAVOOR_ ## _APPELLANT/PETITIONER:_ ## _K.Y.JOHNY,_ _S/O.JACOB, KANIYADAN HOSUE, PRALAYOLLADI LARA, THURUTHY P.O, VENGOOR VILLAGE, KUNNATHUNADU TALUK._ _BY ADV.SRI.P.THOMAS GEEVERGHESE_ ## _RESPONDENTS/RESPONDENTS:_ - _1 P.P.UNNIKRISHNAN,_ - _S/O.KORU, THIRUMALIL HOUSE, NEAR NSS HIGH SCHOOL, VALAYANCHIRANGARA P.O, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK._ - _2 C.U.ZEENATH,_ - _W/O.NAZEER, KARIPPAI HOUSE, THAIKKATTUKARA ALUVA-6._ - _3 NATIONAL INSURANCE COMPANY LTD., SHRIRAM SITE OFFICE, 2A, PRAKASAN ROAD, T.NAGAR, CHENNAI 600 017._ - _4 K.P.RAJAN, S/O.PARAMESHWARAN NAMBOODIRI, KOZHIPPILLI MANA, VENGOLA, PERUMBAVOOR._ - _5 JOHN VICTOR C.PAUL S/O.JOHN PAUL, 21/501A, KACHAPPILLY ROAD, VYTTILA, ERNAKULAM._ MACA.No.46/2013 2 - _6 UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, TRIPUNITHURA._ _BY ADV SRI.A.R.GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.46/2013 3 ## **JUDGMENT** The appellant was the petitioner in O.P.(M.V.) No.339/2006 on the files of the Motor Accident Claims Tribunal, Perumbavoor. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 19.07.2005. 2. According to him, the accident occurred when he was travelling as a passenger in a Maruti car driven by the 4[th] respondent; it collided with a stage carriage bearing registration No.KL-7 AK 1459 driven by the 1[st] respondent. The 2[nd] respondent was the owner of the said bus and it was insured with the 3[rd] respondent. The 5[th] respondent was the owner of the car and it was insured with the 6[th] respondent. According to him, he was 35 years old at the time of the accident and was a driver by profession with a monthly income of Rs.5,000/-. It was also contended that consequent to the accident, he sustained serious injuries which resulted in physical disablement. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent/insurer of the bus filed a written statement admitting the coverage of policy for the said vehicle, but MACA.No.46/2013 4 negligence on the part of the 1[st] respondent was denied. They disputed the quantum of compensation as well. Similarly, the 6[th] respondent, the insurer of the car in which the appellant was travelling, filed a written statement admitting the coverage of policy, but they denied negligence on the part of the 4[th] respondent in driving the said vehicle. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of the oral testimony of PW1 and as documentary evidence of Exts.A1 to A13 were marked. The disability certificate of the appellant was marked as Ext.X1. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1[st] respondent in driving the bus and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. Respondents 4 to 7 in the claim petitions were exonerated from the liability. The quantum of compensation was fixed as Rs.1,88,193/- and the said amount was directed to be deposited with interest at the rate of 8% per annum from the date of petition till realization with proportionate costs. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. MACA.No.46/2013 5 5. Heard Sri.P.Thomas Geeverghese, learned counsel for the appellant and Sri.A.R.George, learned counsel for the 3[rd] respondent Insurance Company. 6. The only challenge in this case relates to the quantum of compensation. The specific contention of the appellant is that, the amount awarded by the Tribunal under various heads, particularly under the head of disability was grossly inadequate. Even though the learned counsel for the 3[rd] respondent opposed the same, on examination of the documents produced, I find force in the contention of the appellant. The first aspect in this regard is the monthly income fixed by the Tribunal, which was Rs.3,500/-. The accident in this case occurred in the year 2005, and according to the appellant, he was earning an amount of Rs.5,000/- from his employment as a driver. It is true that there are no convincing reasons showing the monthly income which he used to get from his employment but it is a fact that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd .[2011** **(13) SCC 236]** the Honourable Supreme Court was pleased to take the monthly income of an ordinary unskilled worker as Rs.4,500/- for an accident in the year 2004, even in the absence of any evidence. Therefore, I am of the view that the said monthly MACA.No.46/2013 6 income of Rs.5,000/- claimed by the appellant for the year 2005 cannot be treated as unreasonable and hence the same is accepted. The other parameters adopted by the Tribunal for assessing the compensation for disability are found to be reasonable and the same can be retained. Thus, when the compensation for loss of disability is re-worked with the revised monthly income, it would come to Rs.1,53,600/[5000x12x16x16/100]. The amount already awarded by the Tribunal is Rs.1,07,520/- and thus, the additional amount would come to Rs.46,080/-. 7. The next aspect to be considered is the loss of earnings. It is evident from the records that immediately after the accident, the appellant was admitted to the hospital. Ext.A9 is the treatment certificate, which would show that the petitioner was treated as an inpatient in that hospital for the period from 19.07.2005 to 26.07.2005. It is further mentioned that the wound debridement and K-wire fixation were done. The POP slab was applied, and the petitioner was treated with supportive measures and discharged on 26.07.2005. Again, he was admitted on 12.09.2005 as there was non-union of the 3rd metacarpal. Bone grafting and K-wire fixation were done. After giving supportive treatment, he was discharged MACA.No.46/2013 7 on 17.09.2005. Structures were removed, and POP cast was applied on 29.09.2005. Later, POP slabs were removed on 14.11.2005. Thus, the treatment details would indicate that even though the inpatient treatment was limited, his treatment lasted for several months. Considering the nature of the injuries and the treatment availed in all probabilities, he must have prevented from pursuing his avocation as a driver for at least a period of five months. The Tribunal has awarded compensation for only four months towards loss of earnings. Therefore, compensation at the rate of Rs.5,000/- for a period of five months can be granted under the head of loss of earnings. This would result in an additional amount of Rs.11,000/- [(5000x5)-24000)]. Towards pain and suffering, the amount awarded by the Tribunal was Rs.16,000/only, which appears to be on the lower side when considering the nature of injuries and the treatments availed by him, which are referred to above. Therefore, a further sum of Rs.9,000/- is awarded under the said head. Considering the nature of injuries and the disability arising therefrom, a further sum of Rs.7,000/- is awarded under the head of loss of amenities, as the amount of Rs.8,000/- already awarded by the Tribunal appears to be on the MACA.No.46/2013 8 lower side. Thus, the total additional compensation is determined as Rs.73,080/- [46080+11000+9000+7000]. In the result, this appeal is allowed. Award dated 21.06.2012 passed by the Motor Accidents Claims Tribunal, Perumbavoor is hereby modified by granting an additional compensation of Rs.73,080/- (Rupees seventy three thousand and eighty only) and the said amount shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/2.2.24