MACA 3042 of 2015

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 16[TH]DAY OF DECEMBER 2022 / 25TH AGRAHAYANA,1944 ``` ## **`MACA NO. 3042 OF 2015`** ``` OPMV 300/2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA ``` ## **`APPELLANT/PETITIONER:`** ``` SHINE SHAJI, PULIMOOTIL HOUSE, KOONAMKARA PO, PERUNADU VILLAGE, RANNY TALUK. ``` ``` BY ADVS. SRI.T.K.KOSHY SRI.ABE RAJAN SRI.SABU I.KOSHY ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 3:`** - **`1 SUJEESH VIJAYAN, MOOZHICKAL HOUSE, VENKULAM, KOONAMKARA P O, R-PERUNADU, PIN-689 711.`** - **`2 ASHA,`** ``` ASHA SADANAM, MAMPARA PO, R-PERUNADU, PIN-689 711. ``` - **`3 BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, MAIN ROAD, PATHANAMTHITTA, PIN-689 645.`** ``` R3 BY SRI. JACOB MATHEW, STANDING COUNSEL R2 BY ADV.SRI.SUNIL V . MOHAMMED ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON 09.12.2022, THE COURT ON 16.12.2022 DELIVERED THE FOLLOWING: ``` MACA 3042 of 2015 2 ## **J U D G M E N T** The appellant herein is the claimant in OP(MV)No.300 of 2009 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. He is challenging the impugned award on the ground of inadequacy of compensation. 2. The appellant/claimant met with a road traffic accident on 07.09.2008, at 7.30 p.m., while he was pillion riding a motorcycle. KL-03/P-953 auto rickshaw, driven by the 1[st] respondent, in a rash and negligent manner, dashed against the motorcycle in which he was traveling, and he was thrown down and he sustained serious injuries. He was treated at various hospitals, expending huge amounts. He suffered permanent disability also, on account of the injuries suffered. He approached the Tribunal claiming compensation of Rs.3,00,250/and the Tribunal awarded Rs.2,99,622/-. Aggrieved by the award, he has come up with this appeal. 3. The 1[st] respondent was the driver of the offending auto rickshaw, the 2[nd] respondent was its owner and the 3[rd] respondent was its Insurer. The accident, injuries and policy of the offending vehicle are not in dispute. 4. Before the Tribunal, no oral evidence was adduced from either side. Exts. A1 to A9 were marked from the side of the appellant/claimant. MACA 3042 of 2015 3 5. Now let us see whether any interference is warranted in the quantum of compensation awarded by the Tribunal . 6. According to the appellant, he was a 21 year old painting worker, earning monthly income of Rs.8,000/- as on the date of accident. No evidence was adduced to prove his job or income. Even then, the learned Tribunal fixed his notional income @ Rs.5,000/- per month and loss of earning was calculated for six months. In Ext.A5 Wound Certificate, his age is mentioned as 19 years. In Ext.A7 Disability Certificate also his age is shown as 19 years. So the age and occupation stated by the appellant/claimant in the claim petition is somewhat dubious. Even then, since he is stated to be a painting worker by profession, and he was a man of majority age, this Court is inclined to fix his notional income at Rs.7,000/- per month, even exceeding the standard set up by the Apex Court in the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , since painting work is regarded as a skilled labour. At the rate of Rs.7,000/- per month for a period of six months, he is eligible to get Rs.42,000/towards loss of earning. He was already awarded Rs.30,000/- under the head loss of earning and so he is entitled to get the balance Rs.12,000/- as enhanced compensation towards loss of earning. 7. The learned Tribunal awarded only Rs.2,000/- towards MACA 3042 of 2015 4 transportation to hospital. Exts.A8 and A9 medical bills and prescriptions will show that he was treated at various hospitals on various occasions, including Amrita Institute of Medical Sciences And Research Centre, Cochin. The appellant belongs to Perunadu Village, Ranny Taluk, Pathanamthitta and considering the distance and the expenses for transportation, this Court is inclined to award Rs.8,000/more towards transportation expenses. 8. Towards extra nourishment, he was awarded Rs.2,000/- by the Tribunal. His injuries were on the face, including fracture of left maxillary sinus and zygoma. Moreover, there was fracture of left ORBIT-floor. Ext. A7, Disability Certificate also shows that he was unable to chew hard food. So this Court is inclined to award Rs.3,000/- more towards extra nourishment. 9. Towards bystander expenses, he was awarded only Rs.2,000/-. He was hospitalised for more than 30 days, and so this Court is inclined to award Rs.3,000/more towards bystander expenses. 10. Towards pain and suffering, the Tribunal awarded only Rs.15,000/-. Considering the nature of injuries suffered and the period of hospitalisation, this Court is inclined to award Rs.5,000/- more under the head ‘pain and suffering’. 11. Towards compensation for loss of earning capacity, Ext.A7 MACA 3042 of 2015 5 Disability Certificate was to the effect that he had suffered permanent disability of 18%. But the learned Tribunal took only 15% of disability to assess the compensation. Pending appeal, the appellant produced a certificate of disability issued from General Hospital, Pathanamthitta, to show that he had suffered 30% disability to his left eye, due to Traumatic Retinal Detachment. That was not a Certificate obtained at the intervention of the Court. It was seen issued as per guidelines S076(E) dated 05.01.2018 Government of India based on RPWD Act, 2016 and RPWD Act Rules, 2017. Though it was an original certificate signed by the Doctors of the Medical Board, it is seen certified as a true copy by a Notary Public, for reasons best known to the claimant. Even if we go by that Certificate, there is nothing to show that he completely lost vision of left eye so as to attract the percentage of loss of earning capacity for Serial No.[26] shown in Part II of Schedule I of the Employee’s Compensation Act, 1923. The Disability Certificate now produced by the appellant is to the effect that he had blindness of 30% in his left eye due to Traumatic Retinal Detachment. So he is not eligible to get his loss of earning capacity assessed in accordance with Serial No.[26] shown in Part II of Schedule I of the Employee’s Compensation Act, 1923. 12. According to the appellant, since he was a painting worker, due to the Traumatic Retinal Detachment, he is not able to do any job. MACA 3042 of 2015 6 But Ext.A9 series prescriptions of the year 2012 last sheet will show that the Post Traumatic CCF with sudden congestion in the left eye might have been due to dust from tiles. That itself will show that after the accident in the year of 2008, he was going for work. Since there is no blindness for the left eye in full, and it is reported as 30% only, this Court is not inclined to accept the additional document, produced by the appellant, as Annexures A and B, to find his permanent whole body disability as 30%. But, since Ext.A7 Disability Certificate shows that he had suffered 18% permanent disability and it was issued by the Standing Disability Assessment Board of General Hospital, Pathanamthitta on 23.6.2009, i.e., after about nine months of the accident, this Court is inclined to accept the percentage of disability mentioned in Ext.A7, as such. 13. We have fixed his notional income @ Rs.7,000/- per month. The multiplier applicable is 18 as he was aged only 21 years, as stated by the claimant at the time of accident. So, the compensation for permanent disability can be assessed as Rs.2,72,160/(7000x12x18x18/100). He was already paid Rs.1,62,000/- under the head compensation for permanent disability/loss of earning capacity. After deducting the same, he is eligible to get Rs.1,10,160/-. 14. Towards loss of amenities, the Tribunal awarded Rs.10,000/-. Since he had suffered 18% permanent disability, this MACA 3042 of 2015 7 Court is inclined to award Rs.15,000/- more towards loss of amenities. 15. The compensation awarded under all other heads seems to be reasonable and it need not be interfered with. |Head of claim|Amount<br>awarded by the<br>Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.30,000/-|Rs.42,000/-|Rs.12,000/-| |Transportation to<br>hospital|Rs.2,000/-|Rs.10,000/-|Rs.8,000/-| |Extra nourishment|Rs.2,000/-|Rs.5,000/-|Rs.3,000/-| |Bystander<br>expenses|Rs.2,000/-|Rs.5,000/-|Rs.3,000/-| |Pain and suffering|Rs.15,000/-|Rs.20,000/-|Rs.5,000/-| |Permanent<br>disability/loss of<br>earning capacity|Rs.1,62,000/-|Rs.2,72,160/-|Rs.1,10,160/-| |Loss of amenities|Rs.10,000/-|Rs.25,000/-|Rs.15,000/-| |Total|||Rs.1,56,160 /-| 16. In the result, the appellant is entitled to get enhanced compensation of Rs.1,56,160/(12,000 + 8,000 + 3,000 + 3,000+ 5,000 + 1,10,160 + 15,000) (Rupees One Lakh Fifty Six Thousand One Hundred and Sixty only). 17. The 3[rd] respondent is directed to deposit the enhanced compensation in the Bank account of the appellant with interest at the MACA 3042 of 2015 8 rate of 9% per annum from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/14.12.2022 MACA 3042 of 2015 9 ## **`APPENDIX OF MACA NO.3042 OF 2015`** ## **`APPELLANT'S ANNEXURES :`** ## **`ANNEXURE-A`** ``` REFERRAL OP CARD FROM THE REGIONAL INSTITUTE OF OPHTHALMOLOGY, TRIVANDRUM DATED 13.02.2012. ``` ## **`ANNEXURE-B`** ``` THE NOTARIZED TRUE COPY OF THE CERTIFICATE OF DISABILITY ISSUED BY THE MEDICAL BOARD OF THE GENERAL HOSPITAL, PATHANAMTHITTA BEARING NO.13-2021. ``` ## **`RESPONDENTS' EXHIBITS : NIL`**