MACA 66/13 (Against the Award dated 08.05.2006 in OP(MV) No.1034/2002, Motor Accidents Claims Tribunal, Muvattupuzha, Kerala High Court)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944`** ## **`MACA NO. 66 OF 2013`** # **`AGAINST THE AWARD DATED 08.05.2006 IN OP(MV) NO.1034/2002 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA`** ## **`APPELLANTS:`** - `1 VIJAYAN, S/O KUTTAPPAN, MANJAKUNNEL HOSUE, KOOTTAR KARA, KARUNAPURAM VILLAGE. (DIED, LEGAL HEIRS IMPLEADED)` - `2 LEELAMMA, AGED 68 YEARS, W/O. LATE VIJAYAN, MANJAKKUNNEL HOUSE, KUZHITHOLU (P.O), IDUKKI DISTRICT, PIN-685 552.` - `3 SHAJI, AGED 48 YEARS, S/O. LATE VIJAYAN, MANJAKKUNNEL HOUSE, KUZHITHOLU (P.O), IDUKKI DISTRICT, PIN-685 552.` - `4 USHA, AGED 43 YEARS, D/O. LATE VIJAYAN, MANJAKKUNNEL HOUSE, KUZHITHOLU (P.O), IDUKKI DISTRICT, PIN-685 552.` - `5 SANTHOSH, AGED 41 YEARS, S/O. LATE VIJAYAN, MANJAKKUNNEL HOUSE, KUZHITHOLU (P.O), IDUKKI DISTRICT, PIN-685 552.` - `(ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE ORIGINAL APPELLANT AS PER ORDER DATED 21.07.2022 IN IA 1/2022)` ``` BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P G.RAJAGOPAL (KUMMANAM) ``` ## **`RESPONDENTS:`** ``` 1BABU, S/O VISWAMBARN, VAZHEPPARAMBIL HOUSE, HOUSE NO.357/W.NO.XII, THEATREPPADY BHAGOM, KOOTTAR, KARUNPURAM VILLAGE, PIN:685 552. ``` MACA 66/13 2 ``` 2S.SAJI, ERUPPUMKAL, THAZHAM (P.O), MALAYALAPUZHA, PIN:686 666. 3MS. UNITED INDIA INSURANCE COMPANY LIMITED DAIVASAHAYAM BUILDING, K.K.ROAD,PONKUNNAM, PIN:686 506. 4P.P.VARGHESE, PALAYEKKEL HOUSE, PIRAVOM, PIN:686 664. BY ADVS. SMT.D.GEETHA SMT.K.SHERIN MOHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 66/13 3 ## **`JUDGMENT`** This matter is of the year 2013 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore admit this Appeal and proceed to dispose it of finally, with the consent of both sides. 2. The original appellant – Late Vijayan - filed OP(MV)No.1034/2002 before the Motor Accidents Claims Tribunal, Muvattupuzha (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation for the injuries, which he suffered in a road accident on 15.11.2001, when the jeep in which he was travelling was collided by the offending vehicle driven in a rash and negligent manner. Though the original appellant had claimed Rs.2,31,000/- towards compensation, the learned Tribunal has awarded only Rs.1,16,271/-; thus constraining him to file this Appeal assailing the same as being inadequate. 3. Pending this lis, the original appellant died and his legal MACA 66/13 4 heirs have come on record as additional appellants 2 to 5. 4. Sri.R.Bindu Sasthamangalam – learned counsel for the appellants, argued that, one of the reasons why the compensation awarded by the Tribunal is so low, is because it has incorrectly reckoned the notional income of the original appellant - for the purpose of ‘Loss of Earnings’ as also for ‘Disability’ - as only Rs.1,500/-, though he had claimed Rs.2,500/-, being a casual labourer, earning that and much more. He argued that the compensation awarded by the Tribunal under various other heads, including ‘Pain and Suffering’ and ‘Loss of Amenities’, is also extremely low, going by the injuries sustained and the sufferings endured by his client. 5. In response, Smt.Sherin Mohan – learned Standing Counsel appearing for the Insurance Company, argued that the compensation awarded by the Tribunal is without error and thus prayed that this Appeal be dismissed. 6. I have considered the afore rival contentions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, MACA 66/13 5 with the express consent that it can be acted upon by this Court without dispute. 7. On the question of notional income of the original appellant, it is without doubt, as has been correctly found by the learned Tribunal, that there was no evidence led by him to prove that he was earning Rs.2,500/- per month. In Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the notional income of a person, whose income is unascertainable or in the case of a ‘Coolie’, the minimum figure to be reckoned in the year 2004 was Rs.4,500/-. Reducing Rs.500/incrementally, the income reckonable in the year 2001 could be safely taken as Rs.3,000/-, even in the case of such a person. I fail to understand why the Tribunal could not have granted that figure in favour the original appellant. 8. That said, the medical evidence on record particularly, Ext.A4 – which is the Wound Certificate issued by the ‘Karuna was Hospital’, Nedumkandom, shows that the original appellant ‘ admitted with comminuted Grade II compound fracture both bones (tibia and fibula) left leg lower 1/3. Distal fragment of tibia was MACA 66/13 6 protruding outside about 7 cm through a lacerated wound on the out surface of the left leg. The wound and the muscles were badly crushed and contaminated with mud and decayed organic matters. The narrow cavity of the fractured bone ends were filled with mud. X-ray also confirmed compound comminuted fracture of both bones (sic). 9. The other records, including Ext.A7 – Discharge Summary indicate that the original appellant had to undergo treatment, including with blood transfusion, with 105 days of hospitalisation as an ‘in-patient’. Ext.A17 – Disability Certificate graphically shows the problems faced by him as under: 1. Limbing left side 2. 3.5 cm shortening of left lower limb below knee level. rd 3. Multiple deressed scars around lower 3 left leg with discharging wound. 4. 3 cm waisting of left thigh muscles. 5. 2 cm waisting of left calf muscles. 6. 20 degree limitation of flexion of left knee joint. 7. No movements of left ankle joint. 8. Dorsiflexion of all jaws not possible 9. Sitting on the ground in squatting position not possible. 10. The Tribunal, however, has not accepted Ext.A17 – Disability Certificate in its toto because, it found that it has been MACA 66/13 7 issued by a Doctor, whose testimony as PW1 was to the effect that the 2 cm gap in the original appellant’s fibula would not cause any disability and that this could have happened on account of the old age also. It also notice that the Doctor did not offer a ‘split up’ of the disability shown in the certificate; and thus adopted the percentile of 14, as the permanent disability of the original appellant. 11. When one examines the injuries sustained by the original appellant and the uncontroverted problems which he was facing, juxtaposed by the fact that he had to suffer nearly 105 days of ‘in-patient’ treatment, I am of the firm view that the compensation awarded under the heads ‘Pain and Suffering’ and ‘Loss of Amenities’ should be increased marginally. I propose it to be Rs.35,000/- and Rs.25,000/- respectively. 12. As regards the percentile of permanent disability, for the same reasons I have said above, am of the view that it should be reckoned to a minimum of 16%, taking note of the 20% disability certified in Ext.A17. In the afore circumstances, this Appeal is partly allowed with MACA 66/13 8 the following directions: a) The compensation for disability is enhanced to Rs.74,880/-, from Rs.32,760/-, reckoning the notional income of the original appellant to be Rs.3,000/- per month and his percentile of disability to be 16%. b) Axiomatically, the compensation under the head ‘Loss of Earnings’ is enhanced to Rs.27,000/-, reckoning the notional income to be Rs.3,000/-. c) The compensation under the head ‘Pain and Suffering’ is enhanced to Rs.35,000/-, from Rs.20,000/- now awarded by the Tribunal. d) The compensation under the head ‘Loss of Amenities’ is enhanced to Rs.25,000/-, from Rs.12,000/-. e) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, the appellants will be at liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. They will MACA 66/13 9 also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ``` ACR/RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```