MACA NO. 1422 OF 2012

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 ``` ## `MACA NO. 1422 OF 2012` ``` [AGAINST THE AWARD DATED 15.03.2012 MADE IN OP(MV) NO.24/2007 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA] ``` ## `APPELLANT/PETITIONER:` ``` 1* [MATHEW PHILIP, S/O.PHILIPOSE, RESIDING AT PUTHENVEETTIL HOUSE, VADAVATHOOR P.O., CHIDAMBARAM VIA, KOTTAYAM DISTRICT]* DIED **LRS OF DECEASED SOLE APPELLANT IMPLEADED AS SUPPLEMENTARY APPELLANTS 2 & 3 SUPPL.2** SUPPLEMENTARY APPELLANTS 2 AND 3 IMPLEADED RENY MATHEW W/O LATE MATHEW PHILIP,AGED 57 YEARS, RESIDING AT CRA- 64,CLUB ROAD, EDAPALLY TOLL, ERNAKULAM, PIN-682024. SUPPL.3TEMY ALISA MATHEW D/O LATE MATHEW PHILIP, AGED 29 YEARS, RESIDING AT CRA- 64, CLUB ROAD, EDAPALLY TOLL, ERNAKULAM, PIN-682024 . ( SUPPLEMENTARY APPELLANTS 2 AND 3 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 28.2.2023 IN IA 1/23 IN MACA 1422/2012 ). BY ADVS. T.C.SURESH MENON P.S.APPU JIBU P THOMAS A.R.NIMOD B.DEEPAK ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1V.ELAMARAN, S/O.VENKATACHALAM, RESIDING AT 37 RC COMPLEX, 206-261, SG MUTT ROAD, CHAMARAJPET, BANGALORE. 2R.KANNAN, S/O.RAMAN, RESIDING AT VENKATASAMUDRAM P.O., P.R.PATTY (TK), DHARMAPURI DISTRICT. 3IFFCO TOKIO GENERAL INSURANCE COMPANY FAI BUILDING, 10, SHAHEER JEET SING MARG, NEW DELHI- 110 067. ``` `MACA NO. 1422 OF 2012` 2 ``` ** LRS OF DECEASED SOLE APPELLANT IMPLEADED AS ADDITIONAL RESPONDENTS 4 & 5. ADDL.R4** ADDITIONAL RESPONDENTS 4 AND 5 IMPLEADED TEVIN PHILIP MATHEW S/O LATE MATHEW PHILIP, AGED 32 YEARS, RESIDING AT CRA-64,CLUB ROAD, EDAPALLY TOLL, ERNAKULAM, PIN- 682024 . ADDL.R5TELVIN PHILIP MATHEW S/O LATE MATHEW PHILIP, AGED 31 YEARS, RESIDING AT CRA-64,CLUB ROAD, EDAPALLY TOLL, ERNAKULAM, - 682024. ** ADDITIONAL RESPONDENTS 4 AND 5 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 28/2/2023 IN IA 1/23 IN MACA 1422/2012 ) . ``` ``` P.JACOB MATHEW - R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `MACA NO. 1422 OF 2012` 3 ## `JUDGMENT` ``` The appellant was the petitioner in OP(MV)No.24/2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. ``` ``` 2.The said claim petition was submitted by one Mathew Philip seeking compensation for the injuries sustained to him in a motor accident that occurred on 29.05.2006. ``` ``` According to him, the accident occurred when the said Mathew Philip was travelling in a Toyota Innova car; it collided with a tanker lorry bearing registration No KL-01-AC-1111, driven by the second respondent in a rash and negligent manner. The first respondent was the ``` ``` owner of the said vehicle and it was insured with the third respondent. According to the said claimant, he was 42 years old at the time of the accident with a monthly income of Rs.9,000/-. He sustained serious injuries and ``` `MACA NO. 1422 OF 2012` 4 ``` physical disablement due to the accident. The ``` ``` claim petition was submitted in such circumstances. ``` ``` 3.The first and second respondents were set exparte. The third respondent, even though entered appearance, did not submit any written statement. The said claim petition was tried along with OP(MV)No.1180/2006. ``` ``` 4.The evidence in this case consists of Exts.A1 to A18 from the side of the appellant 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 of the second respondent in driving the lorry, and being the insurer of the said vehicle, the third respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,07,812/- (Rupees one Lakh Seven Thousand ``` `MACA NO. 1422 OF 2012` 5 ``` Eight hundred and Twelve only) and the third ``` ``` respondent was directed to deposit the ``` ``` said amount along with interest @7.5% per annum from the date of petition till ``` ``` realisation. This appeal is submitted in ``` ``` such circumstances seeking enhancement of ``` ``` compensation by the claimant. During the ``` ``` pendency of the appeal, the original claimant died and the supplementary appellants 2 and ``` ``` 3, and respondents 4 and 5 were impleaded as the legal heirs of the deceased ``` ``` appellant/claimant. ``` ``` 6.Heard Adv.Sri.A.R.Nimod, the learned ``` ``` counsel appearing for the appellants and ``` ``` Adv.Sri.P.Jacob Mathew, the learned counsel appearing for the third respondent-Insurance Company. ``` ``` 7.The only dispute in this case relates to the quantum of compensation. According to the ``` ``` learned counsel for the appellant, the ``` `MACA NO. 1422 OF 2012` 6 `tribunal awarded a meagre amount in various heads. It was also pointed out that even though the Ext.A11 disability certificate was produced, no compensation was granted for the disability. The learned counsel for the third respondent would point out that the disability certificate produced by the appellant was not properly proved by examining the doctor who issued the same, and due to that reason no compensation was granted. According to the learned counsel for the third respondent, it was a probable view and therefore, no interference is warranted.` ``` 8.I have carefully gone through the records. Of course, it is true that, even though Ext.A11 disability certificate was produced, the doctor who issued the same was not examined. However, mere non-examination of ``` `MACA NO. 1422 OF 2012` 7 ``` the doctor by itself cannot be a reason to ``` ``` discard the disability certificate as such. It ``` ``` is a well-settled position of law as held by ``` ``` this court in Manikandan G. v. K.Janardhanan ``` ``` Nair & Others [2021(5)KHC 305] that, in the ``` ``` absence of any discrepancy in the medical certificate produced, it is not proper to scale down the percentage of disability as ``` ``` certified in the disability certificate. ``` ``` I have considered the contents of the Ext.A11 disability certificate in that perspective. It is seen that, in Ext.A11, a detailed ``` ``` discussion of the injuries sustained by the ``` ``` appellant is made, and it also contains the ``` ``` reasons on the basis of which the assessment has been made. The injuries extracted are as ``` ## `follows:-` ``` (i)Fracture (Lt) Patella, with Systemic Hypertusion; (ii)Fracture (Lt) Tempero Mandibular joint; (iii)Fracture (Lt) Zygoma; (iv)Fracture of Ethnoid; (v)Fracture (Rt) Temporal bone; (vi)Fracture (Lt) Orbital bone; and ``` ``` (vii)Cerebral concussion ``` `MACA NO. 1422 OF 2012` 8 ``` In this certificate, the difficulties arising ``` ``` on account of the injuries were clearly mentioned, and thereafter, the percentage of ``` ``` whole-body disability was certified as 13%. ``` ``` Considering the nature of injuries sustained ``` ``` and the difficulties which arose consequent to ``` ``` such injuries as described in Ext.A11, I do ``` ``` not find any discrepancy in the assessment ``` ``` made by the doctor in Ext.A11. Therefore, I am ``` ``` of the view that the percentage of disability mentioned therein can be accepted, as the ``` ``` probability of that extent of disability being sustained by the appellant is very high. ``` ``` 9.The next aspect relates to the monthly ``` ``` income. Even though, the learned counsel for the appellant, by placing reliance upon the ``` ``` income tax returns produced and marked before the Tribunal,would argue that, Rs.15,000/- has ``` ``` to be taken, the crucial aspect to be noted is that, the income tax returns are pertaining to ``` `MACA NO. 1422 OF 2012` 9 ``` the one assessment year alone. The monthly ``` ``` income claimed in this case was Rs.9,000/- Since the income tax return relied on by the ``` ``` learned counsel for the appellant is only for ``` ``` one assessment year, I am of the view that, taking a higher income merely based on the ``` ``` same more than what was claimed in the claim petition is not proper. It is to be noted that ``` ``` the tribunal has already accepted Rs.9,000/- which is included in this claim. In such ``` ``` circumstances, I do not find any necessity to ``` ``` take a different view as far as the monthly ``` ``` income is concerned. While assessing the ``` ``` compensation with monthly income as Rs.9,000/- ``` ``` and the percentage of disability as 13%, the compensation for disability would come to Rs.1,96,560/- (9000 x 12 x 14 x 13%). 10.In addition to the above, I am ``` ``` inclined to grant a further sum of Rs.10,000/- ``` ``` under the head of pain and suffering, as ``` `MACA NO. 1422 OF 2012` 10 ``` Rs.15,000/- already awarded by the tribunal ``` ``` under this head appears to be the lower side, considering the nature of the injuries sustained by the appellant. Similarly, taking note of the injuries and disability sustained by the appellant, a further sum of Rs.12,000/- is awarded towards the ``` ``` loss of amenities as well. Thus, the total ``` ``` compensation is determined as Rs.2,18,560/- [196560+10000+12000]. ``` ``` In the light of the above observations and ``` ``` findings, this appeal is allowed. Award dated 15.03.2012 in O.P.(MV)No.24 of 2007 is hereby modified,bygrantinganadditional ``` ``` compensation ofRs.2,18,560/- (Rupees Two ``` ``` Lakhs Eighteen thousand Five hundred and Sixty only), which shall be deposited by the 3[rd] ``` ``` respondent- Insurance Company with interest at ``` ``` the rate as ordered by the Tribunal and ``` ``` proportionate costs, within a period of three ``` `MACA NO. 1422 OF 2012` 11 `months from the date of receipt of a copy of` ``` this judgment. ``` ``` Sd/- ZIYAD RAHMAN A.A. ``` ``` JUDGE ``` ``` R.AV ```