M.A.C.A No. 18 of 2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944** **MACA NO. 18 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 388/2009 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **E.N.MURALI @ MURALEEDHARAN, AGED 28 YEARS, S/O NARAYANAN, EDAPPAL HOUSE, POOLAMADA DESOM, CHELAKKODE PO, PAZHAYANNUR, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN** ## **RESPONDENTS/RESPONDENTS:** **1 BALASUBRAMANIAN, AGED 42 YEARS S/O KRISHNANKUTTY EZHUTHASAN, KADAVANDATH HOUSE, VELLAPPARA OTTAPALAM. (DRIVER OF KL 48 5019 PICK UP VAN) * (DELETED) * THE NAME AT THE FIRST RESPONDENT IS DELETED FROM THE ARRAY OF THE RESPONDENTS AT THE RISK OF THE PETITIONER, AS PER ORDER DATED 21/11/2018 IN IA NO. 1/2018 IN MACA NO. 18/2013. 2 VINOD S/O BALAN, 259 PUNNAKKATHARAYIL HOUSE, PAZHAYANUR, THRISSUR DISTRICT OWNER KL48 5019 PICK UP VAN) 3 CHOLAMANDALAM MS. GENERAL INSURANCE COMPANY LIMITED IIND FLOOR, ACEL BUILDING, IYYATTIL JUNCTION, CHITTOOR ROAD, COCHIN AMENDMNET CARRIED OUT IA 3167/2012 DATED 27.11.2010. BY ADVS. P.JACOB MATHEW MATHEWS JACOB (SR.)** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 18 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.388/2009 on the file of Motor Accidents Claims Tribunal, Ottapalam (in short 'Tribunal'). Claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injury sustained by the appellant/claimant in a motor accident occurred on 08.12.2008 at about 7.30 pm at Pazhayannur, Kallamkulam due to hit with Tempovan bearing Registration No.KL-48-5019 while he was travelling in a motor cycle. 1[St] respondent is the driver, 2[nd] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. A total compensation of Rs.2,00,000/- has been claimed. It is alleged that the accident happened due to the rash and negligent driving of the tempovan by the 1[st] respondent. 2. Before the Tribunal, respondents 1 and 2 filed joint written statement denying all the allegations attributed against the 1[st] respondent. It is contended that the accident happened due to the rash and negligent riding of the motorcycle by the appellant/claimant himself. 3[rd] respondent filed written statement denying the negligence on the part of the 1[st] respondent. It is further contended that there is no valid policy M.A.C.A No. 18 of 2013 **3** coverage with respect to the offending vehicle. Cheque No.676067 dated 30.05.2008 of Punjab National Bank issued by the 2[nd] respondent in favour of 3[rd] respondent insurance company was dishonoured for insufficient fund. So there is no valid policy coverage with respect to the offending vehicle at the time of accident. The policy was cancelled as per letter dated 10.01.2008 and 2[nd] respondent has not paid the premium even after the cheque was dishonoured, hence their liability is denied. It is also contended that the compensation claimed under various heads are also exorbitant and excessive. 3. Appellant/claimant was examined as PW1. Exts. A1 to A12, B1 to B10 and X1 marked from the side of the appellant/claimant. On evaluating the facts and circumstances, Tribunal found that the accident happened due to the rash and negligent driving of tempovan by the 1[st] respondent. It is further found that 3[rd] respondent insurance company is not liable since there is no valid policy coverage with respect to the offending vehicle during the relevant time and respondents 1 and 2 are held liable to pay compensation to the petitioner. A total compensation of Rs.95,470/- was awarded by the Tribunal. 4. Dissatisfied with the quantum of compensation awarded by M.A.C.A No. 18 of 2013 **4** the Tribunal, the appellant/claimant (hereinafter be referred as claimant) approaches this Court in appeal for the various grounds stated in the memorandum of appeal. 1[St] respondent was subsequently deleted from the party array. Though notice was duly served to 2[nd] respondent, there is no appearance. Adv. P. Jacob Mathew, appeared on behalf of the 3[rd] respondent insurer. Lower court records were called for and perused. 5. Heard the learned counsel for the claimant as well as the learned counsel for the 3rd respondent/insurer. 6. According to the learned counsel for the claimant, he was a Bakery worker aged 28 years and his income was Rs.5,000/- per month. But Tribunal was taken his income as Rs.3,000/- per month. That is very low. It is further contended that claimant had undergone inpatient treatment for 35 days in Medical College Hospital, Thrissur and he had sustained serious injuries due to the accident. But Tribunal taken only 6% permanent disability. Ext.A7 disability certificate issued by the Doctor certifies 9.45% whole body disability. Ext.A8 disability certificate issued by the Consultant Opthalmologist certifies 25% visual loss. Hence 6% permanent disability taken by the Tribunal is very low and seeks interference in that regard. It is also contended that compensation awarded under the head of pain and suffering, loss of M.A.C.A No. 18 of 2013 **5** amenities and loss of earning power etc. is very low. 7. The learned counsel for the 3[rd] respondent/insurer on the other hand contended that insurer has been exonerated by Tribunal. It is also contended that respondents 1 and 2 had filed M.A.C.A.No.20/2012 against the award challenging the exoneration of injurer. That appeal was allowed as per the judgment dated 23.03.2013 and company was held liable. It is further admitted that there is valid policy of insurance. So in effect, there is no dispute with regard to the liability of the 3[rd] respondent. 8. First aspect is with respect to the monthly income of the injured. As stated earlier, monthly income claimed by the claimant is Rs.5,000/-. The accident was on 08.12.2008. As per **Ramachandrappa** ## **v. Manager, Royal Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236],** the monthly income claimed by the claimant, who is alleged to be a Bakery worker, is seems to be just and reasonable. Accordingly, income of the claimant is taken as **Rs.5,000/-** per month. 9. Next is with regard to the injuries sustained by the claimant. Ext.A6 is the discharge card issued from Medical College Hospital, Mulamkunnathukavu, Thrissur which would show that claimant had undergone inpatient treatment from 08.12.2008 to 12.01.2009 and M.A.C.A No. 18 of 2013 **6** injuries diagnosed are fracture shaft of femur (r), fracture (l) orbit and maxillary sinus (l), multiple abrasions, following alleged RTA. He was treated for tibial fraction followed by ORIF/4.5 DCP and bone graft on 03.01.2009. SR done on 12.01.2009. ENT, Ophtal Consultation also done. He also advised to attend Ophthalmology O.P after one month. Ext.A9 is C.T.Scan report of brain which would show that fracture lateral wall of left orbit, with proptosis of (L) eye, fracture posterolateral wall of left maxillary sinus of nasal bone with bleed in nasal sinuses. Ext.A7 is the disability certificate issued by Orthopaedic Consultant certifying 9.45% whole body disability. Ext.A8 is the disability certificate issued by Consultant Opthalmologist certifying 25% eye loss. Ext.X1 is the disability certificate issued by the Medical Board dated 08.02.2012. Report says that patient walks with a limp, Linear healed surgical scar of size 40 cm present over lateral aspect of (r) thigh, 8x4 cm scar present over (r) tibia, which has healed with secondary intention, No tenderness or oedema, Implant palpable on lateral aspect of thigh, Movements of knee joint. As per Mc Bride Scale, 6% disability has been certified. 10. Tribunal taken permanent disability at 6%. Discharge summary as well as C.T scan report reveal that claimant sustained injuries on his left eye. The learned counsel for the insurer on the other M.A.C.A No. 18 of 2013 **7** hand contended that disability certificate issued by the Medical Board is to be accepted since it has been issued subsequent to other certificate issued by the Orthopaedic Surgen as well as Opthalmologist. It is to be noted that discharge card expressly stated the disability of left eye. C.T. scan report also specifically stated that fracture lateral wall of left orbit, with proptosis of (L) eye, fracture of posterolateral wall of left maxillary sinus of nasal bone with bleed in nasal sinuses. Consultant Opthalmologist also certifies 25% visual loss to the claimant. Medical Board did not assess the disability sustained to the left eye. So, 6% disability certified by the Medical Board cannot be accepted as the actual disability sustained. Hence, I am of the considered view that 9.45% disability assessed in Ext.A7 disability certificate issued by the Orthopaedic Consultant can be accepted for computing the loss of earning power. 11. Monthly income of the claimant has already been fixed as Rs.5,000/-. He had undergone inpatient treatment for a period of 35 days. He has been examined as PW1 and deposed about the accident, injuries sustained by him and difficulties suffered due to the accident. In view of the serious nature of injuries sustained by the claimant, 4 months loss of earning taken by Tribunal can very well be approved. M.A.C.A No. 18 of 2013 **8** Refixing the amount towards loss of earning, it would come to 5,000x4=20,000/-. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.8,000/-** (20,000-12,000). 12. Towards the by stander expenses, Tribunal awarded only Rs.7,000/-. He had undergone inpatient treatment for a period of 35 days. Since the accident was in the year 2008, Rs.250/- per day can be taken towards bystander expenses. Hence under the head of bystander expenses, claimant is entitled to get 250x35=8,750. After deducting the amount already awarded, the balance would be **Rs.1,750/-** (8,7507,000). Towards extra nourishment, Tribunal awarded Rs.3,500/-. In view of the nature of injuries as well as period of treatment undergone by him, Rs.6,000/- seems to be reasonable towards extra nourishment. Deducting the amount already awarded, the balance would be **Rs.2,500/-** (6,000-3,500). Rs.18,000/- has already been awarded towards pain and suffering. In view of the nature of injuries and period of treatment as well as procedures undergone including surgery, Rs.25,000/- can be awarded towards pain and suffering. Deducting the amount already awarded, the balance would be **Rs.7,000/-** (25,00018,000). 13. Next is with respect to the compensation awarded towards M.A.C.A No. 18 of 2013 **9** loss of future earning power. The claimant was aged 32 years at the time of accident. Disability has already been fixed as 9.45%. As per Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121) approved by the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662) the suitable multiplier would be '17'. Hence towards future earning power, the claimant is entitled to get 5,000x12x17x9.45/100=96,390. Deducting the amount already awarded, the balance would be **Rs.59,670/-** (96,39036,720). In view of the nature of injuries and permanent disability suffered by him, an amount of Rs.15,000/- can be awarded towards loss of amenities. Deducting the amount already awarded, the balance would be **Rs.5,000/-** (15,000-10,000).Hence, the claimant is entitled to get enhanced compensation of Rs.83,920/(59,670+5,000+7,000+2,500+1,750+8,000) rounded to **Rs.83,950/-** . 14. In the result, appeal allowed and claimant is allowed to realize enhanced compensation of **Rs.83,950/-** (Eighty three thousand nine fifty only) in this appeal, which will carry interest at the rate of 6.5% per annum from the date of petition till realization excluding 113 days, the delay caused in filing this appeal. 3[rd] respondent/insurer is held liable. Finding to the contra made by the Tribunal is hereby set aside. M.A.C.A No. 18 of 2013 **10** 3[rd] respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest within a period of two months from the date of receipt of certified copy of this judgment. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Sd/- **M.R.ANITHA, JUDGE** rps/