MACA NO. 1803 OF 2012

``` MACA NO. 1803 OF 2012 ``` -1- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022/4TH AGRAHAYANA, 1944 ``` ``` M.A.C.A. NO.1803OF 2012 ``` ``` (AGAINST THE AWARD IN OP(MV)135/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA) ``` ## **`APPELLANT/PETITIONER:`** ``` PURUSHOTHAMAN M.S, AGED 34 YEARS, S/O.M.K.SASIDHARAN, MARTHAMKANDY HOUSE, NEDUNILAM, MANIYANKODE POST, WAYANAD DISTRICT. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENT/RESPONDENT No.3:`** ``` THE BRANCH MANAGER, NEW INDIA ASSURANCE CO.LTD., M.G.T.BUILDINGS, KALPETTA NORTH, WAYANAD-673 121. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1803 OF 2012 ``` -2- ## JUDGMENT _(Dated : 25[th] November 2022)_ The appellant is the petitioner in O.P.(MV)No.135/2007 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The appeal is filed claiming enhancement of compensation. 2. Brief facts of the case are as follows: On 11.12.2006 at about 3 .30 pm while the petitioner was riding a motorcycle bearing Reg.No.KL-12C/6614 through the public road from Kottathara to Kalpetta and when he reached Nedunilam, another bike bearing Reg.No.KL-12/2312 ridden by the 1[st] respondent came from the opposite direction in a rash and negligent manner and hit the bike in which the petitioner was travelling. As a result of the impact, the petitioner sustained serious injuries. He claimed Rs.1,00,000/from the ``` MACA NO. 1803 OF 2012 ``` -3- respondents. 3. Respondents 1 and 2 filed separate written statements. The rash and negligence attributed to the first respondent were denied. It was contended that the motorcycle was insured with the third respondent and if any compensation is ordered it has to be realised from the third respondent. The third respondent filed a written statement admitting the insurance policy of the bike bearing Reg. No.KL12/2312, but he contended that the accident took place solely due to rash and negligent driving on the part of the petitioner himself and that the compensation claimed was excessive and prayed for dismissal of the application. 4. The Tribunal on examination of Exts.A 1 to 8 and C1 and on appreciation of the facts and circumstances of the case, awarded a total compensation of Rs.66,300/- together with ``` MACA NO. 1803 OF 2012 ``` -4- 7.5% interest from the date of claim till the date of payment. Aggrieved by the award of compensation under various heads, this appeal is filed. 5. Before the Tribunal Exts.A1 to A8 were produced and marked Ext.C1 disability certificate dated 25.3.2012 issued by the District Hospital, Mananthavady. The Medical Board assessed the disability of the appellant based on Mc-Bride Scale as under 5% and as per NIOH Scale as 23%. The Tribunal had taken the disability fixed by the Medical Board under the Mc Bride Scale and taking the income as Rs.3,000/-, awarded a compensation of Rs.30,600/- towards permanent disability. The counsel for the appellant submits that the Tribunal ought to have taken the disability assessed under the NIOH scale, which is 23% as it relates to the disability to a limb and the appellant being the loading worker the disability ought to have ``` MACA NO. 1803 OF 2012 ``` -5- fixed as 23% on the basis of the disability of a particular limb. 6. The Medical Board has issued a 5% whole-body disability certificate and the injuries sustained are: (i) volar barton left wrist, (ii) Displaced fracture 5[th] metacarpal left, proximal phalanx of left 3[rd] and 4[th] finger and dislocation proximal interphalangial joint 5[th] finger left. The Tribunal had seen the appellant in person and the Tribunal was convinced that the disability was assessed under the Medical Board based on Mc.Bride Scale. I do not find any reason to deviate from the reasoning of the Tribunal and the Tribunal was justified in taking the disability as 5% for the compensation for permanent disability. 7. As regards the income of the appellant, the appellant claimed Rs.6,000/- as monthly income in the absence of any evidence, but the Tribunal has notionally fixed it as Rs.3,000/-. Going by the decision of _Ramachandrappa v._ ``` MACA NO. 1803 OF 2012 ``` -6- _Manager, Royal Sundaram Alliance Insurance Co. Ltd. [(2011)_ _13 SCC 236]_ , in an accident that happened in the year 2006, the monthly income can be taken as Rs.5,500/- per month. The multiplier taken is correct, as the appellant was aged 29 years at the time of the accident. Taking Rs.5,500/- per month and permanent disability compensation can be calculated as 5500x12x17x5/100 = 56,100/-. When the income is taken as Rs.5,500/- per month, loss of earnings can be worked out as Rs.5,500 x 3 = Rs.16,500/-. 8. Towards pain and suffering, the Tribunal has awarded only Rs.10,000/- as against the claim of Rs.50,000/-. Considering the injuries sustained by the appellant, including the permanent disability assessed by the Medical Board, compensation for pain and suffering is enhanced to another sum of Rs.10,000/-. ``` MACA NO. 1803 OF 2012 ``` -7- ## Accordingly, the following enhancements are made to ## the award passed by the Tribunal: ||||| |---|---|---|---| |_Sl. No._|_Head of Claim_|_Amt. Awarded by_<br>_Tribunal (Rs.)_|_Amt. Awarded in_<br>_appeal (Rs.)_| |_1._|_Compensation for loss_<br>_of_<br>_permanent_<br>_disability_|_30,600/-_|_56,100/-_| |_2._|_For loss of earning_|_9,000/-_|_16,500/-_| |_3._|_For pain and suffering_|_10,000/-_|_20,000/-_| ||_Total_|_49,600/-_|_92,600/-_| ||_Amount enhanced is: 92,600 -49,600 = 43,000 /-_||| In the result, the appeal is allowed with an enhanced compensation of Rs.43,000/- (Rupees Forty three thousand only) with 7.5% interest per annum from the date of petition till reasliation. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The appellants shall produce the ``` MACA NO. 1803 OF 2012 ``` -8- details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. Appeal allowed as above. _Sd/-_ **BASANT BALAJI, JUDGE** ss