MACA No. 1833 of 2008

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 23RD DAY OF AUGUST 2013/1ST BHADRA, 1935** ## **MACA.No. 1833 of 2008 ( )** **-------------------------OP(MV) 634/1998 OF IIND ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** **-----------------** ## **APPELLANT / PETITIONER :** **-----------------------------------------** **K.SIVARAMA PILLAI, S/O.PARAMESWARAN PILLAI, AGED 69 YEARS, KOCHUKOTTARATHIL VEEDU CHETTIKULANGARA PANCHAYAT, KANNAMANGALAM VILLAGE KADAVOOR, MAVELIKKARA. (*DIED)** ## ***ADDL. APPELLANTS 2 TO 4 IMPLEADED** - ***2. K. SARASWATHY AMMA, W/O. K. SIVARAMA PILLAI, AGED 63 YEARS KOCHUKOTTARATHIL VEEDU, CHETTIKULANGARA PANCHAYAT KADAVOOR, MAVELIKKARA.** - ***3. S. SIMY, D/O. K. SIVARAMA PILLAI AGED 31 YEARS, KOCHUKOTTARATHIL VEEDU, CHETTIKULANGARA PANCHAYAT KADAVOOR, MAVELIKKARA.** - ***4. S. KANNAN, S/O. K. SIVARAMA PILLAI AGED 28 YEARS, KOCHUKOTTARATHIL VEEDU, CHETTIKULANGARA PANCHAYAT KADAVOOR, MAVELIKKARA.** ***LRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER DATED 11.6.2012 IN IA NO. 1172/2012 IN MACA NO. 1833/2008.** **BY ADVS.SRI.ASOK M.CHERIAN SRI.SANTHOSH G. PRABHU** **SRI.S.KANNAN** **...2/-** ## **MACA.No. 1833 of 2008 ( )** ## **RESPONDENTS / RESPONDENTS :** **---------------------------------------------------** ## **1. K.P. RASHEED, S/O.PATTIS,** **AGE NOT KNOWN, KALAPEEDIKAYIL HOUSE, NADAPURAM (OWNER OF JEEP KL-10D-1260).** ## **2. SIDDIK, S/O.ABDULLA HAJI** **ASARUNTAVIDA HOUSE, CHERUVANNU, THEEKUNNI VADAKARA (DRIVER OF JEEP KL-10/D-1260). (**DELETED)** ## **3. UNITED INDIA INSURANCE CO.LTD.,** **BRANCH OFFICE, KALLINKAL BUILDERS, IIIRD FLOOR MAIN ROAD, VADAKKARA.** ****THE NAME OF R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 30-6-2009 IN IA NO. 1619/2009** **R1 BY ADV. SRI. JESWIN P. VARGHESE** **R3 BY ADV. SRI. P. MURALEEDHARAN, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------- M.A.C.A. No.1833 of 2008 -----------------------------------------------------------------Dated this the 23[rd] day of August, 2013 J U D G M E N T ## K.Ramakrishnan, J The claimant in O.P.(M.V). No.634/1998 on the file of the Additional Motor Accidents Claims Tribunal, Kozhikode, was the original appellant in the appeal. During pendency of the appeal, the original appellant died and his legal heirs were impleaded as additional appellants. The original appellant who was aged 59 years at the time of the accident, filed the application for compensation before the tribunal for the injuries and consequential disabilities sustained by him in a motor vehicle accident, caused on account of the rash and negligent driving of a vehicle by the 2[nd] respondent (who has been deleted in the appeal), owned by the first respondent and insured with the 3[rd] respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the rash and negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of 2,47,320/- on various heads as₹ follows: M.A.C.A. No.1833 of 2008 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount awarded**<br>**_₹_**| |---|---|---| |1|Transportat to hospital|1500| |2|Extra nourishment|1500| |3|Damage to clothing and article|250| |4|Bystander expenses|8600| |5|Medical expenses|167530| |6|Pain and suffering|15000| |7|Temporary loss of income|15300| |8|Compensation for permanant<br>disability|32640| |9|Loss of amenities in life|5000| ||Total|247320| Dissatisfied with the quantum of compensation awarded, the original appellant had filed the appeal before this court. 2. We have heard learned counsel for the appellants and counsel for the insurance company. 3. Counsel for the appellant submitted that the original appellant was working as a manager in a travel agency and getting 6,000/- per month. But, the₹ tribunal had taken only 1,700/- as his notional income₹ for the purpose of assessing compensation, which is very low. Further, he sustained severe injuries and underwent treatment as inpatient for merely 282 days and underwent 8 operations, and sustained a permanent disability of 40%. The amount awarded under the head bystanders expenses, transport to hospital, pain and M.A.C.A. No.1833 of 2008 3 suffering, loss of amenities in life, loss of earning during the period of treatment are also less. Though, the disability was assessed as 40%, the tribunal has taken only 20% for assessing loss of earning capacity, without assigning any proper reason, which is unsustainable in law. The tribunal ought to have taken entire 40% disability for assessing the loss of earning capacity. Further, the multiplier taken is 8. But, as per the decision of **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the multiplier will be 9. So, according to the counsel for the appellants, the appellants are entitled to get enhancement on all heads. 4. On the other hand, the counsel for the insurance company submitted that, in the absence of any evidence adduced on the side of the original appellant, the tribunal was perfectly justified in taking his notional income as 1,700/- per month. Further, he was a diabetic₹ patient and there were observations made by the tribunal that he was negligent and he was not caring to follow the M.A.C.A. No.1833 of 2008 4 advise given by the doctor, which is the reason for his disability being increased. So, the tribunal has considered all the aspects and the total amount awarded is just and proper and no interference is called for at the hands of this court. 5. We have considered the rival contentions of both parties in detail. 6. Though the original appellant had claimed to be working as manager in a travel agency, he had not produced any document to prove that fact. Further, in the evidence, he had admitted that he was not an income tax assessee and he was not even paying any profession tax. So, under the circumstances, the tribunal was perfectly justified in discarding his evidence regrading his income and fixed notionally the monthly income as ₹ 1,700/- per month, which cannot be said to be low in the year 1998, especially when the notional income for a non earning member was fixed by the legislature in the 2[nd] schedule as only 15,000 per annum.₹ 7. The petitioner has sustained the following M.A.C.A. No.1833 of 2008 5 ## injuries: “Abrasion over anterior aspect of right knee, right forearm, right hand and left elbow, fracture tibia and fibula, grade II compound fracture both bones of right leg, non union right tibia and fibula, infection at the fracture joint and that has to be removed, a portion of the bone was removed and he was put under plaster, even after that the fracture was not united, thereafter skin grafting was done by taking bone from his hip and a steel rod was fixed, later bone marrow was transplanted. During the process of his treatment his toes were disfigured and lost movement and he cannot bend his knee”. He was treated as inpatient for merely 282 days in various hospitals and a portion of his bone was removed in order to avoid amputation. 8. Further the disability certificate issued shows the following difficulties: “He had deformities such as wasting of quadriceps and calf muscles. Petitioner has shortening of his leg to two inches. He is having restriction of movement of leg”. 9. Ext.A4 disability certificate shows that he was having 40% disability. The tribunal has taken only 9 months for assessing loss of earning, which appears to be incorrect because he was undergoing treatment as inpatient for nearly 282 days. He could not have worked for some more time, even after the discharge from the hospital, considering the nature of injuries sustained and M.A.C.A. No.1833 of 2008 6 also the treatment undergone. So, we take the period of treatment, during which he could not have earned any living as 15 months and he will be entitled to get an amount of 25,500/- instead of 15,300/- awarded by the₹ ₹ tribunal, under the head loss of earning and thereby, there will be a difference of 10,500/- under that head.₹ Further the tribunal has awarded only 8,600/- under the₹ head bystanders expenses. He was under treatment for 282 days as inpatient. Even if, we take 50/- per day, as₹ the amount paid to a bystander, the amount will come to ₹14,100/towards bystanders expenses and we are inclined to award the same under that head instead of ₹ 8,600/- awarded by the tribunal. The tribunal has awarded only 15,000/- for pain and suffering, which also₹ appears to be very low. Considering the nature of injuries sustained and period of treatment undergone, we enhance the same to 25,000/-. The tribunal has awarded₹ only 5,000/- under the head loss of amenities in life.₹ Considering the fact that he has shortening of leg by two inches and he has got restriction of movements of his leg M.A.C.A. No.1833 of 2008 7 and sustained 40% disability and he will have to live with this difficulty for the remaining period of his life, we enhance the same to 20,000/- from 5,000/- awarded by₹ ₹ the tribunal. Considering the nature of injuries sustained, period of treatment undergone and number of operations undergone etc., we feel that he would have spent more amount for transport to hospital and extra nourishment and we award an amount of 4,000/- under the head₹ transport to hospital and 5,000/- under the head extra₹ nourishment instead of 1,500/- each awarded by the₹ tribunal. 10. The tribunal has taken only 20% disability for the purpose of assessing his earning capacity. Considering the nature of difficulties mentioned by the doctor in Ext.A4 disability certificate, we feel that it may have severe impact on his earning capacity as well and we enhance the loss of earning capacity fixed for the occupational disability to 30% from 20%. As per Sarla Verma's case(supra), the multiplier to be applied for the age group of 59 will be 9 and not 8, as fixed by the M.A.C.A. No.1833 of 2008 8 tribunal. In view of these inputs, if a recalculation is made, the original appellant will be entitled to get an amount of 55,800 under the head loss of earning₹ capacity(₹1,700x12x9x30%) instead of ₹ 32,640/awarded by the tribunal. On all other heads, the amounts awarded by the tribunal are just and proper. In all the appellants will be entitled to get an amount of 69,340/-₹ which we round of to ₹ 70,000/as additional compensation, which the 3[rd] respondent is liable to pay with 9% interest from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss