MACA NO. 2047 OF 2013

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ## **`MACA NO. 2047 OF 2013`** ``` (AGAINST THE ORDER/JUDGMENT DATED 30.04.2013 IN OPMV NO.359 OF ``` ## **`2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA)`** ## **`APPELLANT/PETITIONER:`** ## **`MOHANLAL`** ``` S/O.VIJAYAMOHANAN, MANGALASSERIYIL HOUSE, MARYKULAM KARA, MARAYKULAM BHAGOM, AYYAPPAN KOVIL VILLAGE, NOW RESIDING AT AMBATTU HOUSE, POOVARANY P.O., POOVARANY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. ``` ## **`BY ADV SRI.ABRAHAM MATHEW (VETTOOR)`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 RAJU THOMAS S/O.THOMAS, KOZHIPURATHU HOUSE, 1ST MILE BHAGOM, AMARAVATHY KARA, KUMALI VILLAGE, PIN: 691 536.`** - **`2 THE NEW INDIA ASSURANCE CO. LTD REP. BY ITS DIVISIONAL MANAGER, KOTTAYAM, PIN: 686 00.`** ``` BY ADV SMT.A.SREEKALA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2047 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in OP(MV) No.359/2010 on the files of the Motor Accident Claims Tribunal, Pala. 2. The said claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 24.10.2009. According to him, while he was walking through the road he was knocked down by a vehicle bearing registration No.KL-37-2171, driven by the 1[st] respondent in a rash and negligent manner. The said vehicle was owned by the 1[st] respondent himself and it was insured with the 2[nd] respondent. The appellant was aged 41 years and according to him, he was engaged in a business of sales of coffee powder, with a monthly income of Rs.10,000/-. He sustained serious injuries which resulted in physical disability as well. The claim petition was submitted in such circumstances. 3. The 2[nd] respondent filed a written statement, admitting the coverage of policy for the said vehicle. However, they denied the negligence on the part of the 1[st] respondent and the quantum of compensation was also disputed by them. ``` MACA NO. 2047 OF 2013 ``` ``` 3 ``` 4. The evidence in this case consists of Exts.A1 to A13 from the side of the appellant. A disability certificate issued by the Medical College Hospital, Kottayam was marked as Ext.X1. From the side of the respondents, the policy certificate was marked as Ext.B1. 5. After the trial, the tribunal found that the accident occurred due to the negligence of the 1[st] respondent and being the insurer, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,49,540/- and the said amount was directed to be deposited with interest at the rate of 7.5% per annum from the date of petition till realisation and with proportionate costs. Being dissatisfied with the quantum of compensation, this appeal is submitted by the appellant. 6. Heard Sri. Abraham Mathew (Vettoor) the learned counsel appearing for the appellant and Smt. A. Sreekala, the learned counsel appearing for the 2[nd] respondent. 7. The learned counsel appearing for the appellant contends that the amounts awarded by the tribunal on various ``` MACA NO. 2047 OF 2013 ``` ``` 4 ``` heads are on the lower side whereas, the learned counsel for the 2[nd] respondent would point out that a reasonable amount was awarded and no interference is necessary. 8. After going through the records, I find some force in the contention put forward by the learned counsel for the appellant. As regards the compensation for disability, for assessing the same, the monthly income accepted by the Tribunal was Rs.4,500/- which appears to be very low. Of course, it is true that, even though a monthly income of Rs.10,000/- was claimed by the appellant, no evidence was adduced by the appellant to show the nature of business and the monthly income derived therefrom. Even if that be so, the monthly income of Rs.4,500/- is very low in view of the fact that the accident occurred in the year 2009. If the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, the monthly income for the year 2009 could be reasonably fixed as Rs.7,000/- ``` MACA NO. 2047 OF 2013 ``` ``` 5 ``` (by fixing the basic monthly income as Rs.4,500/- and by making and addition of Rs.500/- per year for determining monthly income for the subsequent years). In the absence of any evidence Rs.7,000/- is thus taken as the monthly income. 9. The next aspect to be considered is the percentage of disability. In Ext.X1, the Medical Board certified the whole body disability as 11%. However, the Tribunal without highlighting any reasons, reduced the same to 8%. It is discernible from the records that the appellant had sustained the following injuries in the accident: 1. Contusion back of neck. 2. Abrasion left elbow and back of knee. 3. Traumatic C6 and C7 spinous process and C7 fracture. 4. C7 lamina fracture. Taking note of the above, a panel of Doctors assessed the percentage of the whole body of the appellant as 11%. When a panel of competent Doctors have already certified the percentage of disability after evaluating and examining the person concerned, it was not proper for the Tribunal to sit in appeal over the same ``` MACA NO. 2047 OF 2013 ``` ``` 6 ``` and revise the same in the absence of any serious discrepancies. In this case, I do not find any such discrepancies warranting any interference. Therefore, I am inclined to accept the percentage of disability as 11%, as certified Ext.XI. Thus, while reassessing the compensation with the above revised criteria, the compensation for disability and consequential earning capacity would come to Rs.1,47,840/- (7,000 x 12 x 16 x11/100). The amount awarded by the Tribunal under this head is 64,800/- and thus the additional compensation comes to Rs.83040/-. 10. Consequent to the revision of monthly income, the appellant would be entitled to some additional amount under the head of loss of earnings. The Tribunal awarded compensation under this head for a period of 5 months at the rate of Rs.4,500/per month. The period of five months appears to be reasonable and as far as the monthly income is concerned I have already revised it as Rs.7,000/-. Thus, it will result in an addition of Rs.12,500/-. 11. The amount awarded by the Tribunal towards pain and suffering was only Rs.25,000/- and considering the nature of ``` MACA NO. 2047 OF 2013 ``` ``` 7 ``` injuries referred to above and the period of treatment, both as inpatient and outpatient, I deem it appropriate to grant a further sum of Rs.10,000/-. The next head to be considered is compensation for loss of amenities and the amount awarded by the Tribunal under this head was Rs.10,000/-. It is discernible from the records that the appellant sustained serious injuries and it resulted in physical disability to the tune of 11%. The appellant has to live with that disability for the remainder of his life and it will affect the quality of his life. Therefore, reasonable compensation is to be granted for the loss of amenities and in the facts and circumstances, I deem it appropriate to grant a further amount of Rs.20,000/-. Thus, the total additional compensation is determined as Rs.1,25,540/- (83040+12,500+10,000+20,000). In the result, this appeal is allowed and the award dated 30.04.2013 passed by the Motor Accidents Claims Tribunal, Pala in O.P.(M.V.) No.359/2010 is hereby modified, by granting an additional compensation of Rs.1,25,540/- (Rupees one lakh twenty five thousand, five hundred and forty only) and the said amount shall be deposited by the 2[nd] respondent with interest at ``` MACA NO. 2047 OF 2013 ``` ``` 8 ``` the rate as ordered by the Tribunal with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs