MACA No. 2182 of 2022

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 ``` ``` MACA NO. 2182 OF 2022 ``` ``` AGAINST THE AWARD DATED 26.06.2019 IN OP(MV)NO.18/2018 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE APPELLANT/CLAIMANT: ``` ``` BAIJU SUNIL M., AGED 47 YEARS, S/O.CHANDRAMATHI, MALADATH HOUSE, P.O.KOTOOLI, KUTHIRAVATTAM, KOZHIKODE - 673 016. ``` ``` BY ADV. SMT.K.V.RASHMI ``` ## `RESPONDENT/3RD RESPONDENT:` ``` NEW INDIA ASSURANCE COMPANY LIMITED, SHAFEER COMPLEX, OPP. YMCA, KANNUR ROAD, KOZHIKODE - 673 001. REP. BY ITS MANAGER. ``` ``` BY ADVS.SRI.LAL K JOSEPH, STANDING COUNSEL SRI.SHAJI P.MATHEW SMT.AISHWARYA MARY MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No. 2182 of 2022 -:2:- ## **JUDGMENT** Dated this the 9[th] day of November, 2023 The appeal on hand is originated from an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 26.06.2019 in O.P(M.V) No.18/2018. The appellant is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and the respondent in accordance with their status in the Original Petition. 3. The petitioner has filed this appeal on being aggrieved by the quantum of compensation stood awarded by the Tribunal. It is contended by Smt. Rahsmi K.V., the learned counsel for the petitioner that the Tribunal failed to award just and reasonable compensation under various heads. According to her, the petitioner had sustained serious injuries in the motor accident and those were MACA No. 2182 of 2022 -:3:- evidenced from Exts.A2 and A7 marked in evidence from the petitioner’s side. Attention of this Court was drawn to paragraph 14 of the impugned award and contended that petitioner had sustained bimalleolar fracture of left ankle and was treated at Medical College Hospital, Kozhikode. He had undergone inpatient treatment from 27.05.2017 till 06.06.2017. He had also undergone Open Reduction and Internal Fixation at the fracture site. He was further admitted at the hospital and treated there from 14.11.2018 till 07.11.2018 and during that period, the implants laid were removed. He was examined by a private Orthopaedic Surgeon and a certificate as Ext.A13 was issued assessing his partial disability as 15%. 4. According to the learned counsel, though the above aspects stood established before the Tribunal, it considered only 10% as the permanent disability of the petitioner and assessed compensation on its basis. According to the learned counsel, the Tribunal is highly MACA No. 2182 of 2022 -:4:- unjustified in not taking 15% itself as the disability for the purpose of calculation. 5. The learned counsel pointed out further that the monthly income was fixed by the Tribunal notionally as `10,000/-. According to her Ext.A11 certificate was produced by the petitioner to establish that he was working as a flex fitting staff in Velumani Arts, Kozhikode. But the Tribunal fixed monthly income as `10,000/- on a notional basis ignoring the documentary evidence. The learned counsel canvassed for consideration of a higher sum as the monthly income based on Ext.A11. In Ext.A11 it was stated that the petitioner was getting `30,000/- monthly. The learned counsel has pointed out further that compensation stood awarded by the Tribunal towards extra nourishment, transportation expenses, pain and sufferings and loss of amenities and enjoyments in life are also inadequate and interference by this Court is warranted. MACA No. 2182 of 2022 -:5:- 6. It is contended by the learned counsel that the Tribunal failed to award compensation towards loss of earnings for the reason that compensation was calculated by it and awarded under the head loss of earning power. According to the learned counsel, the Tribunal is unjustified in doing so and interference and grant of compensation under that head is also needed. 7. The learned counsel for the sole respondent contended on the contrary that the compensation stood awarded by the Tribunal is adequate and arrived at after appreciating the entire evidence in the right perspective. 15% was certified in Ext.A13 but for the reason that it was issued by an individual doctor who was not examined, the Tribunal has taken 10%. It is further submitted by the learned counsel that the assessment of disability being prior to the removal of implants from the fracture site, the disability assessed cannot be treated as the exact disability suffered by him and therefore, the Tribunal is justified in MACA No. 2182 of 2022 -:6:- considering only a lesser percentage than that was assessed by the doctor in Ext.A13. The monthly income was also sought to be reconsidered based on the fixation of it by the Apex Court in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236].** 8. The learned counsel has pointed out further that compensation stood awarded by the Tribunal towards pain and suffering and loss of amenities and enjoyments in life being reasonable, interference is unwarranted. The learned counsel pointed out furthermore that the compensation stood awarded by the Tribunal towards transportation expenses, bystander expenses and extra nourishment being reasonable are only to be maintained. 9. It is noticed from the impugned award that the monthly income was fixed by the Tribunal as `10,000/-. When viewed in the backdrop of **Ramachandrappa** supra, `11,000/- appears a reasonable sum to be considered as the MACA No. 2182 of 2022 -:7:- monthly income and this Court refixes it accordingly. The petitioner had sustained bimalleolar fracture and had undergone open reduction and internal fixation and another surgical procedure for removal of implants. When viewed in that backdrop, the Tribunal is unjustified in not awarding compensation towards loss of earning. Considering the nature and duration of treatment undergone by the petitioner, 5 months' period is found reasonable for awarding compensation under that head and thus `55,000/( `11,000/- x 5) is arrived at as the compensation payable towards loss of earning. The Tribunal has awarded `10,000/- each as compensation towards pain and sufferings and loss of amenities and enjoyments in life. Since the petitioner had sustained bimalleolar fracture on left ankle and was subjected to two operations for laying of the implant and for removal of it, he needs to be compensated reasonably for that. This Court finds it reasonable to grant `20,000/- and `10,000/- more as MACA No. 2182 of 2022 -:8:- additional compensation respectively towards pain and suffering and loss of amenities and enjoyments in life. As compensation towards bystander expenses, `17,500/stood awarded by the Tribunal being reasonable is maintained. The sums stood awarded as compensation towards transportation expenses and extra nourishment, being inadequate, this Court is inclined to award `2,000/more under those heads. 10. Petitioner was examined by an individual doctor and his partial disability was assessed as 15% and certifying that Ext.A13 was issued. But, the basis for assessment of disability as 15% was not stated in Ext.A13. For the reasons, the Tribunal has considered 10% as his partial disability and compensation for that was calculated on its basis. But as rightly pointed out by the learned counsel, the assessment of disability was prior to removal of implants from the fracture site. Therefore, there is possibility for changes to occur in the disability when the implants are MACA No. 2182 of 2022 -:9:- removed. Evidence is not adduced in that respect. Having due regard to the fact that an appeal was not filed against the consideration of the disability, this Court finds justification in maintaining 10% disability considered by the Tribunal. Since the monthly income was modified as `11,000/-, compensation for loss of earning power needs to be re-calculated on its basis. Thus `1,84,800/- (`11,000/12 x 14 x 10/100) is arrived at. `1,68,000/- stood awarded by the Tribunal when adjusted against, the petitioner will get `16,800/- as additional compensation towards loss of earning power. 11. In the above manner of calculation afresh, the petitioner will get `1,05,800/- (`55,000/- + `20,000/+`10,000/- +`2,000/- + `2,000/- + `16,800/-) (Rupees One Lakh Five Thousand and Eight Hundred only) as additional compensation, which amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation MACA No. 2182 of 2022 -:10:- excluding 404 days being the period of delay occurred in filing the appeal on hand. The sole respondent in the appeal who was the 3[rd] respondent before the Tribunal shall pay the additional compensation now arrived at with interest accrued on it and also the original compensation stood awarded by the Tribunal with interest accrued on it and costs (if not already paid) within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. MACA stands allowed accordingly. Sd/- **MARY JOSEPH** MJL