MACA NO. 2707 OF 2009

MACA NO. 2707 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943** **MACA NO. 2707 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 961/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR** ## **APPELLANT/S:** K.C.MOHANAN, S/O.CHALLAMONI, CHARUVILA VEEDU, ERATHUKULAKKADA, KOTTARAKARA, KOLLAM DISTRICT. BY ADV SRI.PREMCHAND R.NAIR ## **RESPONDENT/S:** 1 THULASEEDHARAN PILLAI S/O.GOPALA PILLAI,PALAVILA HOUSE, KULAKKADA EAST PO, KOTTARAKARA. 2 RAJENDRAN SO.VASUDEVAN NAIR REMANI SADANAM, ERATHUKULAKKADA PO, KALAYAPURAM VILLAGE, KOTTARAKARA TALUK. 3 THE ORIENTAL INSURANCE COMPANY LTD BRANCH OFFICE, PULAMON, KOTTARAKARA. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2707 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.961/2002 on the file of the Motor Accidents Claims Tribunal, Punalur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 23.12.2001. It was his case that, on the above said date, while he was traveling in a jeep bearing registration No.KL.2E 2205 along with three other persons through Erathu Kulakkada -Thazhathu Kulakkada, due to the negligence of the 2[nd] respondent, the jeep capsized. The appellant's left leg got crushed under the jeep. He sustained serious injuries and was treated at the KNS Hospital, Kottarakkara and the Specialist Hospital, Ernakulam, for a period of 93 days. He had to undergo several operations and plastic surgery on his left leg. He incurred substantial expenditure for his medical treatment. 3 MACA NO. 2707 OF 2009 The jeep was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a labourer by profession and he was earning a monthly income of Rs.2,900/-. Hence the appellant claimed a compensation of Rs.5,95,000/- from the respondents, which claim was limited to Rs.5,00,000/-. 3. Two other passengers, who were travelling in the jeep, who also sustained injuries in the same accident, filed OP(MV) Nos.870/2002 and 763/2002 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 5. The 3[rd] respondent had filed separate written statements in all the claim petitions denying the allegations in the claim petitions. The 3[rd] respondent disputed the age, income and occupation of the petitioners. The 3[rd] respondent also contended that there was no negligence on the part of the 2[nd] respondent. However, the 3[rd] respondent admitted that the jeep had a valid insurance coverage. MACA NO. 2707 OF 2009 4 6. The Tribunal consolidated and jointly tried the three claim petitions. 7. The petitioners in the two claim petitions and witnesses were examined as PWs 1 to 3 and Exts.A1 to A17 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,45,300/with interest and cost of Rs.750/-. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.Premchand R. Nair, the learned counsel appearing for the appellant/petitioner and Smt. K.S. Santhi, the learned counsel appearing for the 3[rd] respondent/insurer. 11. The point that arises for consideration in the appeal is whether the quantum of compensation awarded MACA NO. 2707 OF 2009 5 by the Tribunal is reasonable and just ? ## **Negligence and Liability** 12. Ext.A4 final report filed by the Police proves that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the jeep. The respondents have not let in any evidence to discredit Ext.A4 final report. Likewise, the 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 13. The appellant had claimed that he was a manual labourer by profession and was earning a monthly income of Rs.2,900/-. For want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2,500/-. 14. In **Ramachandrappa vs. Manager, Royal** MACA NO. 2707 OF 2009 6 ## **Sundaram Alliance Insurance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 15. Following the yardstick in the afore-cited decision, and considering the fact that the appellant had claimed that he was earning a notional monthly income of Rs.2,900/- and the accident occurred in the year 2001, I refix the notional monthly income of the appellant at Rs.3,000/-. ## **Loss of earnings** 16. It is proved and established that the appellant had suffered multiple injuries to his left leg. He was treated as an inpatient for a period of 93 days in two hospitals. He had to undergo surgeries as well as plastic surgery. He has suffered shortening of his left leg, ankle joint ankylosis and impairment of sensation over the left foot. In the above circumstances, I hold that he was indisposed for a period of six months. MACA NO. 2707 OF 2009 7 17. In view of the refixation of the notional monthly income of the appellant at Rs.3,000/-, I award him an amount of Rs.18,000/- under the head ‘loss of earnings’. ## **Disability** 18. The appellant had produced Ext.A10 disability certificate issued by the Assistant Professor of Orthopaedics attached to the Department of Orthopaedics, Medical College Hospital, Thiruvananthapuram. The Doctor has found that the appellant had suffered Type III compound fracture of both bones of his left leg, compound tarsometatareal dislocation of left foot and he had to undergo debridament and application of external fixation. The Doctor also found that the appellant had shortening of his left leg due to mal-union of the fracture of the lower 3[rd] left leg and he is unable to squat, run or climb steps. Accordingly, the Doctor fixed his permanent disability at 14%. However, the Tribunal scaled down the disability and fixed it at 10%. 19. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT MACA NO. 2707 OF 2009 8 620], the Honourable Supreme Court has categorically held that in case the Tribunal is dissatisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. Further, it is also held that if the disability certificate is marked in evidence with the consent of the parties, the same can be accepted in evidence. Also, what needs to be looked into is the functional disability of the injured/claimant. 20. On going through Ext.A10 disability certificate and finding that the appellant was a manual labourer, I am of the firm view that the disability assessed by the Doctor in Ext.A10 has to be accepted. Hence, I fix the 'functional disability' of the appellant at '14%' as certified in Ext.A10. ## **Multiplier** 21. The appellant was aged 35 years at the time of the accident. In view of the law laid down in **Sarla Varma vs.** **Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant multiplier to be adopted is “16”. MACA NO. 2707 OF 2009 9 ## **Loss of earning capacity** 22. Taking into account the above mentioned factors namely, the notional monthly income of the appellant at Rs.3,000/-, his functional disability at 14% and the multiplier at '16', I award him an amount of Rs.80,640/towards ‘loss of earning capacity’ instead of Rs.51,000/awarded by the Tribunal. ## **Bystander expenses andextra nourishment** 23. It is proved and established that the appellant was treated as an inpatient for a period of 93 days. The Tribunal has awarded only an amount of Rs.4,650/- towards bystander expenses and Rs.1,000/- towards extra nourishment, which are on the lower side. 24. On a consideration of the fact that the accident had happened in the year 2001, I award the appellant an amount of Rs.100/- per day for a period of 93 days towards 'bystander expenses' which works out to Rs.9,300/- and an amount of Rs.50/- per day for a period of 93 days towards MACA NO. 2707 OF 2009 10 'extra nourishment', which works to Rs.4650/-. ## **Pain and sufferings and loss of amenities** 25. The Tribunal has awarded only an amount of Rs.10,000/- under the head pain and sufferings. I find the amount to be on a lower side. 26. Taking into account the fact that the appellant had sustained severe injuries to his left leg, that he was treated as an inpatient for a period of 93 days, that he was indisposed for a period of six months and that he suffered a functional disability of 14%, I award him a further amount of Rs.20,000/- under the head ‘pain and sufferings’ and an amount of Rs.15,000/- under the head ‘loss of amenities’. 27. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 28. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and MACA NO. 2707 OF 2009 11 ## recalculated above and given in the table below for easy ## reference: **==> picture [457 x 463] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 7,500 18,000<br> 2. Transportation 750 750<br>expenses<br>3. Clothing 400 400<br>4. Bystander expenses 4,650 9,300<br>5. Extra nourishment 1,000 4,650<br>5. Medical expenses 70,000 70,000<br>6. Pain and sufferings 10,000 30,000<br>7. Loss of amenities 0 15,000<br>8 Loss of earning 51,000 80,640<br>capacity<br>Total 145300 2,28,740<br>rounded off<br>to<br>Rs.2,30,000<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.84,700/-** with interest @ 6% per annum from the date MACA NO. 2707 OF 2009 12 of petition till the date of deposit, after deducting interest for a period 79 days (i.e., the period of delay in filing the appeal and as ordered by this Court on 25.10.2021 in C.M.Appln. No.2/2009) and a cost of Rs.10,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal, within a period of 60 days from the date of receipt of a certified of this on the copy judgment. Immediately compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/15.03.22