MACA NO. 2862 OF 2009 (George S/o Kunjuvareed v. P.P. Rocky Payyapilly, Jayakumar So. Rajan, The New India Assurance Co. Ltd. and Others)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 ``` ``` MACA NO. 2862 OF 2009 ``` ``` AGAINST THE AWARD IN OPMV 1742/2004 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL, IRINJALAKUDA`** ## **`APPELLANT/PETITIONER :`** ``` GEORGE S/O.KUNJUVAREED MOORKANATTUKARAN HOUSE, PALLIKUNNU DESOM,, VARADARAPILLY P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS 1, 2 AND 4 :`** - **`1 P.P.ROCKY PAYYAPILLY HOUSE, MURINGOOR P.O.`** - **`2 JAYAKUMAR SO. RAJAN VATTAPARAMBIL HOUSE, KUNNAPILLY P.O.`** - **`3 THE NEW INDIA ASSURANCE CO. LTD. VELLANIKARAN BUILDING, MAIN ROAD, IRINJALAKUDA.`** - **`BY ADV SMT.P.K.SANTHAMMA`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2862 OF 2009 ``` ``` 2 ``` ## **JUDGMENT** This appeal is at the instance of the original petitioner in O.P.(MV).No.1742/2004 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant as well as the learned counsel for the Insurance Company. 3. The brief facts as follows: The appellant lodged claim before the Tribunal, on the allegation that he sustained serious injuries pursuant to an accident occurred on 11.06.2004. The appellant was a passenger in the bus bearing registration No. KL.8/N 5977 and while the appellant was just getting down from the bus, the 2[nd] respondent took the bus forward rashly and negligently and as a result, the appellant sustained injuries. ``` MACA NO. 2862 OF 2009 ``` ``` 3 ``` 4. Respondents 1 and 2 were declared ex parte by the Tribunal. 5. The third respondent, initially arrayed as the insurer, filed written statement and denied the policy. Later, the original insurer got arrayed as the fourth respondent before the Tribunal. 6. The fourth respondent filed written statement and admitted policy, while disputing accident, negligence as well as the quantum of compensation. 7. The Tribunal adjudicated the matter acting on documentary evidence marked as Exts.A1 to A10 and finally Rs.2,16,250/- was granted as against claim of Rs.3,00,000/-. 8. In this case, the learned counsel for the appellant highlighted two points. According to him, the yearly income fixed by the Tribunal is Rs.18,000/- in case where the appellant claimed the same at Rs.5,000/-, being a CD shop runner. ``` MACA NO. 2862 OF 2009 ``` ``` 4 ``` 9. In so far as the monthly income is concerned, in cases where there is no absolute proof, decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** would govern. Therefore, in this case involving accident of the year 2004, Rs.4,500/- is fixed as the monthly income. 10. The second point argued by the learned counsel for the appellant is that the Tribunal not considered disability in tune with the treatment records, though as per Ext.A8 disability certificate, limb disability of 46% was assessed. He has placed a decision of the Apex Court reported in **Raj Kumar v. Ajay Kumar and Another (2010 KHC 5021)** and argued that calculation of disability income shall be based on the effect of the permanent disability of the earning capacity of the injured. ``` MACA NO. 2862 OF 2009 ``` ``` 5 ``` 11. In this matter, in paragraph No.6 of the award, the Tribunal discussed the injuries, treatment and also the reasons for fixing 23% disability. In fact, the Tribunal considered comminuted fracture femur left, implant fixation, its removal and also the prolonged treatment. Accordingly, the limb disability assessed as 46% was accepted subject to conversion of the same to whole body disability and accordingly, the whole body disability is fixed at 23%. 12. Ext.A9 is the treatment certificate issued from Jubilee Mission Medical College Hospital dated 10.02.2009, therein, it is stated that the appellant could not walk freely and he needs support. In this case, out of Rs.2,16,250/- granted by the Tribunal, an amount of Rs.1,49,450/- was towards medical expenses. Having considered the nature of injuries and the treatment along with Ext.A9, I am inclined to consider 30% whole body disability in this matter for assessing the disability ``` MACA NO. 2862 OF 2009 ``` ``` 6 ``` income by applying multiplier ‘7’ applicable to the age group between 61 and 65 in this case, where admittedly, the appellant was aged 61 years at the time of accident. 13. Therefore, the disability income is re-calculated as follows: 4,500 x 12 x 7 x 30/100 = 1,13,400/- Out of which, Rs.20,700/- was granted by the Tribunal. Thus, **Rs.92,700/-** more is granted under the head ‘loss of disability income’. 14. The Tribunal granted ‘loss of earnings’ for a period of six months. The same is re-calculated at the rate of Rs.4,500/- for a period of six months. Thus, the appellant is entitled to get Rs.27,000/-. Out of which, the Tribunal granted Rs.9,000/-. Accordingly, **Rs.18,000/-** (27,000 - 9000) more is granted under the head ‘loss of earnings’ 15. Under the heads ‘pain and suffering’ and ‘loss of amenities’, the Tribunal granted Rs.18,000/- and ``` MACA NO. 2862 OF 2009 ``` ``` 7 ``` Rs.10,000/- respectively. I am inclined to increase the same by **Rs.7,000/-** and **10,000/-** more respectively. 16. Since the appellant claimed only Rs.3,00,000/-, the appellant is liable to pay court fee for the compensation granted in excess of Rs.3,00,000/-. Hence, the grant of enhanced compensation is subject to payment of court fee for additional sum of Rs.43,950/-. In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.3,43,950/as compensation, out of which, Rs.2,16,250/- was granted by the Tribunal and the balance of **Rs.1,27,700/-** (Rupees one lakh twenty seven thousand and seven hundred only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by respondents 1 to 3 and the third respondent - Insurance Company is liable to pay the same, from the date of petition till the date of deposit or realisation. ``` MACA NO. 2862 OF 2009 ``` ``` 8 ``` The third respondent-Insurance Company is directed to deposit court fee for a sum of Rs.440/- in the name of the Motor Accidents Claims Tribunal, being the additional court fee and the remaining amount in the name of the appellant within two months from today. On deposit, the appellant can release the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr