M.A.C.A.No.1924 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 2ND DAY OF AUGUST 2017/11TH SRAVANA, 1939 MACA.No. 1924 of 2008 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V) 1282/2001 of ADDL.MACT, THALASSERY DATED 22-11-2006 APPELLANT/PETITIONER: ---------------------------- M.K.RAJEEVAN, S/O.BALAN, AGED 40 YEARS, 'PARAMBIL HOUSE', VALIYANNUR P.O, VARAM,, KANNUR DISTRICT. BY ADVS.SMT.K.K.CHANDRALEKHA SRI.GOPAKUMAR G. (ALUVA) ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. A.KUNHIKANNAN, S/O.KUNHIRAMAN, PUTHARIYADUKKAM, PALAYI ROAD, PEROL VILLAGE,, NEELESWARAM, KASARGOD (OWNER OF THE VEHICLE NO., KL-14/B-1239). 2. M/S.ORIENTAL INSURANCE CO.LTD.REP;BY ITS DIVISIONAL MANAGER, KANNUR(POLICY NO.2207/2001 OF, KASARGOD BRANCH) 3. V.THAMBAN, S/O.V.MADHAVAN NAIR, CHOORKKAYAM NATTAKKAL.P.O, WEST ELERI VILLAGE, (PARAPPA) (DRIVER OF THE VEHICLE NO.KL-14/B-1239) ## R2 BY ADV. SRI.V.P.K.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- M.A.C.A.No.1924 of 2008 -------------------------------Dated 2[nd] August, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Additional Motor Accidents Claims Tribunal, Thalassery dated 22.11.2006 in O.P. (M.V)No.1282 of 2001, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident occurred on 29.9.2000, while he was driving a bus. When the said vehicle reached the place of accident, it was hit by another bus bearing Reg.No.KL-14/B-1239, owned and driven by respondents 1 and 3 and insured with the second respondent. As a result of the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus bearing Reg.No.KL-14/B-1239 by the third respondent driver, claim petition was filed before the Tribunal claiming a total compensation of 5,00,000/-,₹ under different heads. 2. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant and he was examined as PW1. Ext.X1 is the M.A.C.A.No.1924/2008 2 disability certificate issued by the Medial Board. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the offending bus by the third respondent driver. Since the said vehicle was covered by a valid insurance policy at the time of accident, the second respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of 1,28,640/- and directed the₹ second respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. ## 5. Heard arguments. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2000 and at the time of accident the appellant/claimant was aged 33 years. He claimed a monthly income of M.A.C.A.No.1924/2008 3 ₹4,085/- as a driver, relying on Ext.A5 pay certificate. Other than the oral testimony of the appellant/claimant as PW1, there was no reliable materials before the Tribunal in order to prove the monthly income of the appellant/claimant. Since no steps were taken to prove Ext.A5 pay certificate, the Tribunal took the monthly income notionally as 2,000/-,₹ for the purpose of assessing compensation under different heads. ## 8. In _**Ramachandrappa** v._ _**Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ the Apex Court notionally fixed the monthly income of a coolie who met with a motor accident in the year 2004 at 4,500/-. In the instant case,₹ the accident is of the year 2000 and at the time of accident the appellant/claimant was driving a heavy vehicle. The second respondent insurer has absolutely no case that, at the time of the accident he was driving the said vehicle without a valid driving licence and badge. In such circumstances, we deem it appropriate to re-fix his monthly income notionally at ₹3,000/for the purpose of assessing compensation under different heads. 9. The injuries sustained by the appellant/claimant, as borne out from Ext.A2 wound certificate read thus:- “Deformity on the right thigh and diffused swelling, lacerated wound over the medial aspect of the right foot 5 x 1 cm. and swelling, fracture shaft of the right M.A.C.A.No.1924/2008 4 femur and comminuted fracture first metatarsal of right foot.” As a result of the injuries sustained in the accident the appellant/claimant had undergone inpatient treatment for a period of 32 days, which fact is not in dispute. Ext.A3 series of discharge summaries would show the treatment undergone by the appellant/claimant, which includes `K' wire fixation of the right first metatarsal, etc. 10. In Ext.X1 disability certificate issued by the Medical Board, the percentage of permanent disability has been assessed as 8% and in the said certificate an occupational disability of 20% as bus driver was also assessed. The appellant/claimant has not chosen to prove the occupational disability of 20% as certified in Ext.X1 disability certificate by examining any members of the Medical Board. Since the basis for assessment of occupational disability much above the percentage of permanent disability of 8% as certified in Ext.X1 certificate was not established before the Tribunal after supporting evidence, the Tribunal has chosen to take 8% permanent disability ascertained in Ext.X1 as the basis for assessing compensation under the head disability. The procedure so adopted by the Tribunal warrants no interference in this appeal. In such circumstances, the entitlement of the appellant/ claimant for compensation under the head disability can only be for 8% M.A.C.A.No.1924/2008 5 permanent disability, as c ertified in Ext.X1. 11. The compensation awarded by the Tribunal under different heads reads thus:- |ds reads thus:-|| |---|---| |**_Head_**|**_Amount awarded.(Rs.)_**| |Disability|32,640.00| |Pain and sufferings|20,000.00| |Loss of amenities|10,000.00| |Medical expenses|60,000.00| |Loss of income|4,000.00| |Other eligible counts|2,000.00| |Total|1,28,640.00| 12. Towards disability compensation, the Tribunal awarded a sum of 32,640/-, taking the notional monthly income as 2,000/-, multiplier₹ ₹ as `17' and percentage of disability as 8%. The appellant/claimant was aged 33 years at the time of accident. Therefore, the proper multiplier applicable, going by the decision of the Apex Court in _**Sarla Verma v.**_ _**Delhi Transport Corporation (2010 (2) KLT 802 (SC))** ,_ is only `16'. Since we have already re-fixed his monthly income notionally at ₹3,000/-, the compensation under this head is re-worked as 46,080/-₹ (3,000x12x16x8/100), resulting an additional compensation of **₹ 13,440/-** . 13. Towards pain and sufferings, the Tribunal awarded a sum of ₹20,000/-. Considering the nature of injuries sustained and the M.A.C.A.No.1924/2008 6 treatment the appellant/claimant had undergone, as borne out from medical records, the compensation awarded as above represents just and reasonable compensation, which warrants no enhancement in this appeal. 14. Towards loss of amenities, the Tribunal awarded a sum of ₹10,000/-. Considering the nature of injuries sustained and the disability that had arisen therefrom, as certified in Ext.X1 disability certificate, we deem it appropriate to re-fix the compensation under this head as 15,000/-, resulting an additional compensation of ₹ **₹ 5,000/-** . 15. Towards medical expenses, the Tribunal awarded a sum of ₹60,000/- covered by Ext.A8 series of medical bills, which warrants no enhancement in this appeal. 16. Towards loss of income, the Tribunal awarded a sum of ₹4,000/-, at the rate of ₹2,000/- for a period of two months. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, we deem it appropriate to grant loss of income for a period of five months, taking into consideration the nature of his employment. Since we have already re-fixed his monthly income as 3,000/-, the compensation under this head is re-worked₹ as ₹15,000/- (3,000x5), resulting an additional compensation of **₹ 11,000/-** . M.A.C.A.No.1924/2008 7 17. The Tribunal awarded a sum of 2,000/- under other eligible₹ counts. Since the appellant/claimant had undergone inpatient treatment for a period of 32 days, he is entitled for compensation under the head bystander's expenses at the rate of 150/- per day and that₹ under the head extra nourishment at the rate of 100/- per day.₹ Therefore he is entitled for a sum of 4,800/- (150x32) under the head₹ bystander's expenses and a sum of 3,200/- (100x32) towards extra₹ nourishment. In addition to this, he is entitled to a sum of 1,000/-₹ under the head transportation expenses and 750/- under the head₹ damage to clothing. Therefore, the total compensation payable under these heads comes to ₹ 9,750/-(4,800+3,200+1,000+750). After deducting 2,000/- awarded by the Tribunal under other eligible counts,₹ the appellant/claimant will be entitled for an additional compensation of **₹ 7,750/-** under the above heads. 18. In the result, the appellant/claimant will be entitled for an additional compensation of **₹ 37,190/-** (13,440+5,000+11,000+7,750) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation, excluding the period of 480 days in filing this appeal, which was condoned by the order dated 29.8.2014 in C.M.Appl.No.1946 of 2008, subject to the condition that, on enhanced compensation being granted, the appellant/claimant will M.A.C.A.No.1924/2008 8 not be entitled for interest for the said period of delay. 19. Since the insurance coverage of the offending vehicle is not in dispute, the second respondent insurer shall deposit the said amount before the Tribunal, within a period of one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS // true copy // P.S. To Judge