M.A.C.A.No.2002 of 2010

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937** **MACA.No. 2002 of 2010 ( ) -------------------------AGAINST THE AWARD IN OPMV 1269/2006 of M.A.C.T OTTAPPALAM, DATED 22-01-2010** **APPELLANT(S)/PETITIONER:** **-----------------------** **M.A.VARGHESE, S/O.ANTONY, AGED 45 YEARS, MATHIPURAM HOUSE, KARIMBA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** **RESPONDENT(S):** **--------------** **1. MOHANAN, S/O. LAKSHMANAN, AGED 38 YEARS, THOLANOOR, IRUMBAKAMCHOLA, KORANAKUNNU, KANJIRAPUZHA, MANNARKKAD TALUK, PALAKKAD DISTRICT.** **2. P.MANIKANDAN, S/O.BALACHANDRAN, AGE NOT KNOWN, MANIMANDIR, ELAMBULASSERY, MANNARKKAD TALUK, PALAKKAD DISTRICT.** **3. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, DOOR NO.8, JYOTHI SUPER BAZAR, THODUPUZHA.** **BY ADVS. SRI.LAWRENCE D'CUNHA SRI.K.MADHUSOODANAN SRI.MATHEW BONSTANE SRI.T.G.PAUL SRI.MATHEW JACOB (KUNNATHU)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------ **M.A.C.A.No.2002 of 2010** ---------------------------------------------------Dated this the 19[th] day of February, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Claimant in O.P.(MV)No.1269/2006 on the file of the Motor Accidents Claims Tribunal, Ottappalam is the appellant herein. The appellant filed the claim petition claiming compensation for the personal injuries sustained by him in a motor vehicle accident occurred on 06.08.2005. According to the claimant, he was riding the motor cycle with registration No.KL-9J/5412 from Karimba to Palakkad and when it reached the place of occurrence, the bus with No.KL-8V/474 driven by first respondent owned by the 2nd respondent and insured with the 3rd respondent came from the wrong side in a negligent manner and hit against the motor cycle and he suffered severe injuries and disability. He was an agricultural labourer earning ₹5,000/- per _**R.C.R.No.2002 of 2010**_ 2 month. He claimed a total compensation of 5,14,750/- on₹ various heads. 2. Respondents 1 and 2 remained absent and the 3rd respondent appeared and filed counter admitting insurance but denying the negligence. According to them, the accident occurred due to the negligent driving of the motor cycle by its rider. So without impleading the owner, rider and the insurance company of that vehicle, the petition is bad for non-jointer of necessary parties. They denied the occupation, income, disability etc., claimed by the petitioner. According to them, the total compensation claimed is exorbitant and they prayed for dismissal of the application. 3. After considering the evidence on record, the court below on the basis of the police records came to a conclusion that the accident occurred due to the negligent driving of the bus by its driver. The court below awarded a total compensation of 1,57,000/- on various heads as₹ _**R.C.R.No.2002 of 2010**_ 3 ## follows: |**_Heads_**|**_Amount in Rs._**| |---|---| |Permanent disability|27,000/-| |Medical bills|78,600/-| |Bystanders expenses|3,400/-| |Pain and suffering|16,000/-| |Loss of amenities|10,000/-| |Extra nourishment, transport to hospital and<br>damage to clothing|7,000/-| |loss of earning during the period of treatment|15,000/-| |Total|1,57,000/-| The tribunal directed the 3rd respondent insurance company to pay the amount with 7% interest from the date of petition till payment. Dissatisfied with the quantum of compensation awarded the present appeal has been preferred by the claimant/ appellant before the court below. 4. Heard Sri.Binoy Vasudevan, counsel appearing for the appellant and Sri.Lawrence D'Cunha, counsel appearing for the 3rd respondent insurance company. Respondent 1 and 2 remained absent. 5. The counsel for the appellant submitted that the evidence of PW1 coupled with Ext.A1 disability _**R.C.R.No.2002 of 2010**_ 4 certificate will go to show that he sustained 15% disability, but the court below had arbitrarily reduced the same to 5%. Further they had produced documents to show that he is doing agricultural work by taking land on lease and so the amount of 3,000/- fixed by the court below as his monthly₹ income is also less. Further no future prospects have been taken into consideration while fixing the compensation under the head loss of earning capacity. The amounts awarded under the head pain and suffering, loss of amenities in life, loss of earning during the period of treatment were also very low. So according to him, he is entitled to get enhanced compensation on all other heads. 6. On the other hand, the counsel for the insurance company submitted that the court below had liberally considered all the aspects and rightly awarded just and fair compensation and no enhancement is called for. 7. The case of the claimant was that he was an agriculturist getting 5,000/- per month. Except producing₹ _**R.C.R.No.2002 of 2010**_ 5 Ext.A9 income certificate issued by the village officer and Exts.A10 and A11 agreements, no other acceptable evidence has been adduced to prove the actual income derived by him by doing his agricultural operation. As rightly pointed out by the court below, it may only go to show that he is doing some agricultural work, that alone is not sufficient to fix the monthly income. In the absence of any convincing evidence, considering the fact that the accident occurred in the year 2005, the amount of 3,000/- fixed by the court₹ below as his monthly income cannot be said to be very law. So we do not find any reason to interfere with the monthly income fixed by the tribunal. 8. The appellant sustained lateral condyle fracture (L), tibia fracture (L) femur, LSC tear (L), comminuted fracture left radius (Rt) and fracture right scaphoid which is an undisplaced fracture. He underwent ORIF with cannulated cancellous screw fixation of (L) knee and UMEx(R) forearm. He was treated as inpatient for 17 _**R.C.R.No.2002 of 2010**_ 6 days on two occasions. Further, it will be seen from the documents produced that he underwent physiotherapy and also visited the hospital on several occasions. Considering the nature of injuries sustained, the period of treatment taken by five months for assessing compensation under the head loss of earning power appear to be on the lower side and we take nine months as the period during which he could not work and we award 27,000/- instead of₹ ₹15,000/- awarded by the tribunal under that head. The appellant/claimant will be entitled to an additional compensation of 12,000/- under the head loss of earnings₹ during the period of treatment. Considering the nature of injury sustained, the period of treatment and the nature of treatment undergone, the amount awarded under the head pain and sufferings appear to be on the lower side. So we enhance the same to ₹30,000/- from 16,000/- awarded by the tribunal, thereby₹ the claimant will be entitled to an additional compensation _**R.C.R.No.2002 of 2010**_ 7 of 14,000/- under the head pain and sufferings. The₹ tribunal had taken 3,000/- as monthly income and reduced₹ the disability for the purpose of assessing compensation as 5%. PW1, the doctor, who issued Ext.P1 disability certificate deposed that he is having 15% disability. A reading of the disability certificate will go to show that there is restriction of movements and even after removal of implant, he will be having possibility of osteoarthrisis (L) knee being caused to his leg. So considering these aspects, the tribunal was not justified in reducing the disability to 5%. But considering all these aspects, we take the disability for the purpose of assessing compensation under the head loss earning capacity/permanent disability as 10%. As per the decision reported in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89(SC)], even if a person is having no permanent income, his future earnings will have to be taken into consideration and for the purpose of age group up to 40 years, the enhancement will have to be considered at 30% and 15% up to 60 years and _**R.C.R.No.2002 of 2010**_ 8 this principle has intended to personal injuries also in the decision reported in _**[AIR 2014 (SC) 1052] Syed Sadiq v. Divisional Manager, United India Insurance Company**_ . If that principle is applied, then he will be entitled to get little more amount under the head loss of earning capacity. Further, as per _**Sarla Verma (Smt) and others v. Delhi Transport Corporation and another**_ (2009(6)SCC 121), the multiplier applicable to the age group of 40 is 14 and not 15 as taken by the tribunal. If calculation is made on the above basis, the appellant will be entitled to get an additional amount of ₹65,520/-(Rs.3000x130% x12x14x10%) instead of 27,000/- awarded by the tribunal₹ under that head. Thereby he will be entitled to an additional compensation of 38,520/- under that head. Considering₹ these aspects, the amount awarded under the head loss of amenities in life also appears to be on the lower side and we enhance the same to 15,000/- from 10,000/-. Thus he will₹ ₹ be entitled to another 5,000- under that head. We do not₹ _**R.C.R.No.2002 of 2010**_ 9 find any reason to enhance the compensation on other heads as tribunal has considered all the aspects in right perspective and awarded just and fair compensation under all other heads. So the appellant is entitled to get an additional compensation of ₹69,520/which the third respondent insurance company is liable to pay at 9% per annum from the date of petition till payment. Three months time is granted to the insurance company to pay this amount. With the above modifications of the impugned award of the tribunal, this appeal is allowed in part and disposed of accordingly. _Sd/-_ ## **( P.N. Ravindran, Judge)** _Sd/-_ ## **(K. Ramakrishnan, Judge)** // True Copy// P.A. to Judge ss& Cl