# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945**
## **MACA NO. 2596 OF 2012**
**AGAINST THE ORDER/JUDGMENT OP(MV) 783/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA**
## **APPELLANT/PETITIONER:**
MADHU.K.K. S/O. KUNJUMON, KANJIRAMTHADATHIL HOUSE, KALLOOR P.O., KALLOORKADU, ENANALLOOR VILLAGE. BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI
## **RESPONDENTS/RESPONDENTS:**
1 SOPHY.KURIAKOSE NACHIRA HOUSE, KADAMATTOM P.O., KOLENCHERY, ERNAKULAM DISTRICT-682 311. 2 SUJITH K.M. S/O. MURALEEDHARAN NAIR, KAVANAL HOUSE, CHEMPILAVU P.O., KIDANGOOR, PALAI, PIN-686 584. 3 THE NATIONAL INSURANCE COMPANY LIMITED SHANTHI PARK, KOLENCHERRY, PIN-682 311. BY ADV SRI.PMM.NAJEEB KHAN
## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR**
**ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
M.A.C.A. No.2596/2012
: 2 :
## **JUDGMENT**
The appellant was the petitioner in OP(MV) No.783/2007 on the files of the Motor Accident Claims Tribunal, Muvattupuzha.
2. The aforesaid claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 27.12.2006. According to him, the motorcycle ridden by him was hit by a car bearing registration No.KL-05P-4811, driven by the 2[nd] respondent, owned by the 1[st] respondent, and insured by the 3[rd] respondent. According to him, he was a toddy tapper with a monthly income of Rs.8,000/- and was 34 years old at the time of the accident. He sustained serious injuries and, it resulted in permanent disablement as well. The claim petition was submitted in such circumstances.
3. The 2[nd] respondent filed a written statement denying negligence on his part. It was also contended that the vehicle was insured with the 3[rd] respondent. The 3[rd] respondent filed a written statement admitting the coverage of the insurance policy for the vehicle. However, they denied any negligence on the part of the 2[nd] respondent, and they also disputed the quantum of compensation.
M.A.C.A. No.2596/2012
: 3 :
4. The evidence in this case consists of oral testimony of PW1 and Exts.A1 to A10 from the side of the appellant. No evidence was adduced from the side of the respondents.
5. After the trial, the tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2[nd] respondent in driving the car and being the insurer of the said vehicle; the 3[rd] respondent was imposed with the liability to pay the compensation. The quantum of compensation was fixed as Rs.1,61,604/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation.
6. Heard Sri. T.K. Koshy, the learned counsel appearing for the appellant and Sri. P.M.M. Najeeb Khan, the learned counsel appearing for the 3[rd] respondent insurance company.
7. The main dispute highlighted by the learned counsel for the appellant is the inadequacy of the compensation awarded under various heads, particularly under the head of disability. He highlights two deformities in the award passed by the tribunal; one relates to the monthly income, and the other one relates to the
M.A.C.A. No.2596/2012
: 4 :
percentage of disability. As regards the monthly income, it is pointed out that even though he claimed a monthly income of Rs.8,000/- from his avocation as a toddy tapper, the tribunal took the monthly income as only Rs.3,000/-. It is discernible from the award that the tribunal did not accept his avocation as a toddy tapper in the absence of any evidence. The learned counsel made available before this Court the copies of the certificates for perusal, which would indicate that the avocation of the petitioner was toddy tapper. He has produced copies of the statement issued by the Welfare Fund Inspector, Toddy Workers Welfare Fund, wherein the remittance of the contribution from the part of the appellant is indicated. Therefore, I am convinced that the appellant was a toddy tapper and hence the monthly income can be fixed on the basis of the same. Of course, it is true that there are no documents to show the exact monthly income. However, when the method of computation evolved from the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, the monthly income of an
M.A.C.A. No.2596/2012
: 5 :
ordinary employee, even without any skills can be taken as Rs.4,500/- for the year 2004. The usual method that is adopted to determine the monthly income for the subsequent years is to add Rs.500/- per year. In this case, the accident occurred in the year 2006 and when the said method of computation is adopted, Rs.5,500/- can be taken for an employee even without any specialised skills. In this case, I have already found that he was engaged as a toddy tapper and therefore, a slightly higher monthly income can be taken. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.6,500/-.
8. The next aspect relates to the percentage of disability. To substantiate the disability, the appellant produced Ext.A8 disability certificate issued by Doctor M.S. Bosalai, who was examined as PW1. In the said certificate, the disability has been certified as 16%. In the said certificate, the following orthopedic difficulties are noted:
- “(1) Right knee: flexion possible upto 80-90 degree from 170-180 degree extension for which 5% disability is assessed.
- (2) Right ankle: Dorsiflexion 90-125 degree for which 5% disability is assessed. Plantar flexion: 90 degree to 125 degree for which 5% disability is assessed.
- (3) Movements of toes, right side limited to 50% of normal for which 1% disability is
M.A.C.A. No.2596/2012
: 6 :
assessed.
- (4) Numbness of foot and Tinel’s sign positive over the leg.
- (5) Not able to squat properly (6) X-ray of right leg showed fracture tibia united and fibula not united. (7) X-ray of right ankle showed fracture calcaneum malunited.”
9. It was on the basis of the same, 16% disability was noted. However, despite the same, the tribunal simply scaled down the percentage of disability to 11%. The said reduction was made by the tribunal on the ground that there is nothing on record to indicate that consequent to the disability suffered, there was a reduction in his earning capacity as he could not produce any documents showing the nature of employment he was engaged. However, in this case, I have already found that he was working as a toddy tapper. In the disability certificate issued by PW1, there is a detailed discussion as to the reasons for assessing the disability as 16% and on perusal of the same, I do not find any discrepancy therein, particularly because the said disabilities are in tune with the nature of injuries mentioned in the other medical records which formed part of the records. Therefore, 16% disability as certified in Ext.A8 can be accepted. As the appellant was 34 years old at the time of the accident, the proper multiplier applicable was 16. Thus,
M.A.C.A. No.2596/2012
: 7 :
while reassessing the compensation for disability with the aboverevised criteria, the compensation would come to Rs.1,99,680/(6500x12x16x16/100). The amount already awarded by the tribunal was Rs.67,320/- and thus, the additional amount would come to Rs.1,32,360/-.
10. Consequent to the revision of monthly income, the appellant would be entitled to some additional compensation under the head of loss of earnings as well. The amount awarded by the tribunal under the said head was for a period of five months. Since the monthly income was revised as Rs.6,500/- the additional compensation under this head would come to Rs.17,500/- (6500x515000).
11. The amount awarded by the tribunal towards pain and suffering, which was Rs.18,000/-, also appears to be on the lower side. I have already extracted the injuries sustained by the appellant in the paragraphs above. It is also evident from the records that he was forced to avail inpatient treatment for a period of 20 days. The nature of the injuries would suggest that even after discharge, he was compelled to continue the treatment for a significant period. The fact that the tribunal assessed the
M.A.C.A. No.2596/2012
: 8 :
compensation for loss of earnings for a period of 5 months also indicates the prolonged treatment availed by him. In such circumstances, he is certainly entitled to an additional amount under the head of pain and suffering. In the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.17,000/- under the said head.
12. The amount awarded by the tribunal towards loss of amenities was Rs.15,000/- only, which also appears to be on the lower side, taking note of the fact that he sustained physical disabilities, which are likely to cause difficulties in pursuing his employment as a toddy tapper. The same is likely to cause difficulties in his daily life as well. In such circumstances, a further sum of Rs.15,000/- is awarded under the said head. Thus, the additional compensation receivable by the appellant is determined as Rs.1,81,860/- (1,32,360+17,500+17,000+15,000).
In the result, this appeal is allowed. The award dated 06.06.2012 passed by the Motor Accident Claims Tribunal, Muvattupuzha in OP(MV) No.783/2007 is hereby modified by granting an additional compensation of Rs.1,81,860/- (Rupees one lakh eighty one thousand eight hundred and sixty only) and the said
M.A.C.A. No.2596/2012
: 9 :
amount shall be deposited by the 3[rd] respondent insurance company with interest at the rate as ordered by the tribunal with proportionate cost within a period of three months from the date of receipt of a copy of this judgment.
It is further ordered that the claimant shall furnish the details of the PAN card, Aadhar card and bank details to enable the 3[rd] respondent to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal.
**Sd/ZIYAD RAHMAN A.A. JUDGE**
ncd/
