Mahesh v. Abhesh S/o Santha and The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937 ## **MACA.No. 1955 of 2015 () -------------------------** (AGAINST THE AWARD IN OPMV 407/2010 of MACT, IRINJALAKUDA DATED 20-04-2015) APPELLANT(S)/PETITIONER: ------------------------------- MAHESH S/O. MANOJ MOHAN, SREENARAYANA VILASOM, KADAMBODE DESOM VELLIKULANGARA VILLAGE, PADI P.O., MUKUNDAPURAM TALUK THRISSUR DISTRICT. BY ADV. SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS 1 & 3: ------------------------------------ 1. ABHESH S/O. SANTHA, THRATHILTHAMBIL HOUSE OLLUKKARA - 680 655. 2. THE ORIENTAL INSURANCE COMPANY LTD MARKET P.O., MUVATTUPUZHA - 686 661. R2 BY ADV. SMT.REKHA NAIR BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **M.A.C.A.No.1955 OF 2015** ......................................................................... **Dated this the 7[th] January, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Inadequacy of the compensation awarded by the Tribunal is the subject matter of challenge in this appeal preferred by the claimant. 2. When the appellant was proceeding along the road on 17.11.2009 on a motor cycle bearing No.KL.45B/7155, he was knocked down by a Goods Carriage bearing No.KL.09S/4135, owned, driven and insured by the respondents 1 to 3 before the Tribunal, causing serious injuries, which was sought to be compensated by filing a claim petition before the Tribunal. 3. The owner and driver of the vehicle were set ex parte. **2** ## **M.A.C.A.No.1955 OF 2015** The claim was contested by the Insurance Company on general grounds. The evidence adduced before the Tribunal consists of oral testimony of P.Ws.1 and 2 (doctors) and the documents produced were marked as Exts.A1 to A14. Based on the said evidence on record, the Tribunal arrived at a finding that the accident was only because of negligence on the part of the driver of the Goods Carriage and quantum of compensation was fixed accordingly. 4. The case put forth by the appellant before the Tribunal was that he was employed in HDFC Bank Ltd and was drawing monthly salary of Rs.10,000/-. The injuries sustained were also stated as serious and it was accordingly, that a total compensation of Rs.4,21,000/- was claimed. The Tribunal awarded amounts under various heads reckoning the notional monthly income at Rs.4000/-, holding that the employment and income were never proved before the Tribunal. It was also observed that there was no leave record or loss of salary for the period of treatment. The whole body disability of 12.97% **3** ## **M.A.C.A.No.1955 OF 2015** certified by the doctor, as per Ext.A9 disability certificate was reduced by the Tribunal to 10% and compensation for disability was fixed accordingly. A total compensation of Rs.1,53,600/was awarded, which was directed to be satisfied with interest at the rate of 7.5% per annum from the date of the petition, which is sought to be enhanced by filing this appeal. 5. Heard the learned Counsel for the appellant and the learned Counsel appearing for the Insurance Company. 6. On going through the facts and figures, we find that the injuries sustained by the appellant are quite serious, as taken note of by the Tribunal in paragraph 7 of the AWard, which is reproduced below for convenience of reference: _“Ext.A3deals with the injuries suffered out of the motor traffic accident as multiple cut wound of ® upper arm lateral aspect, lacerated wound ® knee, multiple abrasions on (R)foot, contusion of (L) parietal area and (L) eye brow and forehead, open fracture P2 right big toe and (R)knee and lacerated wound (R)arm.”_ 7. Based on the said injuries, the extent of disability was **4** ## **M.A.C.A.No.1955 OF 2015** certified by the concerned doctor as 12.97%, vide Ext.A9. This was sought to be substantiated by examining the concerned doctor as P.W.1. No contra evidence was adduced from the part of the Insurance Company. Despite this, the Tribunal reduced the same to 10% and the basis for pursuing such exercise is not known; more so when there was no expertise for the Tribunal to have pursued any such exercise. Since the correctness of the certificate as aforesaid or as to the version of the doctor was never subjected to challenge from the part of the Insurance Company, we find it appropriate to restore the entire extent of disability, i.e. 12.97%, as certified by the doctor vide Ext.A9, to calculate the compensation. 8. With regard to the monthly income of the appellant, it is true that the version as to the employment in HDFC Bank or as to the income generated by virtue of such engagement was never proved, but for producing a copy of the document as Ext. A12 ( stated as salary statement). During the course of hearing, the learned Counsel for the appellant concedes that it was not a **5** ## **M.A.C.A.No.1955 OF 2015** permanent employment, but an engagement on some commission basis. The extent of business, terms and conditions, the income generated and such other circumstances could have been proved by adducing positive evidence, procuring necessary records from the so called employer, which in fact has not been done and as such, the Tribunal cannot be blamed for not accepting Ext.A12. Be that as it may, the fact remains that the accident was in the year 2009 and the appellant was 24 years at the time of the accident. The learned Counsel for the petitioner submits across the Bar that the appellant is having Post Graduate degree (M.Com). This Court does not proceed to deal with that aspect in so far as such aspect was never brought to the notice of the Tribunal, to have proper deliberation. Still, by virtue of the economic conditions prevailing as on the date of the accident and the age of the appellant, we find it appropriate to reckon 50% towards the notional income reckoned by the Tribunal, to re-fix the same at Rs.6000/- for working out the compensation. 9. The amounts awarded by the Tribunal under different **6** ## **M.A.C.A.No.1955 OF 2015** ## heads are as follows: |**Head**|**Amount**<br>**(Rs.)**| |---|---| |Loss of earnings|16000| |Transportation expenses|1000| |Damage to clothings|500| |Medical expenses|21990| |Bystander's expenses|2100| |Pain and suffering|15000| |Loss of amenities|15000| |Permanent disability|**81600**| |Total|**153600**| 10. The Tribunal has awarded compensation for loss of earning only for a period of 4 months, which is found inadequate. We find it appropriate to reckon it for six months, i.e. 6000 x 6=36000/-. After giving credit to the sum of Rs.16000/-, the balance comes to **Rs.20000/** -. 11. For awarding compensation towards permanent **7** ## **M.A.C.A.No.1955 OF 2015** disability, the Tribunal had adopted the multiplier of '17', which ought to have been '18' in the light of the ruling rendered by the Apex Court in _**Sarla Verma vs. Delhi Transport Corporation [**_ 2009(6) SCC 121]. On re-working the compensation under the above head, it comes to Rs.1,68,091.20/- (Rounded to Rs.168090/-)(i.e.6000 x 12 x 18 x 12.97/100). After deducting the sum of Rs.81600/- already awarded by the Tribunal, the balance compensation comes to **Rs.86490/** -. Only a sum of Rs.15000/- each has been awarded by the Tribunal towards loss of amenities and pain and suffering. We find it appropriate, considering the nature and extent of injuries, to award a sum of - Rs.25000/ each under the above heads, resulting in a balance compensation of **Rs.10000/-** each under the above heads. Thus, the total balance compensation comes to **Rs.1,26,490/-(** Rupees one lakh twenty six thousand four hundred and ninety only), which shall be satisfied with interest at the rate of 9% per annum from the date of the petition, till realisation. Since the policy is admitted, the third respondent/Insurance Company is directed to **8** ## **M.A.C.A.No.1955 OF 2015** deposit the entire amount within one month from the date of receipt of a copy of the judgment. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk