Majeed M.K. v. Joy Thomas and Pradeep M.C. and The Branch Manager, Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940** ## **MACA.No. 12 of 2013** **AGAINST THE AWARD IN OPMV 1135/2005 OF THE MACT MUVATTUPUZHA DATED 18-04-2012** ## **APPELLANT/PETITIONER:** **MAJEED M.K. S/O.KADER, RESIDING AT MARATTICHALIL HOUSE, THENKODE, OONNUKAL, KOTHAMANGALAM.** **BY ADVS. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU** ## **RESPONDENT/RESPONDENTS:** |**1**|**JOY THOMAS**| |---|---| ||**S/O.THOMAS, MOOKUINTHOTTATHIL HOUSE, MANGUVA,**| ||**KALLARKUTTY P.O., CHINNAR, IDUKKY, PIN-685562.**| |**2**|**PRADEEP M.C.**| ||**S/O.LUKA, MAKIYIL HOUSE, MURIKKASSERY P.O.,**| ||**IDUKKI-685602.**| |**3**|**THE BRANCH MANAGER**| ||**THE ORIENTAL INSURANCE CO.LTD., JYOTHI SUPER BAZAR,**| ||**THODUPUZHA, PIN-685584.**| ||**BY ADV. SMT.A.SREEKALA SC FOR R3**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.12/2013 2 ## **JUDGMENT** This appeal is directed against the award dated 18.4.2012 of the Motor Accidents Claims Tribunal, Muvattupuzha (for short 'the Tribunal) in O.P(MV) No.1135/2005. The appellant is the injured in a motor accident occurred on 19.04.2004. According to him, the Tribunal has awarded unjust and unreasonable sums under various heads of compensation. Accordingly, filing this appeal, he seeks for enhancement of the compensation under those heads. 2. Before adverting to the contentions of the appellant in the appeal, it is relevant to have a brief discussion on the facts of the case. On 19.12.2004 at about 12.15 pm the petitioner was riding a motor cycle bearing registration No.KL-17A/5694 from Thenkode to Oonnukal, a bus bearing registration No.KL-6/9329 dashed against the motor cycle and thereby he had sustained fracture on both bones of left leg. Petitioner was treated at Specialist Hospital, Ernakulam as inpatient for a period of 29 days. He was subjected to various procedures as part of treatment. He had expended huge sum towards treatment. The accident was allegedly occurred due to the rash and negligent driving of the bus by its driver. Therefore, seeking for a sum of Rs.5,39,000/- as MACA.No.12/2013 3 compensation, an application was moved as above before the Tribunal. 3. Before the Tribunal, he has adduced oral evidence as PW1, examined an independent witness as PW2 and the medical practitioner under whom he had availed treatment as PW3. He had also adduced documentary evidence as Exts.A1 to A14. 4. In the claim petition, the driver, owner and insurer were arrived as respondents 1 to 3. Respondents 1 and 2 remained exparte before the Tribunal. The 3[rd] respondent, injured has raised a plea that the bus was not having a valid permit and fitness certificate. The quantum of compensation and negligence of the driver of the bus was also disputed. Ext.B1 policy certificate was marked in evidence by the 3[rd] respondent. 5. The Tribunal had appreciated the evidence and arrived at the finding that the accident was occurred due to the rash and negligent driving of the bus by its driver. The Tribunal had also found that the bus was plying without a fitness certificate at the relevant time of accident. On appreciating the oral as well as the documentary evidence adduced by the petitioner, the Tribunal has arrived at a compensation of Rs.1,82,411/- against Rs.4,39,000/-, claimed by the petitioner. Aggrieved by the quantum of compensation so awarded by the Tribunal that the petitioner has MACA.No.12/2013 4 approached this Court in the captioned appeal seeking for enhancement. 6. Smt.Aney Paul, the learned counsel for the appellant has contended that the compensation arrived at by the Tribunal towards loss of earning and disability are meagre sums, for the reason that the monthly income was fixed by the Tribunal only as Rs.2,500/- for the purpose of calculation. According to the learned counsel, the petitioner got the driving license marked in evidence, as Ext.A11. The said driving license was found issued by a company namely MD, SPC, PDH Project Company Samsung, Saudi Arabia. According to the learned counsel, Ext.A11 discloses that the petitioner was engaged as a driver by the said company, but the Tribunal was not convinced of the genuineness of the said document and therefore discarded it. In the absence of any proof to establish the occupation and monthly income, the Tribunal had fixed the monthly income as Rs.2,500/-. According to the counsel Rs.2,500/- so fixed by the Tribunal is unjust and unreasonable when viewed in the backdrop of the year of accident, i.e. 2004. The learned counsel canvassed for a re-fixation of the monthly income and calculation of compensation on the basis of the refixed monthly income. The further contention advanced by the learned counsel was that the compensation awarded by the Tribunal under MACA.No.12/2013 5 the heads pain and suffering and loss of amenities are also meagre sums and interference of this Court is warranted. 7. Smt.A.Sreekala, the learned counsel on behalf of the insurer has submitted that the Tribunal has appreciated the evidence in its proper perspective and awarded just and reasonable sums as compensation under various heads. According to her interference is totally unwarranted. 8. The petitioner himself was examined as PW1. According to him he was employed by a company named MD, SPC PDH Project Company Samsung, Saudi Arabia, as a driver with a monthly salary of Rs.25,000/-. According to him his employment as a driver is well evidenced from Ext.A11 and the Tribunal failed to appreciate the same in the proper perspective. Ext.A11 is elaborately dealt with in paragraph 8 of the impugned award. The Tribunal had found on a glance of Ext.A11 that the signature of the petitioner is not affixed therein and being unconvinced of its genuineness, discarded the same. 9. I had a glance at Ext.A11, a copy of which is handed over across the bar by the learned counsel. It is relevant to notice from the copy of Ext.A11 that the signature of the petitioner does not find a place therein. Therefore, the Tribunal cannot be found fault with for not placing reliance on Ext.A11. MACA.No.12/2013 6 10. The Tribunal has taken Rs.2,500/- as monthly income of the petitioner for the purpose of calculation of compensation. It is evidenced from Ext.A12, the passport of the petitioner that he was aged 48 years at the relevant time of accident. The accident was occurred in the year 2004. Therefore, fixation of monthly income notionally as Rs.2,500/- in the view of this Court is on the lower side. The Apex Court has fixed Rs.4,500/- as monthly income in the case of a coolie worker in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.** [(2011) 13 SCC 236]. Therefore, this court is justified in fixing Rs.6,000/- as the monthly income of the petitioner in the case on hand. It is pertinent to note from the impugned award that the Tribunal has taken one year for fixation of compensation for loss of earning. The period taken by the Tribunal appears to this Court reasonable when viewed in the backdrop of the injuries sustained by the petitioner and therefore, is maintained. When calculation is done by taking the refixed monthly income of Rs.6,000/- for one year, the quantum of compensation payable under the head loss of earning will be Rs.72,000/-. Rs.30,000/- is already awarded by the Tribunal under the said head. The said sum when deducted from the sum now arrived at by the Tribunal, the sum payable as compensation additionally under the head loss of earning will be Rs.42,000/-. MACA.No.12/2013 7 11. The Tribunal has arrived at the quantum of compensation under the head disability as Rs.46,800/-. When the multiplicand is taken as Rs.72,000/- (6,000 x 12) and maintaining the other factors the compensation payable under the head disability will be Rs.1,12,320/-(6000x12x13x12/100). Therefore, a sum of Rs.65,520/-(112320-46800) will be payable as compensation under the head permanent disability additionally. 12. As per the impugned award, a sum of Rs.18,000/- and Rs.15,000/- respectively have been awarded towards pain and suffering and loss of amenities. The injuries sustained by the petitioner is disclosed from the description made by the Tribunal in the impugned award based on Ext.A6 wound certificate and Ext.A7 discharge summary. It is relevant to notice from Ext.A6 that the petitioner had sustained fracture of both bones of left leg in the accident. From Ext.A7, the discharge summary, it is pertinent to note that the petitioner had undergone wound debridement, excision of loose fragments of bones of left leg and application of external fixator as treatment procedures. It is discerned from the discussion made by the Tribunal in the impugned award that after the removal of external fixator, bifocal ilizarov fixator was applied. Thereafter, he was also subjected to partial weight bearing walking and knee mobilisation. He was MACA.No.12/2013 8 treated as impatient for a period of 29 days. Despite the narration of the above aspects, the Tribunal has arrived at Rs.18,000/- and Rs.15,000/- respectively under those heads, which in the view of this Court is unreasonable and disproportionate. Accordingly, this Court is inclined to enhance the sums by granting Rs.7,000/- and Rs.5,000/- respectively under those heads. In the fixation as above, the petitioner is found entitled to get a total sum of Rs.1,19,520/- as enhanced compensation. 13. As already stated, the Tribunal has found that the offending vehicle involved in the accident was not having fitness certificate at the relevant time of accident and accordingly recovery of the amount of compensation from the 1[st] respondent owner was ordered, in favour of the insurer/3[rd] respondent. In the result, the appeal stands allowed. The petitioner is found entitled to get a sum of **Rs.1,19,520/- (Rupees one lakh nineteen thousand five hundred and twenty only)** over and above the sum already awarded by the Tribunal. Needless to say that the said amount will carry interest at the rate 8% per annum from the date of the claim petition till the date of realisation. The insurer, who was arrayed as 3[rd] respondent shall deposit Rs.1,19,520/- with interest as directed to be paid, within a period of three months from the date of receipt of a copy of this judgment. MACA.No.12/2013 9 The 3[rd] respondent shall get the sum awarded, recovered from the 1[st] respondent, owner/insured of the vehicle. No order as to costs. **Sd/-** **MARY JOSEPH** ab **JUDGE**