MANOJ KUMAR v. SURESH and THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA,** ## **1944** ## **MACA NO. 500 OF 2014** **AGAINST THE AWARD DATED 29.10.2013 IN OP(MV) No.1582/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** MANOJ KUMAR, AGED 37 YEARS, VATTANAPPILLY HOUSE, SREE BHAVAN, KOLAZHY P.O., THRISSUR DISTRICT. BY ADV. SMT.P.K.PRIYA ## **RESPONDENTS/RESPONDENTS:** 1 SURESH, AGED 26 YEARS, NIVRATHIYIL HOUSE, KANJIRAKODE PO, THRISSUR DISTRICT-680 501. 2 THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD, ORISON BUILDING VADAKANCHERY ROAD, KUNNAMKULAM-680 503. BY ADVS. SRI.GEORGE A.CHERIAN SRI.K.JACOB MATHEW SRI.LAL K.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.500 of 2014** 2 ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging the award dated 29.10.2013 in O.P.(M.V) No.1582/2006 on the file of the Motor Accidents Claims Tribunal, Thrissur, at the instance of the appellant. 2. Respondents herein are the respondents before the Tribunal. 3. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the Insurance Company. 4. Brief facts of the case: The allegation of the appellant is that on 17.12.2005 at about 8:30 p.m, while he was riding a motorcycle with his wife and two year old child, due to the rash and negligent driving on the part of the 1[st] respondent, who was the driver-cum-owner of an auto rickshaw bearing 3 ## **M.A.C.A No.500 of 2014** registration No.KL-8/A-2256 at the time of accident, the auto rickshaw dashed against the motorcycle, where the appellant was travelling, and he sustained serious injuries. Immediately after the accident, the appellant and others were taken to Government Hospital, Chelakkara and they were referred to Trichur Heart Hospital, Thrissur. 2[nd] respondent is the insurer of auto rickshaw bearing registration No.KL-8/A- 2256. On the above facts, an application was preferred by the appellant before the M.A.C.T, Thrissur claiming compensation to the tune of Rs.1,85,000/- from respondents 1 and 2. 5. The 1[st] respondent was set ex-parte by the Tribunal. 6. The 2[nd] respondent, Insurance Company filed written statement disputing the accident and negligence while admitting policy. Quantum of compensation also was disputed. 7. The Tribunal acting on documentary ## **M.A.C.A No.500 of 2014** 4 evidence marked as Exts.A1 to A11, granted Rs.45,000/- with 7.5% interest. 8. In this matter, it is submitted by the learned counsel for the appellant that the Tribunal fixed Rs.3,000/- as the monthly income as against the claim of Rs.5,000/- lodged by the appellant, who was working as BSNL agent, aged 37 years during 2006. 9. As far as the income is concerned, Rs.5,000/- can safely be fixed, following the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236,** and the other side also not opposed the same. 10. Another challenge in this appeal is non grant of sufficient compensation under the head disability. It is argued by the learned counsel for the appellant that though as per Ext.A10 disability certificate, 12% permanent physical disability (whole body) was assessed. The ## **M.A.C.A No.500 of 2014** **==> picture [7 x 9] intentionally omitted <==** Tribunal granted Rs.10,000/- as a consolidated sum, without fixing the percentage of disability and without following the procedure for calculating disability. 11. It is submitted by the learned Standing Counsel for the Insurance Company that only clavicle fracture and 4[th ] metacarpal sustained to the appellant and, therefore, the disability as shown in Ext.A10 as 12% cannot be accepted and, therefore, the Tribunal rightly granted Rs.10,000/- as consolidated sum on that count. Thus no further increase is entitled by the appellant. 12. In this case, the appellant sustained fracture right clavical lateral[1] /3 and fracture metacarpal 4[th ] spiral and for which he underwent treatment and the treatment certificate would go to show that he was discharged without infirmities. However, Ext.A10 disability certificate issued by Dr.Jyothish.K, attached to ## **M.A.C.A No.500 of 2014** 6 Government Medical College, Thrissur was produced to show that the appellant sustained 12% disability. In fact, the said doctor not treated the appellant at any point of time and he had examined the appellant only for the issuance of certificate. In such cases, examination of the doctor is necessary to substantiate the authenticity of the certificate and, therefore, the disability shall not be 12% in a case involving only clavicle fracture and fracture for the metacarpal. However, having considered the injuries and treatment thereof, I am inclined to fix 6% disability and the compensation is to re-assessed accordingly. 13. In this matter, the Tribunal granted 'loss of earnings' for a period of two months at the rate of Rs.3,000/- per month. Therefore, I am inclined to increase the same for a period of 4 months at the rate of Rs.5,000/-. Thus, 'loss of earnings' entitled by the appellant is ## **M.A.C.A No.500 of 2014** 7 recalculated as, 5,000 x 4 = 20,000/-. Out of which, Rs.6,000/- was granted by the Tribunal. Thus, **Rs.14,000/-** more is granted under the head 'loss of earnings'. 14. Coming to disability, the multiplier is '15' (age group between 36 and 40), since the age shown in the treatment certificate is 36, in a case where no substantive document otherwise produced to prove the age. Therefore, the 'loss of disability income' is recalculated as follows: 5,000 x 12 x 15 x 6% = 54,000/- Out of which, Rs.10,000/- was granted by the Tribunal. Thus, **Rs.44,000/-** more is granted under the head 'loss of disability income'. 15. The Tribunal granted Rs.10,000/- under the head 'pain and sufferings'. Having considered the injuries and fractures and the treatment thereof, I am inclined to grant **Rs.6,000/-** more under the head 'pain and 8 ## **M.A.C.A No.500 of 2014** sufferings'. 16. In so far as the enhanced amount is concerned, recovery right shall be given to the insurer from the 1[st] respondent, since the Tribunal granted recovery right on the finding that there was no fitness certificate to the offending vehicle at the time of accident. 17. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.1,09,000/- as compensation out of which Rs.45,000/- was granted by the Tribunal and the balance amount of **Rs.64,000/-** (Rupees Sixty Four Thousand Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 2[nd] respondent, Insurance Company from the date of petition till the date of deposit or realisation. It is specifically ordered that the Insurance Company can realise the entire award amount including the enhanced compensation along ## **M.A.C.A No.500 of 2014** **==> picture [7 x 9] intentionally omitted <==** with interest thereof from the 1[st] respondent, the insured, immediately on deposit of the same before the Tribunal. The Insurance Company is directed to deposit the amount in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww