Manojkumar S.R. v. Director General of Police, Kerala Police; District Insurance Officer, Kerala State Insurance Department; G.L. Sudhakumari; United India Insurance Co. Ltd.

MACA NO. 1634 OF 2007 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943** **MACA NO. 1634 OF 2007** **AGAINST THE ORDER/JUDGMENT IN OPMV 2165/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRIVANDRUM** ## **APPELLANT/S:** MANOJKUMAR S.R., MUDUMBIL VEEDU, KOCHIRAVILA, MELAPURAM,, MANACAUD P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL ## **RESPONDENT/S:** 1 DIRECTOR GENERAL OF POLICE KERALA POLICE, THIRUVANANTHAPURAM. 2 THE DISTRICT INSURANCE OFFICER, KERALA STATE INSURANCE DEPARTMENT, THYCAUD,, THIRUVANANTHAPURAM. 3 G.L. SUDHAKUMARI, T.C.49/999 AMBADI, CHIRAMUKKU, MANACAUD P.O.,, THIRUVANANTHAPURAM. 4 THE MANAGER, UNITED INDIA INSURANCE CO. LTD., P.B.NO.552,, MALANKARA BUILDING, V.J.T.HALL ROAD, PALAYAM,, THIRUVANANTHAPURAM. BY ADVS. GOVERNMENT PLEADER SRI.G.P.SHINOD SRI.N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1634 OF 2007 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2165/2002 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 26.03.2002. It was his case that, on the above said date, while he was riding pillion on a scooter bearing registration No.KL-01 P 1410 from Ambalathara to Manacaud, a motor cycle bearing registration No.KL-01-D-6375, ridden by a Police Officer under the 1[st] respondent, hit the scooter on which the appellant was traveling. The appellant sustained multiple injuries and treated at the Medical College Hospital, Thiruvananthapuram. He was referred to the Government Opthalmologic Hospital, Thiruvananthapuram, where he was admitted and treated as an inpatient. The appellant had sustained a fracture of his left foot, rupture of eye globe with profuse bleeding and loss of vision to the left eye. The appellant was a medical representative by profession and was earning a monthly income MACA NO. 1634 OF 2007 3 of Rs.5,000/-. The motor cycle was owned by the 1[st] respondent and insured with the 2[nd] respondent. The scooter was owned by the 3[rd] respondent and was insured with the 4[th] respondent. Hence the appellant claimed a compensation of Rs.7,44,000/from the respondents, which claim was limited to Rs.5,00,000/-. 3. The respondents 1 and 3 did not contest the proceeding. 4. The respondents 2 and 4 had filed separate written statements. The 2[nd] respondent disputed that there was negligence on the rider of the motor cycle. Nevertheless, the 2[nd] respondent had admitted that the motor cycle had a valid insurance coverage. The 4[th] respondent had admitted that the scooter had a valid insurance coverage. But, it was asserted that the accident occurred due to the negligence of the rider of the motor cycle. 5. The appellant had examined himself as PW1 and marked Exts.A1 to A7 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 2[nd] respondent an amount of Rs.15,000/- with interest at the rate of 7.5% per MACA NO. 1634 OF 2007 4 annum from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri. R.T. Pradeep, the learned counsel appearing for the appellant/petitioner, the learned Government Pleader appearing for the respondents 1 and 2, Sri.G.P. Shinod, the learned counsel appearing for the 3[rd] respondent and Sri. Mohammed Usman, the learned counsel appearing for the 4[th] respondent. 9. The question that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A3 final report filed by the Police proves that the accident was caused due to negligence of the rider of the motor cycle. Indisputably, the 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the motor cycle. The respondents have not let in any evidence to discredit Ext.A3 final report. Therefore, it is the 2[nd] respondent, who is to indemnify the liability of the 1[st] respondent arising out of the accident. MACA NO. 1634 OF 2007 5 ## **Income** 11. The appellant had claimed that he was a medical distributor by profession and was earning a monthly income of Rs.5,000/-. For want of materials, the Tribunal fixed the monthly income of the appellant notionally at Rs.2,000/-. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2002, I re-fix the notional monthly income of the petitioner at Rs.3,500/-. ## **Loss of earnings** 14. It is proved and established that the appellant had suffered a fracture to his left foot, that his left eye globe was ruptured and that he had a loss of vision to his left eye. He was initially treated at the Medical College Hospital, Thiruvananthapuram and, thereafter, referred to the MACA NO. 1634 OF 2007 6 Opthalmologic Hospital, Thiruvananthapuram. Then, he was again treated at the General Hospital, Thiruvananthapruam. In the above factual background, I hold that he was indisposed for a period of three months. 15. In view of the refixation of the notional monthly income of the appellant at Rs.3,500/- per month, I award the appellant an amount of Rs.10,500/- towards 'loss of earnings'. ## **Disability** 16. The appellant was examined as PW1 and produced and proved Exts.A1 to A7. Ext.A4 discharge card, substantiates that the appellant had lost his left eye vision earlier due to glaucoma. It is also noted that he had an optic atrophy and aliary. Nonetheless, it was noted that the appellant had suffered a rupture of left eye globe with profuse bleeding. Subsequently, the appellant appeared before the Medical Board attached to the Medical College Hospital, Thiruvananthapuram, who certified that the appellant has a visual disability of 30%. 17. The Tribunal did not taken into consideration Ext.A7 disability certificate for the reason that there was no nexus between the loss of vision to the left eye of the appellant with the accident that occurred on 23.06.2002, particularly because MACA NO. 1634 OF 2007 7 in Ext.A4 it was written that the appellant had lost his vision due to glaucoma earlier. 18. In **Raj Kumar vs. Ajay Kumar** : [2011 (1) KLT 620], the Honourable Supreme Court has categorically held that in an injury claim, if the Tribunal is not satisfied with the disability certificate before it, the Tribunal has to refer the injured/claimant to a duly constituted Medical Board. Similarly it was observed that, what needs to be looked into an injury claim is the functional disability of the injured/claimant. 19. In the case at hand the appellant himself produced Ext.A7 disability certificate issued by the Medical Board attached to the Medical College Hospital, Thiruvananthapuram wherein his visual disability was assessed at 30%. 20. On a co-joint reading of Ext.A7 disability certificate with Ext.A4 discharge card it can be gathered that the appellant had lost his vision due to glaucoma. However, it was also noted that he had a rupture of left eye globe with profuse bleeding. Taking into account the injury sustained to the appellant to his left eye read with the disability assessed in Ext.A7, I fix the 'functional disability' of the appellant, taking note of the fact that he was a medical representative, at 10%. MACA NO. 1634 OF 2007 8 ## **Multiplier** 21. The appellant was aged 18 years at the time of the accident. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '18'. ## **Loss due to disability** 22. Taking into account the above mentioned factors, namely, the notional monthly income of the petitioner at Rs.3,500/-, his functional disability at 10% and the multiplier at 18, I award him an amount of Rs.75,600/- for 'loss due to disability'. ## **Pain and sufferings and loss of amenities** 23. The Tribunal had awarded an amount of Rs.5,000/each under the above two heads. 24. Taking note of the fact that the appellant was only 18 years at the time of the accident, that he has suffered a functional disability of 10% and that he was indisposed for a period of three months, I award him a further amount of Rs.5,000/- each under the aforesaid heads. 25. With respect to the other heads of compensation, I find MACA NO. 1634 OF 2007 9 that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [459 x 421] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by the awarded by<br>Tribunal (in this Court<br>Rs.) (in Rs.)<br>1. Loss of earnings 2,000 10,500<br> 2. Transportation expenses 500 500<br>3. Damage to clothing 250 250<br>4. Bystander expenses 500 500<br>5. Extra nourishment 500 500<br>6. Medical expenses 1,000 1,000<br>7. Pain and sufferings 5,000 10,000<br>8. Loss of amenities 5000 10,000<br>9. Loss due to disability 0 75,600<br>Total 10,450 108850<br>rounded to<br>Rs.15,000<br>**----- End of picture text -----**<br> MACA NO. 1634 OF 2007 10 In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.93,850/- with interest at the rate of 7.5% per annum and a cost of Rs.10,000/-. The 2[nd] respondent is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/15.01.22