M.G. Chandran v. Lalson, Mathai and National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024/2ND PHALGUNA, 1945** **MACA NO. 524 OF 2013** **AGAINST THE AWARD DATED 28.09.2011 IN OP(MV) 212/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** M.G.CHANDRAN S/O. GOVINDAN, MAMBILLIL HOUSE, KUTTIKUZHI KARA, VENGOOR VILLAGE. BY ADV SRI.C.DILIP ## **RESPONDENTS/RESPONDENTS:** 1 LALSON S/O. KRISHNAN, KIZHAKKEPURATHUKUDI HOUSE, KOTTAPADY VILLAGE, KOTTAPADY, KOTHAMANGALAM, PIN-686691. 2 MATHAI S/O. KURIAKOSE, KUTTIKKADAN HOUSE, PLAMUDY P.O., KOTTAPADY, KOTHAMANGALAM, PIN-686691. 3 THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., MULLAPPILLY BUILDING, PERUMBAVOOR, PIN-683542. BY ADVS. SRI.P.K.MANOJKUMAR **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.524/2013 : 2 : ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.212/2007 on the files of the Motor Accident Claims Tribunal, Muvattupuzha. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 18.12.2005. According to him, the accident occurred when the appellant was travelling as a pillion rider on a motorcycle bearing registration No.KL-7N-7358, it was hit by a jeep bearing registration No.KL-7D-3535, driven by the 1[st] respondent in a rash and negligent manner. The 2[nd] respondent was the owner of the said jeep and it was insured with the 3[rd] respondent. The appellant was a carpenter by profession with a monthly income of Rs.3,000/-. According to him, he sustained very serious injuries and it resulted in physical disability as well. The claim petition was submitted in such circumstances seeking enhancement of compensation. 3. The 3[rd] respondent contested the matter by filing a written statement wherein they admitted the coverage of the policy. However, they disputed the negligence and the quantum of M.A.C.A. No.524/2013 : 3 : compensation. 4. To substantiate the contentions the appellant examined PW1 and PW2 and Exts.A1 to A11 were marked. The copy of the policy was marked as Ext.B1. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the 1[st] respondent in driving the jeep and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,45,959/- and the said amount was directed to be deposited by the 3[rd] respondent, with interest at the rate of 8% per annum from the date of petition till realisation and with proportionate costs. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 6. Heard Sri. C. Dilip, the learned counsel appearing for the appellant and Sri. P.K. Manoj Kumar, the learned counsel appearing for the 3[rd] respondent. 7. The main contest in this case relates to the quantum of compensation. The learned counsel for the appellant submits that the amount awarded by the tribunal under the head of disability is grossly inadequate. It was pointed out that, the tribunal accepted M.A.C.A. No.524/2013 : 4 : the monthly income as Rs.2,500/- only, which is grossly inadequate. After considering the materials placed on record, I find force in the said contention. It is to be noted that the accident in this case occurred in the year 2005. Under no circumstances, the monthly income of Rs.2,500/- could be treated as a reasonable monthly income for the said period. In this regard, it is to be noted that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236],** the Hon’ble Supreme Court was pleased to fix the monthly income of an ordinary worker without any skills as Rs.4,500/- for the accident that occurred in the year 2004. Therefore, the monthly income for 2005 could be reasonably fixed as Rs.5,000/-. At this juncture, the learned counsel for the 3[rd] respondent would point out that the monthly income claimed in this case was Rs.3,000/- and therefore, any enhancement beyond the same cannot be granted. I am not inclined to accept the contention. This is particularly because, as far as the monthly income of a carpenter is concerned, the same may not be static as it varies from month to month, subject to the work he gets. Therefore, much emphasis cannot be given with respect to the monthly income claimed in the claim petition. M.A.C.A. No.524/2013 : 5 : Moreover, the mere fact that a lesser monthly income was shown in the claim petition would not preclude this Court from taking a higher monthly income, if the facts and circumstances warrant the adoption of such a higher monthly income, to ensure just compensation to the victim. In **Minu Rout and another v. Satya Pradyumna Mohapatra and others [2013 (10) SCC 695],** the Hon’ble Supreme Court was pleased to take the monthly income at a higher rate than claimed in the claim petition. Therefore, to ensure just compensation to the victim, I deem it appropriate to fix it as Rs.5,000/-. 8. The next aspect to be considered is the percentage of disability. As per the Ext.A9 certificate, the percentage of disability was certified as 20% and the Doctor who issued the said certificate was examined as PW1 as well. However, without giving sufficient reason, the tribunal scaled down the percentage of disability by fixing it to 15%. After going through the materials placed on record, I am of the view that, the finding of the tribunal in this regard is liable to be interfered with. When a disability certificate issued by a competent Doctor is produced on record and the said certificate was proved by examining the Doctor who issued the same, under M.A.C.A. No.524/2013 : 6 : no circumstances the tribunal would be justified in reducing the percentage of disability, unless the said certificate contains serious discrepancies warranting such reduction. In this case, on going through the contents of the said documents and the evidence of PW1, I do not find any justifiable reason for the reduction of the percentage of disability certified therein. Therefore, I deem it appropriate to take the percentage of disability as 20%. The learned counsel for the insurance company points out that the tribunal applied the multiplier of 16 which was not proper. In the light of **Sarla Varma v. Delhi Transport Corporation [2010(2)KLT 802 (SC)]** the proper multiplier should have been 15 as the appellant was aged 37 years at the time of the accident. The said contention is to be accepted as it is in tune with the principles laid down in **Sarla Varma (supra).** Thus while reassessing the compensation with the above revised criteria, the amount of compensation for disability comes to Rs.1,80,000/- [5000x12x 15x20%]. The amount already awarded by the Tribunal under this head is Rs.72,000/- and thus the additional compensation receivable by the appellant would come to Rs 1,08,000/-. 9. The next head which requires consideration is loss of M.A.C.A. No.524/2013 : 7 : ## earnings. The tribunal awarded compensation under this head for a period of three months. However, in this case, the appellant had sustained the following injuries and disabilities. - “(i). Left knee: Flexion possible upto 70-80 degree from 160 degree extension for which 11% disability is assessed. - (ii) Right shoulder movements limited terminal 10-20 degrees there is acromioclavicular dislocation clinically for which disability is assessed. - (iii) There is slight bowing of left leg and pain on walking over and there is slight limping. - (iv) Tip of left little finger is amputated for which 1% disability is assessed.” Consequent to the same, the appellant had undergone inpatient treatment for 15 days. The appellant was a Carpenter by profession. When considering the nature of the injuries evidently, the same in all probabilities would have prevented him from pursuing his avocation at least for a period of five months. Therefore, the compensation for loss of earnings is to be granted for five months. Since, I have already revised the monthly income as Rs.5,000/-, the additional compensation under this head comes to Rs.17,500/- (5000x5-7500). 10. The amount awarded by the Tribunal towards pain and suffering was Rs.18,000/-. Considering the nature of the injuries as referred to above and the period of treatment which he had M.A.C.A. No.524/2013 : 8 : undergone, both as an inpatient and outpatient, I find that the said amount is on the lower side. In the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.12,000/under the said head. Similarly, the amount awarded towards loss of amenities is only Rs.12,000/- which is on the lower side. The injuries sustained by the appellant resulted in physical disability and the same would certainly affect the quality of life of the appellant. Therefore, he has to be reasonably compensated for the same. Therefore, a further sum of Rs.18,000/- is awarded under the said head. Thus, the total additional compensation is determined as Rs.1,55,500/- (1,08,000 + 17,500 + 12,000 + 18,000). In the result, this appeal is allowed. The award dated 28.09.2011 passed by the Motor Accident Claims Tribunal, Muvattupuzha in O.P.(M.V.) No.212/2007 is hereby modified by granting additional compensation of Rs.1,55,500/- (Rupees one lakh fifty-five thousand and five hundred only) and the said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal and with proportionate cost, within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, as the delay of 230 days was condoned M.A.C.A. No.524/2013 : 9 : by this Court on the condition that the appellant shall not be entitled to interest for the said period, the 3[rd] respondent shall be at liberty to exclude the said period, while computing the interest on the additional compensation. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company 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 same amount before the Tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/scs