M.K. Sathar v. Prakash Jyothiram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937** **MACA.No. 1949 of 2006 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 1284/1999 of M.A.C.T., THALASSERY DATED 24-02-2006** **APPELLANT/PETITIONER/4TH SUPPLEMENTARY RESPONDENT:** **--------------------------------------------------** **M.K.SATHAR, S/O.MOIDEEN, MADANKARA HOUSE, NEAR SHADULI PALLI P.O.KOTTALI - KANNUR.** **BY ADVS.SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU** **RESPONDENTS:** **-----------** **1. PRAKASH JYOTHIRAM, HINGNE P.O., TALUK KHATTAU, SATARA DISTRICT MAHARASHTRA.** ## **2. THUKKARAM NAMDEO MALI,** **P.O.BANDUJ, KHATTAU TALUK SATARA DISTRICT - MAHARASHTRA.** **3. NEW INDIA ASSURANCE CO. LTD., PUNE.** **4. ORIENTAL INSURANCE CO. LTD., KANNUR.** **R4 BY ADV. SRI.A.R.GEORGE R3 BY SRI A A ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.1949 of 2006 ....................................................... Dated this the 1[st] day of March, 2016. ## **JUDGMENT** ## **P.N. Ravindran, J:** The appellant is the claimant in O.P.(M.V)No.1284 of 1999 on the file of the Motor Accidents Claims Tribunal, Thalassery. He had in the claim petition prayed for award of the sum of Rs.6,00,000/- as compensation under various heads, for the injuries sustained by him in a motor accident, that took place on 4.8.1998. The appellant had in the claim petition averred that on account of the rash and negligent driving of the first respondent, the lorry which he was driving, collided with the motor car which the claimant was driving and in that accident, he sustained serious injuries. The appellant had in the claim petition averred that he had undergone treatment for the injuries sustained by him in the accident at Bharati Hospital, Pune during the period from 4.8.1998 to 17.8.1998 and at City Hospital, Mangalore during the period from 19.8.1998 to 14.9.1998 and thereafter also as an out patient at the said hospital. The appellant contended that as a result of the injuries sustained by him, he has become permanently incapacitated to do the work of a salesman, which he was doing as on the date of the accident. 2. Though the owner and driver of the lorry were served, they did not enter appearance, with the result, they were set ex parte. The M.A.C.A.No.1949 of 2006 2 third respondent, the insurer of the lorry filed a written statement wherein it admitted the fact that the lorry driven by the first respondent and owned by the second respondent was validly insured by it. It further contended that the first respondent was not negligent and that the claimant could have averted the accident had he been careful in driving the car. The third respondent also contended that the compensation claimed under various heads is exorbitant and excessive and denied the statement in the claim petition that the claimant has become permanently disabled on account of the injuries sustained by him in the motor accident. The supplemental fifth respondent, the insurer of the motor car drivenby the claimant, filed a written statement admitting insurance coverage for the motor car but contending that the claimant is not entitled to get any amount as compensation from his own insurer, for the injuries sustained by him. 3. Before the Motor Accidents Claims Tribunal, the claimant examined himself as PW1 and his employer who had issued Ext.A7 salary certificate as PW2. He had also produced and marked Exts. A1 to A18. On application filed by him, he was examined by a Medical Board constituted by the Superintendent, District Hospital, Kannur and the report submitted by the Medical Board was marked as Ext.X1. No M.A.C.A.No.1949 of 2006 3 evidence oral or documentary was adduced on the side of the respondents. After considering the rival contentions and the evidence on record, the tribunal held that the accident took place on account of the rash and negligent driving of the lorry by the first respondent. The tribunal thereafter awarded the sum of Rs.1,43,400/- as compensation under various heads and directed the third respondent insurer to deposit the said amount together with interest at 9% per annum from the date of petition till 31.12.2001 and at 6% per annum for the period thereafter till realization along with proportionate costs. The claimant has, dissatisfied with the quantum of compensation awarded by the tribunal, filed this appeal. 4. We heard Sri. V.R.K Kaimal, learned counsel appearing for the appellant, Sri.A.A. Ziyad Rahman, leaned counsel appearing for the third respondent as also Sri.A.R. George, learned counsel appearing for the fourth respondent. The tribunal has in the impugned award held that the accident took place on account of the negligence of the first respondent, the driver of the lorry involved in the accident. The driver, owner or the insurer have filed an appeal challenging the said finding. This court can therefore proceed on the basis that the appellant had sustained very serious injuries in a motor accident M.A.C.A.No.1949 of 2006 4 resulting in his hospitalization and treatment as an inpatient for 39 days on account of the rash and negligent driving of the first respondent. Ext.X1 disability certificate discloses that the Medical Board has assessed the whole body disability of the claimant as 22%. The medical records disclose that as a result of the injuries, the claimant cannot walk speedily or stand for long and that there is shortening of his right leg by 2.5 Cms. The medical records also disclose that he had undergone surgery under general anesthesia on 22.8.1998 and later on 8.8.2001 for implant removal. He had also visited City Hospital, Mangalore for review on numerous occasions. The tribunal however declined to accept the disability assessed by the Medical Board on the ground that the Doctor who has issued Ext.X1 has not been examined. We are afraid that the said finding cannot be sustained. In the absence of challenge to the findings of the Medical Board, the disability certificate issued by the Medical Board cannot be ignored on the ground that the doctor who issued it has not been examined. In the instant case, none of the respondents had challenged the authenticity and genuineness of Ext.X1 or disputed the correctness of the findings therein. We accordingly hold that the claimant is entitled to be awarded compensation on the basis that he M.A.C.A.No.1949 of 2006 5 has 22% whole body disability. 5. The tribunal has by the impugned award, awarded only Rs.39,600/- as compensation for loss of earning capacity taking the monthly income of the claimant as Rs.2,000/-, the multiplier as 15 and the percentage of disability as 11%. The tribunal declined to accept Ext.A7 salary certificate on the ground that the signature of PW2 occurring therein does not tally with his signature in the deposition and also for the reason that while in Ext.A7, PW2 is described as the proprietor of a concern, he had, when examined as PW2, deposed that he is the Managing Partner of a firm. Ext.A7 is dated 19.2.2002. PW2 was examined in February 2006. It is possible that his status might have changed from that of a Proprietor to the Managing Partner in the interregnum. We however do not propose to rely on Ext.A7 in the matter of assessing his monthly income. The claimant was aged 47 years on the date of the accident. He was married. He also owned a motor car which he was driving on the date of the accident. Having regard to the ground realities, we are of the opinion that on a modest estimate for the purpose of computation of compensation, his monthly income can be reckoned as Rs.2,500/-. The Apex Court has in _**Syed Sadiq etc. v. Divisional Manager, United India Ins.Co. (AIR**_ M.A.C.A.No.1949 of 2006 6 _**2014 SC 1052),**_ held that even in the case of personal injury claims, an increment in the income to provide for future prospects can be reckoned applying the principles laid down by the Apex Court in _**Rajesh's case**_ (supra) and earlier decisions. The claimant in the instant case was aged 40 years as on the date of the accident. A Division Bench of this court of which one of us (P.N. Ravindran,J) was a member has in M.A.C.A.No.1308 of 2008 held that addition to the income to provide for future prospects can be made for the purpose of computing the compensation payable under the head disability and that such addition is not confined to computation of loss of dependency. Applying the principles laid down in the aforesaid decisions, the compensation payable to the appellant/claimant under the head loss of earning capacity/permanent disability will be Rs.3250x12x14x22/100=Rs.1,20,120/-. Deducting the sum of Rs.39,600/- awarded by the tribunal as compensation, we award to the appellant claimant a further sum of Rs.80,520/- as compensation under the head loss of earning capacity/compensation for permanent disability. 6. The tribunal has awarded the sum of Rs.8,000/- as compensation for loss of earnings for a period of four months taking M.A.C.A.No.1949 of 2006 7 the monthly income as Rs.2,000/-. In view of the fact that we have taken his monthly income as Rs.2,500/-, he will be entitled to a further sum of Rs.2,000/- under that head. The tribunal has not awarded any amount as compensation to the appellant/claimant under the head loss of amenities. The medical records disclose that as a result of the injuries, the appellant/claimant is not able to walk freely and that there is a shortening of his right leg by 2.5 Cms. The appellant who was aged 40 years at the time of the accident will have to put up with the inconvenience for the rest of his life. We are, therefore, of the opinion that on a modest estimate, the sum of Rs.25,000/- can be awarded under the head loss of amenities. The tribunal has by the impugned award, awarded only the sum of Rs.20,000/- compensation for pain and suffering. The medical records disclose that he had undergone treatment as an inpatient for 39 days, had been subjected to surgery on more than two occasions and had undergone periodical reviews. Having regard to the aforesaid facts, we are of the opinion that a further sum of Rs.10,000/- should be awarded as compensation for pain and suffering. On all other heads, the impugned award of the tribunal does not call for any interference. We accordingly award to the appellant /claimant an additional M.A.C.A.No.1949 of 2006 8 sum of Rs.1,17,520/- as compensation over and above the compensation awarded by the tribunal. The third respondent insurer shall deposit the said amount together with interest at 9% per annum from the date of petition (3.9.1999) till the date of deposit, within three months from today. Upon such deposit being made, the amount deposited shall be released to the appellant/claimant. The parties shall bear their respective costs in this appeal. Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge M.A.C.A.No.1949 of 2006 9 M.A.C.A.No.1949 of 2006 10