# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE MARY JOSEPH**
**FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940**
**M.A.C.A.No. 4136 of 2017**
**AGAINST THE AWARD IN OPMV 314/2010 of ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA DATED 05-08-2017**
## **APPELLANT/PETITIONER:**
**MOHANA KUMARAN PILLAI AGED 60 YEARS,S/O.KRISHNA PILLAI,MADATHIL THEKKATHIL,KIDANGAYAM MURI,NOORANADU VILLAGE,MAVELIKKARA TALUK.**
**BY ADV. SRI.NIRMAL V NAIR**
## **RESPONDENTS/RESPONDENTS:**
**THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD. MEDAYIL COMPLEX,MEDAMUKKU,KAYAMKULAM-690572.**
**BY ADV. SRI.LAL GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.4136 of 2017** 2
## **JUDGMENT**
The appellant is the petitioner before the Additional Motor Accidents Claims Tribunal, Mavelikara (for short 'the Tribunal') in O.P.(M.V.)No.314 of 2010. His grievance was that the Tribunal had overlooked material pieces of evidence and thereby awarded unjust and unreasonable compensation. Accordingly, the appeal on hand was preferred by him seeking for enhancement of compensation.
2. At about 6.15 p.m. on 06.10.2008, the petitioner who was standing at the bus stop in Para Junction by the side of Kayamkulam-Punalur Public road was knocked down by a Maruti Car bearing registration No.KL-4J-9720 and thereby sustained serious injuries. He was treated at NSS Medical Mission hospital, Pandalam. He had sustained a fracture on his femur. He was employed abroad as an Offset Printing Machine Operator in a company at Sharjah and was getting 3000 Dirhams monthly. Alleging that the accident was occurred due to rash and negligent driving of the car bearing registration No.KL-4J-9720 by its driver and seeking for a sum of Rs.3,00,000/- as compensation for the injuries sustained in the accident, the claim petition as above was
**MACA.No.4136 of 2017** 3
preferred by him before the Tribunal. The driver, owner and insurer of the car were arrayed as respondents 1 to 3 in the claim petition.
3. Respondents 1 and 2 remained _ex parte_ in the claim petition. The third respondent had filed written statement admitting insurance coverage of the car as on date of accident. It was contended that the driver of the car was not rash and negligent in driving the same at the relevant time and was not responsible for the accident, that the accident was occurred due to negligence of petitioner and that the compensation claimed is excessive and without basis.
4. The claim petition was tried by the Tribunal. On the basis of the oral evidence adduced by the petitioner as PW1 and the documentary evidence as Exts.A1 to A15 and Ext.X1, the Tribunal arrived at a finding that the driver of the car has caused the accident by his rash and negligent driving. The Tribunal has also found the petitioner entitled to get compensation from the respondents and arrived at Rs.88,262/- as the compensation payable to him. The insurer of the car was directed to deposit the said amount with interest at the rate of 7.5% per annum from the date of the claim petition till the date of realisation. Contending
**MACA.No.4136 of 2017** 4
mainly that the amount awarded by the Tribunal is unjust, unreasonable and disproportionate to his sufferings and seeking for a modification of the compensation by way of enhancement, the captioned appeal was preferred by the petitioner.
5. Sri.Nirmal.V.Nair, the learned counsel has advanced arguments on behalf of the petitioner. According to him, the Tribunal failed to award reasonable compensation towards loss of earnings, pain and sufferings, extra nourishment, medical expenses, bystander expenses, damages to clothing and loss of amenities and enjoyments in life. He has also pointed out that the Tribunal failed to grant compensation towards loss of earning power though a claim for Rs.1,00,800/- was made. Raising contentions as above, the learned counsel pleaded that interference of this Court is very much needed to make the compensation just and reasonable by enhancement.
6. Per contra, Sri.Lal George R, the learned Standing Counsel for third respondent has contended that reasonable sums have been awarded by the Tribunal as compensation under various heads on the basis of the evidence on record and interference is totally uncalled for. According to him, though the monthly income fixed by the Tribunal as Rs.5,000/- was pleaded
**MACA.No.4136 of 2017** 5
as unreasonable, there is no justification for such a plea, when evidence is totally lacking to base the claim. According to him, the documents produced by the petitioner to establish his occupation and monthly income were not put to proof and in such a circumstance, that the Tribunal was constrained to fix the monthly income notionally as Rs.5,000/-. According to the learned Standing Counsel, the Tribunal is perfectly justified in doing so and cannot be found fault with. Raising contentions as above, the learned Standing Counsel canvassed for dismissal of the appeal.
7. From the submissions made as above by the respective counsel on behalf of the parties to the appeal, it is apparent that the only dispute raised is with regard to the meagerness in the compensation arrived at by the Tribunal under various heads. Therefore, this Court is required to consider the tenability of the contentions in the light of the evidence on record.
8. As noticed from the impugned award, the petitioner had tendered oral evidence as PW1. The serious injuries sustained by him are elaborately described in the impugned award. It is evidenced that he was bed ridden for six months with Plaster of Paris applied on his leg. According to him, his right leg has a
**MACA.No.4136 of 2017** 6
shortening and weakness and restriction in movements following the fracture sustained in the accident and therefore is permanently disabled and the Medical Board has issued Ext.X1 assessing his permanent disability. As claimed by the petitioner, he was working as an Offset Printing Machine Operator in a company namely 'Recorder Printing and Publishing LLC' at Sharjah at the relevant time of accident. According to him, he was on leave and the accident was occurred on the immediately preceding day on which his leave was due to expire. Therefore, he could not join duty after the expiry of leave and thus a loss to the tune of 488 Dirhams (Indian Rupee worth Rs.9,760/-) was caused to him. It has also been stated by him that, leave was applied for during the course of treatment but his employer was not amenable to grant leave, doubting the claim made by him. Therefore, he was constrained to travel to Sharjah on 06.11.2008 to make his employer convince about his physical condition and return therefrom on 09.11.2008. On that count, he had sustained a loss to the tune of 1110 Dirhams (Indian Rupees worth Rs.22,200/-). After treatment he went to Sharjah to join his duty on 03.05.2009 but to his dismay he was restrained from joining there as an Offset Printing Machine Operator. He was permitted
**MACA.No.4136 of 2017** 7
by his employer only to join as a helper in the company and thereby he had sustained a loss in monthly income to the tune of 2000 Dirhams. According to the petitioner, the injuries and the resultant disability caused much loss to him and he needs to be compensated. Materials to establish his job, monthly income, expenditure incurred towards treatment, declination of permission from employer to join his job as an Offset Printing Machine Operator, consequent continuation in the job as a helper and loss sustained due to cancellation of journey and travelling abroad in the meantime had been brought by the petitioner in evidence during trial before the Tribunal but, due consideration was not given to those. The counsel for the third respondent though attempted to controvert him on material aspects spoken by him, did not succeed. Though Exts.A9 and A10, the Employment cum Salary certificates allegedly issued by his employer were got marked in evidence by the petitioner, the signatory of those not being examined, those have not been relied on by the Tribunal. The Tribunal was constrained to fix Rs.5,000/- notionally as his monthly income in the aforesaid circumstances and therefore it cannot be found fault with. However, the accident being occurred in the year 2008, in view of _**Ramachandrappa v.**_
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## _**Royal Sundaram Alliance Insurance Co.Ltd. (AIR 2011 SC**_
_**2951)**_ this Court is justified to fix the monthly income of the petitioner as Rs.8,000/- for arriving at just and reasonable compensation. It is evidenced from Exts.A5 and A6, the accident register cum wound certificate and discharge card respectively issued from NSS Medical Mission Hospital, Pandalam that the petitioner had sustained fracture of shaft of femur of right leg in the accident and was subjected to external fixation coupled with application of Plaster of Paris. In view of the fracture sustained to shaft of femur the petitioner might have been constrained to take rest for a period of six months. Therefore, he must have sustained loss of earning for at least six months. When compensation for loss of earning is calculated with the refixed monthly income of Rs.8,000/- for a period of six months, Rs.48,000/- will be payable. Since the Tribunal has already awarded Rs.15,000/- under the head, Rs.33,000/- (48,000 - 15,000) will be payable additionally as compensation in the refixation as above. He must have also availed the service of a bystander and constrained to take nutritious food at least for a period of one month. He must have also suffered much pain and was restrained from the enjoying the amenities in life. The
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Tribunal has awarded only a sum of Rs.1,000/-, Rs.1,500/-, Rs.20,000/- and Rs.5,000/- respectively under the heads extra nourishment, bystander expenses, pain and suffering and loss of amenities and enjoyments in life without applying its mind properly to the aforesaid aspects. Therefore, this Court is perfectly justified in modifying the compensation by fixing Rs.100/- and Rs.200/- per day for one month respectively towards extra nourishment and bystander expenses. When compensation is re-fixed with the sums fixed as above, the petitioner will get Rs.2,000/- and Rs.4,500/- under the respective heads extra nourishment and bystander expenses additionally. Rs.20,000/- and Rs.5,000/- respectively awarded under the heads pain and sufferings and loss of amenities and enjoyments in life being highly disproportionate to the injuries and sufferings to which petitioner was put to by the accident, this Court is inclined to grant Rs.20,000/-and Rs.15,000/- respectively under the respective heads as compensation additionally. The petitioner was a resident of Mavelikkara Taluk and met with the motor accident at Para junction in Kayamkulam-Punalur public road. He had availed treatment from NSS Medical Mission Hospital, Pandalam. Eventhough, evidence is available on record to
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establish those aspects, the Tribunal has awarded only a sum of Rs.1,000/- towards transportation expenses. The amount being too low, this Court is inclined to grant a sum of Rs.2,000/additionally under that head.
9. The petitioner had deposed about his inability to do the work, in which he was engaged at the relevant time of accident. The petitioner got himself examined by the Medical Board. Ext.X1 is the Disability certificate issued by the Medical Board associated with the Government T.D. Medical College Hospital, Alappuzha after examining the petitioner. The Medical Board has reported in Ext.X1 that the function/power of the lower limb of the petitioner is usual. The Medical Board did not certify any disability for the petitioner in Ext.X1. The claim of the petitioner when examined before the Court as PW1 was that, in view of the injuries sustained in the accident and disability occurred, he was denied by his employer to continue his profession as an Offset Printing Machine Operator. It is true that, the petitioner attempted to establish those aspects by producing certain documents. But, those documents have not been put to proof by examining the employer. In the aforesaid circumstances that the Tribunal declined to grant compensation under the head loss of earning
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power. As stated earlier, despite the conduct of an examination of the petitioner by the Medical Board, disability of any nature was not found by it, mainly for the reason that, his lower limb was functioning in usual manner. Therefore, there is no basis for the learned counsel for the petitioner to canvass for grant of compensation under the head loss of earning power. The same was rightly declined by the Tribunal and this Court did not find any reason to deviate therefrom.
10. In refixation of compensation as above, the petitioner is entitled to get **Rs.76,500/- (Rupees seventy six thousand five hundred only)** [33,000 +2,000 + 4,500 + 20,000 + 15,000 + 2,000] as compensation additionally and the said amount will carry interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. The third respondent shall deposit the aforesaid sum with interest as directed within a period of two months from the date of receipt of a copy of this judgment.
The appeal stands allowed in part on the above terms. No order as to costs.
## **Sd/-**
## **MARY JOSEPH**
**JUDGE**
NAB
