MOHANAN NAIR v. VIJAYAN; K.N. SREEDHARAN; THE UNITED INDIA INSURANCE CO. LTD.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 ``` ## `MACA NO. 810 OF 2011` ``` AGAINST THE AWARD DATED 27.11.2010 IN OPMV 874/2007 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM ``` ## `APPELLANT/PETITIONER:` ``` MOHANAN NAIR, S/O. KUTTAI, VADAKKEKOYIPARATH HOUSE, VALLAMCHIRA BHAGOM,PAYIPPADU, CHANGANASSERY-690556 ``` ``` BY ADVS.SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1VIJAYAN, ANJILITHANAM BHAGOM, KUNNANTHANAM, THIRUVALLA-689581 ``` ``` 2K.N.SREEDHARAN, SUMA NIVAS ANJILITHANAM, THIRUVALLA-689582 ``` - `3 THE UNITED INDIA INSURANCE CO.LTD, KOTTAYAM-686001` ``` BY ADVS.SRI.V.JAYAPRADEEP SRI.RENIL ANTO KANDAMKULATHY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.810/2011 -:2:- Dated this the 25[th] day of November, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.874/2007 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were 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 26.01.2007. It was his case that, on the above said day, while he was walking along the Kaviyoor-Paippadu road, a car bearing registration No.KL-3-D/1445(car), driven by the first respondent in a rash and negligent manner, hit the appellant. The appellant was taken to the Medical Mission Hospital, Thiruvalla, where he was given first aid. Thereafter, he was shifted to the Medical College Hospital, Kottayam, and treated as an inpatient for a M.A.C.A.No.810/2011 -:3:- period of 10 days. He had severe bleeding and also had sustained a Type II bimalleolar fracture and his left hand to be put in a cast for a period of six weeks. Thereafter, he was treated as an inpatient for five days. The appellant was a mason by profession and was earning a monthly income of Rs.5,000/-. The car was owned by the second respondent and insured with the third respondent. Hence, the appellant claimed a total compensation of Rs.1,85,000/- from the respondents, but the claim was limited to Rs.1,00,000/- 3. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement contending that the accident occurred due to the negligence of the appellant. It was also stated that the first respondent did not hold a valid driving licence. Therefore, there was violation of policy conditions. The third respondent also disputed the age, M.A.C.A.No.810/2011 -:4:- income and occupation of the appellant. Hence, the third respondent prayed that the claim petition be dismissed. 5. The appellant produced and marked Exts. A1 to A9 in evidence. The respondents did not let it 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 third respondent an amount of Rs.42,926/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit and a cost of Rs.1,000/- 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. Philip T. Varghese, the learned counsel appearing for the appellant/petitioner and Sri. V. Jayapradeep, the learned counsel appearing for the M.A.C.A.No.810/2011 -:5:- third respondent -insurer. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A2 chargesheet filed by the Thrikkodithanam Police in Crime No.34/2007, establishes that the accident happened due to negligence of the first respondent. The second respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to the contrary to discredit Ext.A2 chargesheet. Similarly, the third respondent has not proved that the second respondent has violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. M.A.C.A.No.810/2011 -:6:- ## **Income:** 11. The appellant had claimed that he was a mason by profession and earning a monthly income of Rs.5,000/-. However, the Tribunal, for the want of materials, has fixed the notional monthly income of the appellant at Rs.3,250/-. 12. The Hon’ble Supreme Court in **Chameli Devi and Ors. v. Jivrail Mian & Ors.** [2019 KHC 5352] has fixed the notional income of a carpenter in the year 2001, at Rs.5,000/- per month. 13. Similarly, in **Chandra @ Chandra @ Chandraram and Anr. v. Mukesh Kumar Yadav and Ors** [LL 2021 SC 531] **,** the Hon’ble Supreme Court has fixed the notional income of a driver in the year 2004, at Rs.6,000/- per month. 14. Following the yardstick in the afore-cited decisions and considering the fact that the appellant was a mason by profession and that the accident M.A.C.A.No.810/2011 -:7:- occurred in the year 2007, I have no hesitation to fix the monthly notional income of the appellant at Rs.5,000/-, as claimed in the claim petition. ## **Disability:** 15. The appellant had produced Ext.A6 disability certificate to prove that he has a permanent disability of 15%, as per the Mc Bride Scale. It is certified in Ext.A6 that, the appellant had sustained a Type II open bimalleolar fracture of his ankle. However, the Tribunal for the reason that the appellant had not examined the doctor who issued Ext.A6, refused to accept Ext.A6 and declined award of compensation for ‘loss due to disability’. 16. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, in the case of injury cases, what needs to be looked into is the functional disability of the injured/claimant. If the Tribunal is not satisfied M.A.C.A.No.810/2011 -:8:- with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. 17. In the instant case, although Ext.A6 disability certificate was accepted on record, without demur or protest from the respondents, the Tribunal just discarded Ext.A6 on the ground that it was not proved by the appellant. The said course is erroneous and wrong because the Tribunal ought to have granted the appellant an opportunity to examine the doctor who issued Ext.A6, or referred the appellant to a duly constituted medical board. Therefore, I am inclined to accept Ext.A6 to fix the functional disability of the appellant as laid down in **Rajkumar** (supra). 18. On going through Ext.A6, it is seen that the appellant has a wasting of his left leg muscles and left leg ankle is swollen. Similarly, his left leg movements are restricted to 90[o] to 110[o] range and there is valgus M.A.C.A.No.810/2011 -:9:- deformity of his left ankle of 10%. 19. Taking note of the assessment made by the Doctor in Ext.A6 and considering the fact that the appellant was a mason by profession, I fix his functional disability at 10%. ## **Multiplier:** 20. The appellant was aged 48 years at the time of accident. Going by the law laid down in **Sarla Verma and others v. Delhi Transport Corporation** **and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier to be adopted is ‘18’. ## **Loss due to disability:** 21. Taking into account the above mentioned factors, namely; the notional monthly income of the petitioner at Rs.5,000/-, his ‘functional disability’ at 10% and the ‘multiplier’ at ‘13’, I award the appellant an amount of Rs.78,000 towards ‘loss due to disability’. M.A.C.A.No.810/2011 -:10:- ## **Loss of earnings:** 22. It is proved by Exts.A3 and A5 discharge cards, that the appellant was treated as an inpatient for a period of 15 days. I have already fixed the functional disability of the appellant at 10%. The appellant being a mason by profession, I hold that he was indisposed for a period of four months. 23. In view of the re-fixation of notional monthly income of the appellant at Rs.5,000/-, I award him an amount of Rs.20,000/- towards ‘loss of earnings’. ## **Bystander expenses:** 24. The appellant was treated as an inpatient for a period of 15 days. The Tribunal has awarded only an amount of Rs.1,500/- towards ‘bystander expenses’ , which is too meager. Hence, I award him an amount of Rs.200/- per day for a period of 15 days, which amounts to Rs.3,000/-. M.A.C.A.No.810/2011 -:11:- ## **Loss of amenities** 25. The appellant had claimed an amount of Rs.20,000/- towards 'loss of amenities'. The Tribunal has awarded only an amount of Rs.10,000/- under the said head, which is on the lower side. 26. Taking into account the serious injuries sustained by the appellant, that he was treated as an inpatient for a period of 15 days, that he was indisposed for a period of four months and that he has suffered a functional disability of 10%, I award him a further amount of Rs.10,000/- under the head ‘loss of amenities’ i.e., a total amount of Rs.20,000/- as claimed in the claim petition. 27. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to M.A.C.A.No.810/2011 -:12:- in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|13,000|20,000| |2|Transport|1,500|1,500| |3|Clothing|500|500| |4|Bystander<br>expenses|1,500|3,000| |5|Medical expenses|5,676|5,676| |6|Pain and sufferings|10,000|10,000| |7|Loss of amenities|10,000|20,000| |8|Loss of disability|Nil|78,000| |9|Extra nourishment|750|750| ||**TOTAL**|**42,926**|**1,39,426**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.96,500/-** with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit, after after M.A.C.A.No.810/2011 -:13:- deducting interest for a period of 53 days i.e., the period of delay in preferring this appeal and as directed by this Court on 22.09.2021 in C.M.Appln.No.1/2011, and a cost of Rs.5,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty 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 enhanced compensation amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/25.11.21 //True copy/ P.A.To Judge