Mohandas v. Anand and Shaji and National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938 MACA.No. 1920 of 2007 ( ) -------------------------AGAINST THE AWARD IN OP(MV)No.891/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 20-11-2006 APPELLANT/PETITIONER: --------------------------- MOHANDAS, S/O.LATE KRISHNANKUTTY POTHANNOOR HOUSE, (AMBILI), P.O. ORUMANAYOOR, VIA. CHOUGHAT, THRISSUR DISTRICT, PIN CODE 680 512 BY ADV. SRI.P.V.CHANDRAMOHAN ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. ANAND, S/O.NANU, 17/1926 B, EAST KOTTAPARAMBA, CALICUT. 2. SHAJI, S/O. KRISHNAN' KARUMATHIL, ELAVALLY, KAKKASSERY, THRISSUR DISTRICT. 3. NATIONAL INSURANCE CO. LTD., SAREO TOWER, TAJ ROOAD, CALICUT-673 001. R3 BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** -----------------------------------M.A.C.A.No.1920 of 2007 ------------------------------------Dated 13[th] December, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The petitioner who is the victim of a motor vehicle accident preferred this appeal on being aggrieved and dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Thrissur as per the judgment and award in O.P.(M.V)891 of 2001. The accident in which he sustained the injuries occurred on 12.9.2000 while he was riding his motor cycle bearig Reg.No.KRR 7195. He was riding the said motor cycle through Chittattukara Pavaratty public road and when he reached near the school ground gate, the offending vehicle which is another motor cycle bearing Reg.KL11/K 7671 ridden by the 2[nd] respondent hit against his motor cycle. On sustaining injuries the appellant was taken to Amala Hospital, Thrissur. He remained there as an inpatient for a period of 69 days. The injuries sustained by him resulted in permanent disability. It is in the said circumstances that claiming a total compensation of 5,53,000/- he₹ filed the said claim petition under Section 166 of the Motor Vehicles Act. As per the impugned award, the Tribunal granted a total compensation M.A.C.A.No.1920/2007 2 of 1,63,300/- with interest at the rate of 7% per annum from the date₹ of petition till realisation. The appellant/petitioner seeks for enhancement of compensation in this appeal. Considering the fact that the offending vehicle had valid insurance coverage at the time of the accident issuance of notice to the first respondent was dispensed with as per order dated 8.12.2011. 2. We have heard the learned counsel for the appellant and also the learned counsel Sri.Jayasankar appearing for the 3[rd] respondent insurance company. None appeared for the second respondent. Though the 3[rd] respondent was directed to deposit the amount awarded for indemnifying the insured owner of the vehicle no appeal or cross objection in this appeal was filed by the insurer. Hence, the only question that invites consideration in this appeal is as to whether the appellant is entitled to enhanced compensation. 3. The learned counsel for the appellant submitted that the Tribunal denied just compensation to the appellant. It is submitted that though the accident occurred on 12.9.2000 and the appellant was then aged only 27 years, for calculation purpose the Tribunal fixed the M.A.C.A.No.1920/2007 3 monthly income only at 2,000/- notionally ignoring the specific₹ averments of the appellant that he was a mechanic and was earning ₹ 4,500/- per month. It is the further submission that though going by Ext.A7 disability certificate the disability of the appellant was assessed as 22% the Tribunal took only 10% for calculation purpose that too, ignoring the evidence of PW1, the doctor who issued the same. It is the further submission that amounts of compensation granted for `pain and suffering', `permanent disability', `loss of amenities' as also the amount granted towards `bystander's expenses' are also on the lower side. In such circumstances, it is contended that they require an upward modification. Per contra, the learned counsel for the 3[rd] respondent submitted that the appellant had not succeeded in establishing his occupation and income as claimed in the petition and therefore, the Tribunal cannot be found fault with in fixing the monthly income of the appellant as 2,000/- notionally after taking note of the₹ fact that the accident occurred in the year 2000. It is the submission that a perusal of the schedule of compensation given in the judgment would reveal that adequate compensation was granted by the Tribunal under all heads and therefore, according to the learned counsel appearing for the 3[rd] respondent, no appellate interference is invited. M.A.C.A.No.1920/2007 4 4. We will firstly consider whether there is any substance in the contention that the Tribunal fixed the monthly income of the appellant meagrely. The accident occurred on 12.9.2000. The appellant was then aged only 27 years. True that, he had not succeeded in establishing the averments taken up in the claim petition regarding his occupation and income. Even then, we are of the view that taking note of the year of the accident and the age of the appellant at the time of the accident the fixation of monthly income at 2,000/-₹ is meagre and therefore, we are inclined to take the monthly income of the appellant as 3,000/- for calculation purpose. The Tribunal₹ identified the multiplier as `18'. The learned counsel for the 3[rd] respondent submitted that in the light of the schedule given in _**Sarla**_ ## _**Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ with reference to the age of the injured the multiplier to be applied is `17'. In fact, a glance at the schedule with reference to the age of the appellant would reveal that there is substance in the said contention. True that, going by Ext.A7, in the accident the appellant incurred 22% disability. PW1, the doctor attached to Medical College Hospital, Thrissur, who issued the same was examined before the Tribunal. True M.A.C.A.No.1920/2007 5 that, Ext.A7 is not a certificate issued by a Medical Board. The Tribunal converted the assessment of disability made by PW1 under Ext.A7 as whole body disability and took 10% for calculation purpose. The nature of the injuries which resulted in permanent disability is as follows:- “He sustained compound comminuted segmental fracture both bone right leg with loss of bone and crush injury with loss of skin and muscles, fracture of left clavicle and serious damage to blood vessels of right leg.” The nature of the treatment undergone by the appellant includes illizarov treatment and fibulactomy. Taking note of the nature of the disability discernible from Ext.A7 though the Tribunal cannot be found fault with in not accepting the entire disability assessed under Ext.A7, we are of the view that 12% ought to have been taken into consideration. In the light of the monthly income fixed and permanent disability assessed by us and adopting `17' as the multiplier a reassessment of compensation for permanent disability has to be made. On such re-assessment the appellant would be entitled to get an additional compensation of 30,240/- (3000 x 12 x 17/100 - 43200).₹ The nature of the injuries sustained by the appellant and the period of M.A.C.A.No.1920/2007 6 convalescence were taken note of by us, earlier. In the light of the aforesaid circumstances, we are inclined to grant 10,000/- each₹ additionally under the heads `pain and suffering' and `loss of amenities'. Towards `loss of earning' the Tribunal took a period of six months. In view of the fact that we have taken the monthly income as ₹ 3,000/- the appellant would be entitled to get an additional amount of ₹ 6,000/- under that head. The Tribunal granted 2,000/- towards₹ `expense for extra nourishment' and 5,000/- towards `expense for₹ bystander'. The appellant had been an inpatient for 69 days. Taking note of the fact that the accident occurred in the fag end of 2000 we are of the view that the rate of bystander's expense ought to have been fixed at 150/- per day and the extra nourishment must have been at₹ the rate of 100/- per day. In that view of the matter, the appellant₹ would be entitled to get an amount of 4,900/- (69 x 100 - 2000)₹ additionally under `expense for extra nourishment' and 5350 (69 x₹ 150 - 5000) additionally towards `expense for bystander'. 5. In the light of the discussion as above, the appellant is entitled to get an additional compensation of 66,490/- rounded₹ off to 66,500/-. It is awarded. The additional compensation₹ M.A.C.A.No.1920/2007 7 will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent is directed to deposit the said amount within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. This appeal is disposed of as above. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS