Murali T.K v United India 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 FRIDAY, THE 20TH DAY OF MAY 2016/20TH VAISAKHA 1938 MACA.No. 1300 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 1229/2008 of M.A.C.T, OTTAPPALAM DATED 19-07-2010 APPELLANT(S)/PETITIONER: ------------------------------ MURALI T.K, S/O.KUMARAN @ KUMARANEZHUTHASSAN, THEKKINGATTIL HOUSE, MATHUR MANA ROAD, THOTTAKARA.P.O, OTTAPALAM-2, OTTAPALAM TALUK, PALAKKAD DISTRICT. ## BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S)/3RD RESPONDENT : ------------------------------ THE UNITED INDIA INSURANCE CO. LTD, BRANCH OFFICE, 4 JOS THRUST BUILDING, OPP.Y.M.C.A, CHITTOOR ROAD, ERNAKULAM, KOCHI-682032. ## BY ADV. SRI.P.SANKARANKUTTY NAIR BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K. P. JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1300 OF 2012 ==========================** Dated this the 17[th] day of May, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is filed against the judgment and award dated 19.7.2010 in O.P.(MV).No.1229 of 2008 on the files of the Motor Accidents Claims Tribunal, Ottapalam. The appellant filed the said claim petition under section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 28.7.2007. On that day, he was driving a tempo van from Ottapalam to Thrissur for supplying goods belonging to his employer M/s.Kamadhenu Food Products, Kanniyampuram. When he reached near Athani centre by about 5.30 p.m, the offending vehicle which is a bus bearing Reg.No.KL-06-A-412 driven by the first respondent came from the opposite direction through the wrong **M.A.C.A.1300/2012** 2 side dashed against the said tempo. Consequently, he sustained injuries. Immediately, the appellant was taken to Daya General Hospital & Speciality Surgical Centre, Thrissur. He remained there as an inpatient for 18 days from 28.7.2007 to 15.8.2007. It is in the said circumstances that the above mentioned claim petition was filed seeking a total compensation of `2,50,000/-. 2.Before the Tribunal, the appellant/petitioner got himself examined as PW1 besides getting marked Exts.A1 to A10. On the side of the respondents, no evidence whatsoever was adduced. The Tribunal, after evaluating the evidence on record and considering the rival contentions, passed the impugned award for a total compensation of `99,900/- with interest at 8% per annum from 12.12.2008 till realisation. It is dissatisfied with the quantum of compensation granted thereunder that the captioned appeal has been filed. 3.We have heard the learned counsel for the appellant and the **M.A.C.A.1300/2012** 3 learned counsel appearing for the respondent-insurer. 4.The learned counsel for the appellant contended that the Tribunal wrongly fixed the monthly income of the appellant as `2,000/- disregarding the specific averments to the effect that the appellant was a driver and was earning `6,000/- per month. It is further contended that in the accident, the appellant incurred 12% permanent disability as is obvious from Ext.A10. But, the Tribunal declined to accept Ext.A10 and consequently, no amount was granted by the Tribunal as compensation for permanent disability. That apart, it is contended that the Tribunal granted only meagre amounts as compensation under the heads loss of earning, medical expenses, transportation expenses, pain and suffering as also towards loss of amenities and therefore, compensation granted under the aforesaid heads also requires upward modification. 5.On the other hand, the learned counsel for the respondent- **M.A.C.A.1300/2012** 4 insurer submitted that a bare perusal of the impugned award would reveal that the Tribunal has granted just compensation taking into account the injuries sustained by the appellant. It is further contended by the learned counsel that it cannot be held that the Tribunal had declined to grant compensation towards permanent disability and in fact, the Tribunal had only held that the appellant had failed to establish the factum of his having incurred permanent disability and found him not entitled to get compensation under that head. It is contended that though the appellant had produced Ext.A10, it is not a disability certificate issued by a duly constituted medical board and that apart, Ext.A10 was also not legally brought on record by examining the doctor who issued the same. The learned counsel further contended that the Tribunal has granted adequate compensation under all other heads. In such circumstances, it is submitted that no appellate interference is called for. 6.In the light of the rival contentions and on perusal of the **M.A.C.A.1300/2012** 5 impugned award, we are of the view that the question firstly to be decided is whether fixation of monthly income as `2,000/- by the Tribunal warrants any interference. A careful scrutiny of the impugned judgment would reveal that there is absolutely no discussion therein as to how the monthly income was fixed and why it was fixed as only `2,000/-. True that the appellant had not produced any employment certificate or any other document to establish his occupation and monthly income. But at the same time, we are of the considered view that the fact that the appellant was a person competent and authorised to drive a transport vehicle is evident from the evidence on record. It is not in dispute that he sustained injuries on 28.7.2007 while driving a tempo van. There is no case for the respondents that he was not having a valid driving license to drive a transport vehicle. It was the collision between the vehicle driven by him and the aforesaid bus that led to the filing of the above mentioned claim petition. Ext.A1 which is the copy of FIR No.310/2007 registered in connection with the accident in question would also **M.A.C.A.1300/2012** 6 reveal that the appellant is a driver by profession. He was then aged 31 years. Certainly, while considering the question whether fixation of monthly income by the Tribunal is to be interfered with or not, the aforesaid aspects have to be taken into account. That apart, while considering the said question, we cannot loss sight of the fact that the Hon'ble Apex Court fixed the monthly income of a coolie in respect of an accident that occurred in the year 2004 as `4,500/- as is revealed from the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** As noticed hereinbefore, the accident in question occurred on 28.7.2007. When once it is evident that the appellant was a driver and the accident occurred in the year 2007, taking into account all other facts mentioned hereinbefore, we have no hesitation to hold that the fixation of the monthly income notionally at `2,000/- by the Tribunal is too low and it invites interference. Taking into account the aforesaid aspects, we are of the view that the monthly income of the **M.A.C.A.1300/2012** 7 appellant for the purpose of computing compensation payable to him has to be fixed at `5,000/-. Accordingly, it is fixed. In the accident, the appellant sustained the following injuries as is obvious from Ext.A6 wound certificate:- _“Lacerated wound chin 4x2 cm (sutured), Lacerated wound below Rt.knee 4x1cm (sutured), Fracture femur M/3 comminuted left (ORIF done) avulsion lateral femur condyle (L), open wound knee joint left 8x3 cm, arthrectomy (L) knee joint.”_ 7.Ext.A8 discharge summary would reveal that the appellant had sustained comminuted fracture shaft of femur (L), debridement into contaminated lacerated wound knee with joint comminutation. It is in support of the said claim that the appellant had produced Ext.A10. As noticed hereinbefore, it is not a certificate issued by a duly constituted medical board. The reasons for arriving at 12% permanent disability (whole body) is not discernible from Ext.A10. That apart, it is evident that the doctor who issued Ext.A10 had not certified with definiteness that the appellant had actually incurred 12% disability. What was **M.A.C.A.1300/2012** 8 certified is that his difficulties due to shortening, limbing constituted about 12% disability (whole body). When that be the nature of the evidence adduced by the appellant to substantiate his claim that he incurred permanent disability, we cannot find fault with the Tribunal in not accepting and acting upon Ext.A10. But at the same time, the medical records produced by the appellant viz., Exts.A6 and A10 would undoubtedly reveal that he sustained the aforementioned injuries including fracture of femur. When that be so, merely because the appellant had failed to legally bring on record Ext.A10 by examining the doctor who issued it or the fact that he had not undergone an examination by a duly constituted board to assess permanent disability incurred in the accident cannot be a reason for declining compensation for the permanent disability taking into account the undisputed fact that his left femur was fractured and arthrectomy was done on left knee joint it would be unjust to deny him compensation for permanent disability owing to the accident. **M.A.C.A.1300/2012** 9 Taking into account the fact that the provision for granting compensation for injuries under the Motor Vehicles Act is a social welfare legislation, we are of the considered view that despite such circumstances, the appellant cannot be denied compensation for the permanent disability incurred by him in the accident. After going through Exts.A6 and A8 and also Ext.A10 (though we are not virtually accepting the assessment made thereunder as also the permanent disability certified thereunder), we are of the considered view that permanent disability incurred by the appellant in the accident can be assessed as 7%. There is no dispute regarding his age and he was then aged 31 years. In view of the fact that we have fixed the monthly income of the appellant as `5,000/- and permanent disability as 7%, the compensation for permanent disability has to be assessed. Taking into account the aforesaid facts, the appellant is entitled to get an amount of `67,200/- (5000x12x16/100) under the said head. Evidently, the Tribunal took only a period of four months for the purpose of arriving at the compensation to which the appellant **M.A.C.A.1300/2012** 10 is entitled under the head loss of earning. Taking into account the nature of the injuries sustained by him in the accident as noted above, we are of the view that the period ought to have been taken as six months. In such circumstances, taking into account the monthly income which we fixed and taking the period of loss of earning as six months, the appellant would be entitled to get an amount of `22,000/additionally under the said head. Towards transportation expenses, the appellant claimed an amount of `10,000/-. But the Tribunal granted only an amount of `1,000/- . Taking into account the injuries and the nature of the treatment which the appellant had undergone, there cannot be any room for any doubt that he must have had hospitalisation at least on two occasions. In such circumstances, we are of the view that the appellant is entitled to get `4,000/- more towards transportation expenses. Towards pain and suffering, the appellant claimed an amount of `25,000/-. But the Tribunal granted an amount of `15,000/- We have already adverted to the nature of the injuries sustained by the appellant in the accident. Taking into **M.A.C.A.1300/2012** 11 account the said aspects, there can be no doubt that he must have endured excruciating pain from the injuries sustained in the accident. We are of the view that the amount granted under the said head by the Tribunal is too inadequate to compensate the same. Taking into account such circumstances, the amount actually claimed by the appellant for pain and suffering is also on the lower side. Taking into account all such circumstances, we are of the view that towards pain and suffering, the appellant is entitled to get an amount of `40,000/-. In such circumstances, after deducting `15,000/- already granted by the Tribunal under the said head, the appellant would be entitled to get `25,000/- more. The appellant claimed an amount of `10,000/towards loss of amenities and conveniences and the Tribunal granted only a meagre amount of `3,000/-. The nature of the injuries vividly explained hereinbefore would undoubtedly go to show that the amount granted by the Tribunal is too meagre and it requires modification. We do not find any reason for not granting the amount claimed by the appellant viz., `10,000/-. In such circumstances, after **M.A.C.A.1300/2012** 12 deducting the amount already granted by the Tribunal, the appellant is entitled to get an amount of `7,000/- more. In the light of the above, the appellant is entitled to get an amount of `1,25,020/- rounded off to `1,25,000/- as compensation over and above the amount granted by the Tribunal under the impugned award. The enhanced amount will carry interest at 8% from the date of the petition till realisation. The respondent is directed to deposit the said amount within a period of two months from the date of receipt of a copy of this judgment and in case of failure on the part of the respondent to deposit the said amount within the stipulated time, the entire amount remaining to be paid will carry interest at 9%. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** ## **K. P. JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1300/2012** 13 **M.A.C.A.1300/2012** 14 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1300/2012** 15