# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 4[TH] DAY OF AUGUST 2022 / 13TH SRAVANA, 1944**
**MACA NO. 2809 OF 2015**
**AGAINST THE AWARD DATED 04.08.2015 IN OPMV 726/2007 ON THE FILES OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NEYYATTINKARA.**
## **APPELLANT/APPLICANT:**
**MURUKAN AGED 59 YEARS S/O. KRISHNAN ASHARI, RESIDING AT K.B.R. BHAVAN, OORUTTAMBALAM, MARANALLOOR DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.**
**BY ADV RINU. S. ASWAN SRI. NIKHIL SRI. P. ABDUL RAZAK**
## **RESPONDENTS/RESPONDENTS:**
**1 Y. SAJI AGE NOT KNOWN TO THE APPELLANT, S/O. YESUDAS, RESIDING AT CHEMMANNUVILA PUTHEN VEEDU, MANALOOR, NEYYATTINKARA - 695 121. 2 SUMENDRAN N. AGE NOT KNOWN TO THE APPELLANT, S/O. P.NARAYANAN, RESIDING AT SUMENDRA KALLI MARAKUZHI, VEERANAKAVU P. O., NEYYATTINKARA - 695 121. 3 THE MANAGER THE NEW INDIA ASSURANCE CO. LTD., 2ND FLOOR, SWADESHABHIMANI COMPLEX, NEAR K.S.R.T.C. BUS STAND, NEYYATTINKARA - 695 121.**
## **R3 - SRI.SAIGI JACOB PALATTY - SC**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
The petitioner in O.P. (MV) No.726 of 2007 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara has filed this appeal aggrieved by the quantum of compensation awarded by the Tribunal. The status of the parties herein is referred to as it appears in the claim petition.
2. Heard the learned counsel for the appellant and Sri.Saiji Jacob Palatty, the learned Standing Counsel for the 3rd respondent.
3. According to the petitioner, while he was walking through Pongummoodu - Kattakada road on 17.12.2006, a motor bike bearing Registration No.KL20-3639 ridden by the 2[nd] respondent hit the petitioner and he sustained serious injuries. The 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the
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motor bike. The petitioner claimed an amount of Rs.4,00,000/- as compensation for the injuries sustained in the accident.
4. Respondents 1 and 2 remained ex-parte before the Tribunal. Exts.A1 to A19 were marked on the side of the petitioner and the 3[rd] respondent produced Ext.B1 in evidence.
5. The 3[rd] respondent Insurance Company filed a written statement admitting that the vehicle was having a valid policy of insurance at the time of the accident. However, contended that the accident happened due to the negligence of the petitioner himself and the amount claimed as compensation is excessive and exorbitant.
6. The Tribunal found that the accident happened due to the negligence of the 2[nd] respondent, the rider of the motor bike and awarded an amount of Rs.80,500/- as total compensation for the injuries
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sustained by the petitioner in the accident with 9% interest per annum from 29.05.2007 till realisation.
7. The petitioner contends that the compensation awarded by the Tribunal under various heads is totally inadequate. The petitioner was a carpenter and aged 51 years at the time of the accident. He sustained both bone fracture of right leg and contusion right forearm. It is contended that he was treated as inpatient for 75 days during different spells. In Ext.A14 certificate, the Associate Professor in Orthopaedics, Government Medical College, Thiruvananthapuram has assessed the permanent disability of the petitioner as 17% as per the McBride Scale. In Ext.A14, the Doctor has noted the following:-
- _“1. Range of movements of right knee-0-90 degrees of flexion._
_2. Difficulty in lifting heavy weights, squatting, climbing steps._
_3. Wasting of right quadriceps._
_4. Radiologically malunited fracture of right tibia and fibula with angulation and shortening._
_5. Shortening of 2cms of right leg.”_
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8. The Tribunal has taken the notional monthly income of the petitioner as Rs.3,000/-. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236] has taken the notional monthly income of a casual labourer in the year 2004 as Rs.4,500/-. In **Pushkar Mehra v. Brij Mohan Kushwala and others** [2015 (12) SCC 688], the Apex Court has fixed the notional income of a skilled labourer in the year 2010, at Rs.7,020/- per month. Taking guidance from the said decisions, the notional monthly income of the petitioner can be taken as Rs.5,500/- in the year 2006. Accordingly, I re-fix the notional monthly income of the petitioner as Rs.5,500/-.
9. Towards loss of earnings, the Tribunal has awarded an amount of Rs.9,000/- taking the period of loss of earnings of the petitioner as three months.
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Going by the nature of the injuries sustained and the period of inpatient treatment, I find that, the period of loss of earnings has to be taken as six months. Accordingly, the compensation for loss of earnings of the petitioner is modified as Rs.33,000/- (5,500 x 6). On deducting the amount of Rs.9,000/- already awarded, the petitioner is entitled for an enhanced compensation of **Rs.24,000/-** (33,000 - 9,000) under the said head.
10. Towards compensation for permanent disability, the petitioner was awarded an amount of Rs.35,640/-. While assessing the compensation for permanent disability, the Tribunal has scaled down the percentage of the disability of the petitioner from 17% to 9%. The reason given by the Tribunal for pegging down the percentage of disability given in paragraph No.22 of the award is as follows:-
_“22. Ext.A14 shows that the doctor examined the applicant on 24.07.2014. The accident had_
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_taken place on 17.12.2006. It was after a long gap that the doctor examined the applicant. The percentage of disability might have increased in the intervening period due to several reasons. The fact that the applicant had undergone treatment on different occasions during the intervening period is relevant to be considered. In said back ground, I find difficult to accept the percentage of disability as estimated in Ext.A14. In my considered view, percentage of liability can be reasonably fixed at 9%. It is ordered accordingly.”_
I do not agree with the said finding of the Tribunal. The Tribunal went wrong in holding that the percentage of disability might have increased in the intervening period due to several reasons. If the disability assessed by the Doctor was found to be wrong, the Tribunal ought to have referred the petitioner to a Medical Board. The Tribunal cannot _suo motu_ reduce the percentage of disability on the inference that the percentage of disability might have increased in the intervening period due to several
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reasons. Therefore, I take the percentage of loss of earning capacity of the petitioner, a carpenter as 17%, the same as the percentage of permanent disability assessed in Ext.A14 certificate. Accordingly, the compensation for permanent disability is re-assessed as Rs.1,23,420/- (5,500x12x11x17%). Since the petitioner was already awarded an amount of Rs.35,640/-, he is entitled for an amount of **Rs.87,780/-** (1,23,420 - 35,640) additionally under the said head.
11. Towards bystander expenses, the petitioner was awarded an amount of Rs.1,000/-. The petitioner was hospitalised for 75 days. Under the said head, the petitioner is entitled for an amount of Rs.11,250/(150x75 days). After deducting the amount awarded by the Tribunal, he is entitled to get **Rs.10,250/-** (11,250 – 1,000) more under the said head.
12. Towards pain and suffering, though the
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petitioner claimed an amount of Rs.40,000/-, only an amount of Rs.17,500/- has been awarded by the Tribunal. Taking into account the nature of the injuries sustained by the petitioner, I find that, an amount of Rs.23,000/will be a just and reasonable compensation. Therefore, the petitioner is entitled for an additional sum of **Rs.5,500/-** (23,000 – 17,500) under the said head.
13. For loss of amenities and enjoyment in life, only an amount of Rs.11,880/- has been awarded by the Tribunal. Taking note of the injuries sustained by the petitioner, the percentage of disability and the nature of employment of the petitioner as a carpenter, I find that, an amount of Rs.40,000/- can be awarded under the head loss of amenities and enjoyment in life. Since the petitioner has already been awarded an amount of Rs.11,880/-, he is entitled for an enhanced compensation of **Rs.28,120/-** (40,000 - 11,880)
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under the said head.
14. I find that, the compensation awarded under other heads is just and reasonable.
15. Accordingly, the petitioner is entitled for an amount of **Rs.1,55,650/-** (24,000+ 87,780+10,250 + 5,500 + 28,120) as enhanced compensation. The enhanced compensation under various heads is
tabulated as follows:-
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**----- Start of picture text -----**<br>
Sl. Head of claim Amount Amount Enhanced<br>No. claimed awarded amount<br>(in (in<br>Rupees) Rupees)<br>1 Loss of earning 50,000 9,000 24,000<br>-<br>2 Transportation 2,000 2,000<br>expenses<br>-<br>3 Extra Nourishment 2,000 1,000<br>-<br>4 Damage to clothing 1,000 500<br>-<br>5 Medical expenses 2,500 2,000<br>6 Bystander's expenses 1,000 1,000 10,250<br>7 Pain and Sufferings 40,000 17,500 5,500<br>8 Loss of amenities and 70,000 11,880 28,120<br>enjoyment in life<br>9 Permanent disability 2,00,000 35,640 87,780<br>Total 3,68,500 80,520 1,55,650<br>**----- End of picture text -----**<br>
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16. The 3[rd] respondent Insurance Company shall deposit the said amount with 9% interest per annum from 29.05.2007 till realisation with proportionate costs, within a period of two months from the date of receipt of a copy of this judgment.
The appeal is disposed of as above.
## **Sd/-**
**MURALI PURUSHOTHAMAN JUDGE**
SPR
