N.A. Ravindran S/o Ayyappakkutty v. Alavikutty P. and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 6[TH] DAY OF APRIL 2022 / 16TH CHAITHRA, 1944** **MACA NO. 2128 OF 2011** **AGAINST THE AWARD IN OPMV 744/2004 OF MOTOR ACCIDENTS CLAIMS** **TRIBUNAL, TRISSUR** ## **APPELLANT/PETITIONER:** **N.A.RAVINDRAN S/O.AYYAPPAKUTTY, NAYARASSERY HOUSE, P.O.PALAPETTY, MALAPPURAM DISTRICT.** **BY ADV SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 ALAVIKUTTY.P AND OTHERS, S/O.MOIDEEN, POOVATHINGAL HOUSE, CHERUKODE, CHATHANGOTTUPURAM, VANDOOR, MALAPPURAM DISTRICT-676 505.** - **2 ABDUL KHADER T.S., S/O.K.V.MAMMI, THARAKATH HOUSE, THAVALAKULAM, VELIYAMKODE PO., THRISSUR DISTRICT-680 001.** - **3 UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, THRISSUR DISTRICT-680 001. BY ADV SHRI.BIJU S.** ## **SR. P.MURALEEDHARAN-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2128 of 2011 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.744/2004 on the file of Motor Accidents Claims Tribunal, Thrissur. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant/claimant in a motor accident occurred on 07.07.2003 due to hit by Motorcycle bearing Registration No.KL-10/L-1785 while he was riding on motorcycle. Total compensation of Rs.2,20,750/- has been claimed. It is alleged that the accident happened due to the rash and negligent riding of the motorcyle bearing Registration No.KL-10/L-1785 by the 2[nd] respondent. 1[St] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. 2. Before the Tribunal, respondents 1 and 2 remained exparte. 3[Rd] respondent insurer filed written statement denying the negligence on the part of the 2[nd] respondent and admitting insurance coverage with respect to the offending vehicle. It is also contended that the accident M.A.C.A No. 2128 of 2011 **3** happened due to the rash and negligent riding of the appellant/claimant himself. It is also contended that 2[nd] respondent was not having valid driving license to drive a motorcycle, hence liability is also disputed. 3. Exts. A1 to A11 and X1 marked from the side of the appellant/claimant. Ext.B1 marked from the side of the 3[rd] respondent. There is no oral evidence from either side. On evaluation of the pleadings as well as documents, Tribunal found that the accident occurred due to the rashness and negligence on the part of the 2[nd] respondent, hence the 3[rd] respondent is held liable to indemnify the 1[st] respondent insured. Tribunal awarded a total compensation of Rs.66,200/- under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant (hereinafter be referred as claimant) approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Adv.P.Muraleedharan, filed vakalat on behalf of the 3[rd] respondent. Service of notice as against respondents 1 and 2 dispensed with. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent insurer. Lower court records M.A.C.A No. 2128 of 2011 **4** were called for and perused. 6. According to the learned counsel for the claimant, claimant was Clerk in Canara Bank, Edappal Branch. Due to the accident, he sustained serious injuries and consequent disability. Without proper evaluation of facts and circumstances, Tribunal awarded meager amount as compensation and hence he seeks for enhancement of compensation on all heads. 7. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 8. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the apex court has elaborately discussed the general principle relating to compensation in injury cases. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed in detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, M.A.C.A No. 2128 of 2011 **5** hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. 9. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:- Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 10. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 11. Ext.A8 is the salary certificate of the claimant which would prove his total salary as Rs.10,165.84/- during the relevant time. Ext.X1 M.A.C.A No. 2128 of 2011 **6** is a certificate issued by the Senior Manager of Canara Bank certifying that claimant is a permanent employee of the Bank. As per which, the leave details is as follows; |Date of leave availed|Date of leave availed|No. of<br>days|Nature of leave availed| |---|---|---|---| |From|To||| |08.07.2003|29.08.2003|53|Sick leave on halfpay| |01.09.2003|30.09.2003|30|….do....| |06.10.2003|10.10.2003|5|Privilege leave on medical<br>grounds| |13.10.2003|18.10.2003|6|….do....| |21.10.2003|23.10.2003|3|….do....| |27.10.2003|31.10.2003|5|….do....| |17.11.2003|20.11.2003|4|….do....| 12. In total he was on sick leave on half pay for 83 days and he was on leave on medical ground for 23 days. Total 103 days, he was on leave. According to the learned counsel for the claimant, towards loss of salary, Tribunal awarded only Rs.17,172/-. When an employee is forced to undergo medical treatment for long, even if the employee have availed eligible leave for undergoing treatment, for the purpose of loss of earnings in a claim under Section 166, the claims Tribunal has to compensate the employee for the loss of leave period by awarding M.A.C.A No. 2128 of 2011 **7** apportionate amount. (See **George v. Krishna Venu & Others [2020 (3) KHC 784 : 2021 ACJ 1691]** ). Hence, the claimant has to be compensated for 103 days of leave availed by him. Monthly salary as per Ext.A8 is Rs.10,165.84/-. Hence, towards loss of earnings for 103 days, claimant is entitled to get Rs.33,774/-. Deducting the amount already warded, the balance would be **Rs.16,602/-.** 13. Next argument of the learned counsel is with regard to the disability suffered and compensation awarded by the Tribunal under that head. Ext.A11 is the disability certificate issued by Associate Professor of Orthopaedics, Medical College Hospital, Thrissur certifying 12% permanent disability. Claimant was initially treated at Najath Hospital, Ponnani with contusion on right knee joint with haemarthrosis, L.W on right knee over patella ½ x ½ x ½ cm in size and cruciate ligament injury in right knee joint. Ext.A6 discharge summary issued from K.Kuppuswamy Naidu Memorial Hospital, Pappanaickenpalayam, Tamilnadu in which final diagnosis is sub acute anterior cruciate ligament insufficiency (rt) knee. There he had undergone inpatient treatment for arthroscopy (rt) knee, anterior cruciate ligament reconstruction (semi tendinosus/gracillis (4) graft). Tribunal found that medical bills for Rs.475/- alone produced. That is born out from Ext.A7 M.A.C.A No. 2128 of 2011 **8** series also. 14. Ext.A11 disability certificate issued by the Associate Professor of Orthopaedics, Medical College Hospital, Thrissur certifying 12% permanent disability in which the Doctor specifically noted that anterior instability (r) knee with giving way of (r) knee. However, Doctor was not examined and Tribunal taken only 6% disability. Ext.A11 disability certificate has been marked without any objection. As per **Raj Kumar** (supra), if at all the Tribunal is not satisfied with the medical evidence, it has a duty to refer the claimant to a duly consisted Medical Board for proper assessment of disability. In **Karunakaran @ Kannan v. Abdul Rasheed and Others [2015 5 KHC 355]** , a full Bench of this Court held that there is no hard and fast rule that in all cases, invariably the Doctor should be examined in order to accept permanent disability certificate issued by him. Hence, taking into account the nature of injuries and procedures of treatment undergone by him, permanent disability can be taken as 8% instead of 6% taken by the Tribunal. 15. Claimant is a Clerk in Canara Bank. So as per **Raj Kumar (supra)** , there will not be any loss of income to the claimant since he continue in service. Hence, compensation to be awarded under the head of future loss of earning power would be far less than in other M.A.C.A No. 2128 of 2011 **9** cases of self employed persons or persons in private sector. The injury and consequent disability would reduce his opportunity to take up post retirement employment. Hence, claimant is entitled for compensation on that account. He was aged 43 years old at the time of accident. Accident was in the year 2003. So as per **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** monthly income of the claimant can notionally be taken as **Rs.4,000/-.** 16. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '9' towards post retirement period. So, towards permanent disability, claimant is entitled to get 4,000x12x8x9/100=34,560/-. Deducting the amount already awarded, the balance would be **Rs.7,560/-** (34,560-27,000). 17. The learned counsel would contend that inspite of serious injuries sustained by the claimant, no amount was awarded towards loss of amenities and the amount awarded towards pain and suffering is also very less. In view of the facts and circumstances, an amount of Rs.20,000/- is awarded towards pain and suffering. Deducing the M.A.C.A No. 2128 of 2011 **10** amount already granted, the balance would be **Rs.4,000/-** (20,00016,000). In view of period of treatment undergone by him, an amount of **Rs.15,000/-** can be further awarded towards loss of amenities. Hence, the claimant is entitled to get an enhanced compensation of Rs.43,162/(16,602+7,560+4,000+15,000) rounded to **Rs.43,200/-** . 18. In the result, claimant is allowed to realize an enhanced compensation of **Rs.43,200/-** (Forty three thousand two hundred only) in this appeal, which will carry interest at the rate of 6.5% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 19. The appeal has been filed with a petition to condone delay of 179 days. While condoning the delay by order dated 23.12.2011 in CMA.No.3140/2011), it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 179 days is excluded. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details M.A.C.A No. 2128 of 2011 **11** of the Bank Account Number and IFSC Code of the branch) before the Tribunal with copy to the Standing Counsel for insurer within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. SD/- **M.R.ANITHA** rps/ **JUDGE**