National Insurance Co. Ltd. v. Mohanan @ Kochumon & Others

MACA NO. 1036 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 17[TH] DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943 MACA NO. 1036 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1780/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/S:** NATIONAL INSURANCE CO. LTD. KOTTAYAM, REP. BY THE MANAGER,, KOCHI REGIONAL OFFICE, M.G.ROAD,, ERNAKULAM, COCHIN-35. BY ADV SRI.E.M.JOSEPH ## **RESPONDENT/S:** 1 MOHANAN @ KOCHUMON & OTHERS S/O.GOPI SADANANDAN, ANCHARIKKAL (H),, MUTHALAPARA KARA, ANGANAVADI (NEAR),, MADAPPALLY P.O., CHANGANACHERRY-686 546. 2 PRASAD.P.K KANJIRATHANAM HOUSE, PALACKATHAKIDI KARA,, KUNNAMTHANAM P.O., PATHANAMTHITTA-689 581. 3 RENJITH R.NAIR RENJITH BHAVANIL, PALACKATHAKIDI P.O.,, KUNNAMTHANAM, PATHANAMTHITTA-689 581. BY ADV SRI.SURIN GEORGE IPE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1036 OF 2011 2 ## **JUDGMENT** The appellant/insurer was the 2[nd] respondent in OP(MV) No.1780/2007 on the file of the Motor Accidents Claims Tribunal, Kottayam. The 1[st] respondent in the appeal was the petitioner and the respondents 2 and 3 in the appeal were the respondents 1 and 3 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner 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 04.05.2007. It was his case that, while he was riding pillion on a motor cycle bearing registration No.KL 02/B 4274, ridden by his friend, an autorikshaw bearing registration No.KL 03/M 2349 (autorikshaw), driven by the 3[rd] respondent in a rash and negligent manner, hit the motor cycle. The autorikshaw was owned by the 1[st] respondent and insured with the 2[nd] respondent. The petitioner was a mason by profession and earning a monthly income of Rs.6,000/-. The petitioner sustained serious MACA NO. 1036 OF 2011 3 injuries including a fracture of the proximal tibia cum united supracondylar fracture of the right femur. He became permanently disabled. The petitioner, claimed a compensation of Rs.14,06,000/- from the respondents, which was limited to Rs.10,00,000/-. 3. The 3[rd] respondent did not contest the proceedings. The 1[st] respondent filed a written statement contending that the accident occurred due to the negligence of the rider of the motor cycle. However, it was stated that the autorikshaw had a valid insurance coverage with the 2[nd] respondent. 4. The 2[nd] respondent filed a written statement, admitting that the autorikshaw had a valid insurance coverage. The 2[nd] respondent disputed the age, income and occupation of the petitioner. 5. The rider of the motor cycle, who also sustained injuries in the same accident, filed OP(MV) No.1779/2007 before the same Tribunal, seeking compensation. 6. The Tribunal consolidated and jointly tried the original petitions. The petitioners in the two original petitions were examined as Pws 1 and 2 and Exts.A1 to A15 MACA NO. 1036 OF 2011 4 were marked on their side. The respondents did not let in any evidence. The Tribunal by its common award allowed the captioned original petition by permitting the petitioner to realise an amount of Rs.7,77,000/- with interest and cost from the 2[nd] respondent insurer. 7. Aggrieved by the impugned award, the 2[nd] respondent is in appeal. 8. Heard; Sri.E.M.Joseph, learned counsel appearing for the 2[nd] respondent/insurer and Sri.Surin George Ipe, learned counsel appearing for the 1[st] respondent/petitioner. 9. Sri.E.M.Joseph contended that the Medical Board had as per Ext.A12 disability certificate assessed the permanent disability of the petitioner at 75%. However, the Tribunal fixed the permanent disability of the petitioner at 100% which is erroneous and wrong. He relied on the decision of the Honourble Supreme Court in **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620] to fortify his contention that what has to be looked into while awarding compensation for injury is to assess the functional disability of the injured. Nevertheless, in the instant case, the 5 MACA NO. 1036 OF 2011 Tribunal based on the surmises and conjectures has unilaterally fixed the permanent disability at 100% which is perverse and wrong. He hence prayed that the appeal be allowed and the compensation for loss due to disability may be scaled down. 10. Sri.Surin Joseph Ipe defended the award and countered the above submission by stating that as the petitioner is a mason by profession and he has sustained serious injuries to his leg and he is presently moving around with a walker. The petitioner is permanently disabled to the extent of 100%. Hence, there is no error in the award passed by the Tribunal. 11. The sole question that emerges for consideration in the case is whether the amount of compensation awarded by the Tribunal for loss due to disability is justifiable or not. 12. The petitioner got his disability assessed by the Medical Board attached to the Medical College Hospital, Kottayam. The Medical Board certified that the petitioner has permanent disability to the extent of 75%. It was noted that the petitioner has had a fracture of the right femur, MACA NO. 1036 OF 2011 6 right tibia with gross shortening ankylosis of right knee, partial ankylosis of right ankle and ostiomyelites of femur. It is in such circumstances, that the permanent disability was assessed at 75%. 13. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has succinctly laid down that what needs to be looked into while awarding compensation in the case of injury, is to assess the functional disability of the injured. 14. In the instant case, the Tribunal without any reasoning has fixed the functional disability of the petitioner at 100%. 15. Going by the injuries reflected in Ext.A12 and the fact that the petitioner is a mason by profession, I do not find that the fixation of disability at 100% is justifiable or correct. The petitioner does not have a case that he is unable to take up any other avocation due to the disability. Moreover, he was only aged 41 years at the time of the accident. 16. On an appreciation of the injuries sustained by the MACA NO. 1036 OF 2011 7 petitioner, I am of the considered opinion that the petitioner can certainly carry on with some other avocation. Hence, I hold that the petitioner's functional disability has to be fixed as assessed in Ext.A12 certificate i.e. 75%. 17. Accordingly, I fix the petitioner's functional disability at 75% based on Ext.A12 assessment and the other materials available on record. ## **Multiplier** 18. It is seen that the Tribunal has fixed the multiplier at 15, which is also erroneous. In view of the law laid down in **Sarla Varma vs. Delhi Transport Corporation:** 2010 (2) KLT 802 the relevant multiplier is '14', as the petitioner was 41 years at the time of accident. 19. Accordingly, I refix the compensation for loss due to disability at Rs.4,41,000/- i.e., taking his income at Rs.3,000/- multiplier at 14 and disability at 75%. 20. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part by scaling MACA NO. 1036 OF 2011 8 down the compensation awarded by the Tribunal by an amount of Rs.1,89,000/-. This Court at the time of admitting the appeal and staying the operation of the impugned award had directed the appellant/insurer to deposit 80% of the compensation amount and permitted the petitioner to withdraw the same. In view of the refixaion of the compensation by scaling it down by an amount of Rs.1,89,000/-, the appellant/insurer is ordered to pay the amount due to the 1[st] respondent/petitioner as fixed in this judgment, but with interest and cost as fixed in the impugned award. If there is any remaining amount to be paid, the same shall be deposited by the appellant/insurer within a period of 60 days from the date of receipt of a certified copy of this judgment and in such case the Tribunal shall disburse the compensation amount to the 1[st] respondent/petitioner in accordance with law. **C.S.DIAS, JUDGE** rkc