Navas v. G. Ragupathy, K. Sakthivel and The New India Assurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938 MACA.No. 539 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 919/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 08-11-2011 APPELLANT: ------------ NAVAS, S/O.ISMAIL, RESIDING AT CHEMMANADA, ERUMAYOOR PALAKKAD DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENTS: - ---------------- 1. G. RAGUPATHY, S/O.GANAPATHY GOUNDER, RESIDING AT GANAPATHY GOUNDER THOTTAM, K.G.CHAVADI, MADUKKARAI, COIMBATORE, TAMILNADU 641 105. 2. K.SAKTHIVEL, S/O.KALLAPPAN, RESIDING AT 10/AYYANPATHI, C.K.PUDUR, K.K. CHAVADI, COIMBATORE, TAMILNADU 641 001. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE-IV, S.N.V. CHAMBERS , III FLOOR, 482/483, CROSS CUT ROAD GANDHIPURAM, COIMBATORE, TAMIL NADU 641 012. R3 BY ADV. SRI.P.G.GANAPPAN BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.539 of 2012 -------------------------------Dated 19[th] May, 2016 ## **JUDGMENT** ## **K.P.Jyothindranath, J.** This appeal is preferred by the injured claimant in O.P.(M.V) No.919 of 2006, on the files of the Motor Accidents Claims Tribunal, Palakkad. The challenge is against the award dated 8.11.2011 made in the above referred O.P.(M.V). 2. The relevant facts for consideration of this appeal are as follows:- On 20.2.2006 at about 9.15 a.m., while the appellant herein was riding a motor bike bearing Reg.No.KL-8P/4224, through Coimbatore - Palakkad road, it met with a motor vehicle accident and in that accident the appellant herein sustained very grievous injuries. The case of the appellant is that a Tractor which came from Ettimadal - Kallyapuram road hit against his motor bike and further the wheel of the Tractor ran over his leg and injuries caused. It is the further case of the appellant that the accident occurred due to the negligence of the driver of the Tractor. A claim petition was moved before the Motor M.A.C.A.No.539/2012 2 Accidents Claims Tribunal, Palakkad arraying the owner, driver and insurer of the Tractor as the respondents. After taking evidence, the Tribunal awarded a total compensation of 5,25,250/-. Aggrieved by₹ the said quantum of compensation, this appeal has been preferred. 3. When this appeal came up for hearing the counsel for the appellant submitted before us that here is a case of amputation of right leg below knee. It is also submitted that it is not only a case of amputation of leg but there was also a fracture on the femur of the left leg. It is the further submission before us that even though it is a case where there is amputation below knee, the Tribunal adopted only 37% disability for the assessment purpose. It is also submitted before us that no compensation was awarded towards future treatment. The compensation awarded towards `loss of amenities and conveniences', transportation expenses' etc. are also on a lower side. Hence for getting a just compensation, an interference of this Court is warranted. 4. The appellant was working in Oman. He produced an employment certificate and marked the same as Ext.A21. The income of the appellant can be seen as 15,000/- therein. But, the said fact₹ was not considered by the Tribunal and only a notional income of M.A.C.A.No.539/2012 3 ₹ 4,000/- was fixed for consideration. This aspect is also under challenge. 5. We have heard the learned counsel for the 3[rd] respondent, Insurance Company. The learned counsel appearing for the 3[rd] respondent submitted before us that an interference is not warranted in this case. Even though so called document of employment certificate is seen produced, it is neither proved nor there is a certification by the Embassy of India to show the genuineness of the same. Under such circumstances, the Tribunal rightly discarded the same and a notional income is taken for calculation. It is also submitted before us that a doctor is seen examined as PW1 by the claimant and there is evidence to the effect that the percentage of disability is 37%, which was adopted by the Tribunal for the calculation purpose. Thus, a just compensation on that head is given by the Tribunal. 6. In this case, the positive case of the appellant is that he was working as a Cook in Oman. The appellant is not seen examined before the Tribunal. As highlighted by the counsel for the Insurance Company, the employment certificate is not seen attested by the M.A.C.A.No.539/2012 4 Embassy/Consulate of India. When the said certificate is not seen proved, it may not be proper to give reliance upon the same. But, at the very same time, it can be seen that the claimant was aged only 27 years at the time of the accident. As per the decision of the Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited** reported in **((2011) 13 SCC 236)** the notional income of 4,500/- can be taken even in the case of a Coolie.₹ The accident in this case occurred in 2006. Thus, considering all these aspects, it will be only just and proper to consider an income of ₹ 5,000/- for calculation purpose. 7. In this case, the appellant sustained a crush injury below knee and the right leg was amputated below knee. The learned counsel appearing for the appellant brought to our notice that as per the schedule attached to the Workmen's Compensation Act, in a case of amputation below knee, 50% permanent disablement has to be considered. In this case, a doctor who was seen examined by the claimant had brought on record that the disability is 37%. But, surely, there is force in the submission of the counsel for the appellant. Thus, considering all these aspects, to arrive at a just decision, we are adopting 40% disability for calculation purpose. On going through the M.A.C.A.No.539/2012 5 award, it can be seen that for future treatment, no amount is seen awarded. The claim made therein is 1,00,000/-. It is a fact that this₹ is a case of amputation. When there is amputation, the appellant will naturally require an artificial limb or future treatment expenses will be therein. In this case, considering the fact that it is a case of amputation below knee as well as there is a fracture on the femur of the other leg, we feel that it will be only just and proper to grant an amount of ₹ 1,00,000/- on the head of `future treatment' that is, the amount as claimed by the appellant. On the head of `loss of earning' an amount of 12,000/- is seen granted by the Tribunal. We have already found₹ that his income can be taken as 5,000/-. Since it is a case of₹ amputation below knee coupled with fracture of femur, the period considered by the Tribunal to grant loss of earnings seems to be on a lower side. Thus, it can be seen that sine there is fracture on the femur also it will be only just and proper to consider six months' period for granting loss of earnings. Thus, an amount of 18,000/- is granted,₹ over and above the amount already granted on this head by the Tribunal. On the head of `Bystander expenses' the Tribunal granted ₹ 4,200/-. As already highlighted, since it is a case of amputation coupled with fracture of femur at least for a period of 90 days he will need the help of a skilled assistant. It is also pertinent to note at this M.A.C.A.No.539/2012 6 juncture that his wife also sustained injuries in the very same accident which is also evident from the common award passed by the Tribunal. Thus, on this head a sum of 18,300/- is granted, over and above the₹ amount already awarded. On the head of `transportation expenses' even though 30,000/- was claimed, only a sum of 2,000/- is seen₹ ₹ granted. The case of the appellant is that even though the accident occurred in Coimbatore, the appellant is a resident of Palakkad. Considering the submission and all these facts, an additional amount of ₹ 3,000/- is granted, over and above the amount already awarded on this head. On the head of `extra nourishment' a sum of 2,000/- is₹ seen awarded by the Tribunal. Here is a case of fracture of femur as well as a case of amputation. Considering the duration of treatment and all other attending circumstances a sum of 3,000/- is granted₹ over and above the amount already awarded. On the head of `pain and suffering' even though a sum of 50,000/- was claimed, only a₹ sum of 25,000/- is seen awarded by the Tribunal. Surely, it is a case₹ of amputation as well as fracture of femur. Thus, it will be only just and proper to grant 50,000/- on this head. Thus, an amount of₹ ₹ 25,000/- is awarded over and above the amount already granted on this head. The next head on which interference is warranted is `loss of amenities and conveniences'. The appellant was aged only 27 years at M.A.C.A.No.539/2012 7 the time of the accident. Only a sum of 10,000/- is seen granted on₹ this head. The claim of the appellant is that at least 1,00,000/-₹ should have been granted on this head. Considering the nature of the injuries and the age of the victim, we feel that it will be only just and proper to grant an amount of 1,00,000/- on this head. Thus, an₹ amount of 90,000/- is granted on this head over and above the₹ amount already awarded. The next aspect is that the amount that can be awarded for compensation towards disability factor. We have already found that, for calculation purposes, an amount of 5,000/-₹ can be adopted as his monthly income. More over, it is already found that 40% disability can be considered for assessment. Thus, the appellant will be entitled for a sum of 1,06,080/- (5000 x 12 x 17 x₹ 40_= 4,08,000/-, already a sum of 3,01,920/- awarded). ₹ ₹ 100 8. Thus, the appellant is entitled for a total additional compensation of 3,63,380/- which can be rounded as 3,63,500/-.₹ ₹ This additional amount will bear 8% interest per annum from the date of petition. The 3[rd] respondent shall deposit the amount within two months from the date of receipt of copy of this judgment. If the amount is not deposited/paid as directed above, within two months, it M.A.C.A.No.539/2012 8 will bear 9% interest from the date of petition. There will be no order as to costs. This appeal is allowed on the above terms. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS