NESAMONY, N.G. BHAVAN v. P. CHELLAYYAN and Anr.; The Divisional Manager, New India Assurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943 ``` ## **`MACA NO. 276 OF 2009`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 1011/2004 OF MOTOR`** ## **`ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA`** ## **`APPELLANT/S:`** ``` NESAMONY, N.G.BHAVAN, POOMPALLIKONAM, MELPALA P.O.,, KANYAKUMARI DISTRICT. ``` ``` BY ADVS. SRI.SAJU.S.A SRI.VINOD RAVINDRANATH SMT.MEENA.A. SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR ``` ## **`RESPONDENT/S:`** ``` 1P.CHELLAYYAN AND ANOTHER PARASSALA P.O., THIRUVANANTHAPURAM DISTRICT. 2THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., THIRUVANANTHAPURAM. ``` ``` BY ADV M.HEMALATHA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- MACA No. 276 of 2009 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1011 of 2004 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in the appeal were respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 24.01.2004. He has averred in the claim petition that, while he was walking from Elanchira to Kanmmamoodu, on the above said day, he was knocked down by a Car bearing registration No.KL-2B/2161, driven by its driver in a rash and negligent manner. The car was owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant sustained serious injuries including a closed displaced fracture of the right medial malleolus and fracture of right fibula at the middle third and distal third junction. He was treated as an in-patient for a -3- MACA No. 276 of 2009 period of 13 days at Thilagaran Nursing Home, Nagarkovil. He was a coolie worker by profession and earning a monthly income of Rs.4,000/-. Hence, the appellant claimed a compensation of Rs.3,06,000/- from the respondents, which claim was limited to Rs.2,50,000/-. 3. The 1[st] respondent did not contest the proceeding. The 2[nd] respondent had filed written statement refuting the allegations in the claim petition. The 2[nd] respondent contended that the claim petition is bad for non-joinder of necessary parties. However, the 3[rd] respondent admitted that the car had a valid insurance coverage. The 2[nd] respondent also disputed the age, income and occupation of the appellant. 4. The appellant produced and marked Exts.A1 to A7 in evidence. The 2[nd] respondent produced the insurance policy, which was marked as Ext.B1. 5. The Tribunal, after analysing the pleadings and -4- MACA No. 276 of 2009 materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 2[nd] respondent an amount of Rs.56,630/- with interest and cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard Smt.Meena A. the learned counsel appearing for the appellant/petitioner, Smt.M.Hemalatha, the learned counsel appearing for the 2[nd] respondent insurer. 8. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the tribunal is reasonable and just. ## **Negligence and liability** 9. Ext.A4 charge sheet laid by the Police in Crime No.59 of 2004 proves that the accident was caused due to the negligence of the driver of the car. Indisputably, the 1[st] -5- MACA No. 276 of 2009 respondent was the owner and the 2[nd] respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext.A4 charge sheet. The 2[nd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent. ## **Income** 10. The appellant had claimed that he was aged 35 years and was a coolie worker. He stated that he was earning a monthly income of Rs.4,000/-. The Tribunal, for want of materials, fixed the notional monthly income of the appellant at Rs.2,000/-. 11. In **v. Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Ltd., [(2011) 13** **SCC 236],** the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per -6- MACA No. 276 of 2009 month. 12. Following the yardstick in the afore-cited decision and keeping in mind that the accident occurred in the year 2004, I re-fix the monthly income of the appellant at Rs.4,000/-. ## **Disability** 13. The appellant had produced Ext.A5 disability certificate issued by a Civil Surgeon of the Government Hospital, Parassala. The doctor has certified that the appellant has loss of sensation over his right ankle, he has limitation of 20 degree of dorsiflexion and 20 degree of planter flexion at the right ankle. Therefore, he has a permanent disability of 15% as per the Mac Bride scale. The Tribunal, without assigning any reason, scaled down the disability to 7%. 14. In **Raj Kumar v. Ajaykumar [2011(1) KLT 620(SC)]** , the Hon’ble Supreme Court has categorically held that what needs to be looked into in case of injury, is the -7- MACA No. 276 of 2009 functional disability of the injured claimant. It is also held that, if the Tribunal is not satisfied with the disability certificate produced before it, the Tribunal shall refer the injured claimant to a duly constituted medical board. It is further observed that, if the disability certificate is marked without any objection from the respondents, the same can be accepted on record. 15. In the instant case, Ext.A5 disability certificate was marked in evidence without any objection or protest from the respondents. The Tribunal, without assigning any reason, has scaled down the disability from 15% to 7%, which is patently erroneous. Moreover, the Tribunal has failed to refer the appellant to a medical board. In the above situation, considering the fact that the appellant was coolie worker by profession, and he has suffered a permanent disability as certified in Ext.A5, I fix his functional disability at 15% as assessed in Ext.A5. -8- MACA No. 276 of 2009 ## **Multiplier.** 16. The appellant was aged 35 years at the time of the accident. Therefore, the relevant multiplier is ‘16’ as laid down in **Sarla Varma and others v. Delhi Transport Corporation** . **and others [(2010) 2 KLT 802 (SC)]** ## **Loss due to disability** 17. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.4,000/-, his functional disability at 15% and the multiplier at 16, I award the appellant an amount of Rs.1,15,200/- towards ‘loss due to disability’ instead of Rs.26,880/- awarded by the Tribunal. ## **Loss of earnings** 18. The Tribunal has awarded the appellant an amount of Rs.4,000/- towards loss of earnings, which is too meager. Taking into account the fact that the appellant had sustained two -9- MACA No. 276 of 2009 fractures and that he has suffered functional disability of 15%, I hold that he was indisposed for a period of four months. In view of the re-fixation of the notional monthly income of the appellant at Rs.4,000/-, I award him an amount of Rs.16,000/under the head ‘loss of earnings’. ## **Bystander expenses and extra nourishment** 19. It is evident from Ext.A2 wound certificate and Ext.A5 disability certificate, that the appellant was treated as an in-patient for a period of 13 days. Considering the fact that the accident occurred in the year 2004, I award the appellant an amount of Rs.300/- per day for a period of 13 days towards ‘bystander expenses’, which works out to Rs.3,900/-; and Rs.150/- per day for a period of 13 days towards ‘extra nourishment’, which comes to Rs.1,950/-. ## **Pain and sufferings and loss of amenities** 20. The Tribunal has awarded an amount of Rs.10,000/- -10- MACA No. 276 of 2009 under the head ‘pain and sufferings’ and Rs.8000/- under the head ‘loss of amenities’. 21. On a consideration of the fact that the appellant had sustained two fractures, that he was treated as in-patient for a period of 13 days, that he was indisposed for a period of four months and he has sustained a functional disability of 15%, I award a further amount of Rs.10,000/- and Rs.12,000/-, respectively, under the heads ‘pain and sufferings’ and ‘loss of amenities’. 22. With respect to the compensations awarded under the heads ‘transportation’, ‘clothing’ and ‘medical expenses’, I find the same to be reasonable and just. 23. On an overall re-appreciation of the pleadings and materials on record and the law referred to the afore-cited decisions, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and recalculated -11- MACA No. 276 of 2009 ## above and given in the table below for easy reference. ||Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of earnings|4,000|16,000| |2|Transportation|1000|1000| |3|Damage to clothing &<br>articles|250|250| |4|Bystander|500|3,900| |5|Extra-Nourishment|0|1,950| |6|Medical expenses|6,000|6,000| |7|Pain and sufferings|10,000|20,000| |8|Loss of amenities|8,000|20,000| |9|Loss due to disability|26,880|1,15,200| |**Total**||**56,630**|**1,84,300**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,27,670/- with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit, and a -12- MACA No. 276 of 2009 cost of Rs.7,500/-. The 2[nd] respondent/ insurer is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and cost within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. sd/- **C.S.DIAS, JUDGE.** das