Nikhil Jony v. Ayyappan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935** ## **MACA.No. 219 of 2007 ( )** ## **------------------------AGAINST THE AWARD IN OPMV 1539/2001 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 07-01-2005** **------------------** ## **APPELLANT/PETITIONER :** **---------------------------------------** **NIKHIL JONY, S/O.JONY THOMAS, THENETHUNIRAPPEL HOUSE, MULAKKULAM NORTH, PIRAVOM.** ## **BY ADV. SRI.GEORGE SEBASTIAN** ## **RESPONDENTS / RESPONDENTS :** **---------------------------------------------------** ## **1. AYYAPPAN, S/O.VALLON, KURUVIKKUNNEL HOUSE, MULAKKULAM NORTH, PIRAVOM.** **2. THE SECRETARY, MULAKKULAM SOUTH, PADASEHKHARA SAMITHI, MULAKKULAM NORTH P.O.,** **PIRAVOM.** **3. THE BRANCH MANAGER, NEW INDIA INSURANCE CO.LTD., THRIPUNITHURA.** **R1 & R2 BY ADVS. SRI.P.GOPAKUMARAN NAIR** **SRI.C.S.DIAS** **SRI.K.JOSE KURIAKOSE SRI.N.K.SUBRAMANIAN** **R3 BY ADVS. SRI.KKM.SHERIF** **SRI.P.A.MOHAMMED ASHROF** **SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.219 of 2007 -----------------------------------------------------------------Dated this the 18[th] day of October, 2013 J U D G M E N T ## S. Siri Jagan, J The claimant in O.P.(M.V.).No.1539/2001 before the Motor Accidents Claims Tribunal, Muvattupuzha is the appellant herein. He was injured in an accident, when a power tiller hit him, while he was standing by the side of a road. He fell on the tiller and his left thumb was amputated by the belt of the tiller. He filed the O.P., claiming compensation for the injuries and disability suffered by him in the accident. He himself and an eye witness gave evidence of PWs 2 and 3, to prove the accident and the cause of the accident as the negligence of the driver of the tiller. But the tribunal picked holes in the evidence of both witnesses and came to the conclusion that the accident did not happen the way, the claimant wanted the tribunal to believe. Consequently, the O.P., was dismissed. The appellant is challenging the said award. The contention of the appellant is that, there are no serious discrepancies in M.A.C.A. No.219 of 2007 2 the evidence of PWs 2 and 3. The appellant submits that the appreciation of the evidence by the tribunal is perverse. There is no serious discrepancy in the oral evidence adduced by the appellant as PW2 and PW3 eye witness. The respondents in the O.P., did not also choose to adduce any evidence whatsoever. Therefore the available evidence points only to the negligence of the driver of the tiller as the cause of the accident is the contention of the appellant. 2. On the other hand, the learned counsel for the insurance company would submit that the tribunal has correctly appreciated the evidence and there is serious discrepancy between the evidence of PW2 and PW3. PW2, the claimant himself did not mention about any ‘kayyala’, which prevented him from moving further to avoid the accident. On the other hand, PW3 came up with a contention that there was a ‘Kayyala’, which prevented the claimant from moving further away from the road to avoid the accident. These are serious M.A.C.A. No.219 of 2007 3 discrepancies, which would render the evidence adduced unacceptable, is the contention raised. 3. We have considered the rival contentions in detail. 4. We have gone through the evidence of PWs 2 and 3. We must remember that PW2 was a boy aged below 10 years at the time of accident. He has given evidence regarding the accident in a way normally a child would give evidence. We do not find any serious discrepancies in the same, as against the evidence of PW3. The fact that PW2 did not say about the ‘kayyala’, which prevented him from moving away from the vehicle is no ground to disbelieve PW2, at least regarding the cause of the accident. 5. On the other hand, the insurance company had different versions while cross examining PWs 2 and 3. The suggestion put to PW2 is that, he was watching the cleaning of the plough of the tiller, when he lost his foot hold and fell down sustaining injuries. On the other M.A.C.A. No.219 of 2007 4 hand, the cross examination of PW3 is to the effect that, PW2 while watching the cleaning of the plough fell down on the tiller itself. As such the insurance company did not have any consistent case. Apart from that, the respondents in the O.P., did not choose to adduce any evidence whatsoever, in support of their contentions. On an over all appreciation of the evidence available, we are of opinion that, the appellant had sufficiently proved negligence on the part of the driver of the power tiller in causing the accident. Therefore, the appellant is entitled to claim compensation for the injuries and consequent disabilities sustained by him in the accident, caused by the negligent driving of the power tiller by the first respondent herein. Consequently, the 2[nd] respondent, as the owner of the power tiller and the 3[rd] respondent, as the insurer of the power tiller are jointly and severally liable to pay compensation due to the appellant. 6. Unfortunately the tribunal has not chosen to assess the compensation, on account of the injuries M.A.C.A. No.219 of 2007 5 and disabilities sustained by him. The accident was of the year 1998. We are of opinion that it would not be in the interest of anybody to remand the matter to the tribunal, for consideration of the question of quantum of compensation. We are inclined to assess compensation due here itself based on the available documents. The appellant had produced Ext.A6 medical bills of 20 numbers, which add up to 10,864.73. We are inclined₹ to accept the same in proof of medical expenses. Accordingly, we award ₹ 11,000/towards medical expenses. The appellant was hopsitalised for 5 days. We award 500/- towards bystander's expenses. For extra₹ nourishment, we award 750/-. For transport, we award₹ ₹ 500/- and for pain and suffering, we award 15,000/-. In₹ Ext.A7 treatment certificate issued from the Specialist Hospital, Ernakulam, it is stated thus: “As per record Master Nikhil Johny, aged 11 years S/o Johny Theenethunirappel house, Mulakulam north, Piravom. OP No:19901, IP No:6679 was admitted to this hospital on 14.09.98 and discharged on 19.09.98 with alleged history of RTA on 14.09.98 at Mulamkulam north, Piravom. Patient sustained the following injuries. M.A.C.A. No.219 of 2007 6 = Crush amputation left thumb distal to metacarpophalangeal joint. Course and treatment:- = On 17.09.98 wound debridement and primary stump closure done. Status on discharge:- Amputated left thumb just distal to metacarpophalangeal joint. Follow up:- =Patient attended OP till 2.12.98”. 7. The Medical Superintendent of the same hospital has issued Ext.A8 disability certificate, certifying 30% disability, as per Section 2 of the Workmen’s Compensation Act 1923. The schedule to the Workmen’s Compensation Act is not applicable for assessment of compensation under Section 166 of the Motor Vehicles Act. We are inclined to take 10% as the disability for the purpose of calculating loss of earning capacity. Since, the appellant was a non-earning member, we take his notional annual income as 15,000/-. As per the decision₹ of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the multiplier applicable is 15. Calculated on that basis, the appellant would be entitled to ₹ 22,500/towards M.A.C.A. No.219 of 2007 7 compensation for loss of earning capacity (15,000x15x10%). Since, the appellant had suffered considerable disability, we are inclined to fix the compensation for loss of amenities and conveniences in life as 25,000/-. Altogether, the appellants would be₹ entitled to 65,250/- as total compensation. This amount₹ would carry interest at the rate of 9% per annum from the date of the claim petition, till date of payment. The 3[rd] respondent insurance company is directed to deposit this amount within two months. The M.A.C.A is allowed modifying the same as above. Sd/- S. Siri Jagan, Judge **==> picture [25 x 11] intentionally omitted <==** **==> picture [160 x 13] intentionally omitted <==** The figure “₹ 65,250/-” occurring in the last paragraph at page 7 of the judgment dated 18.10.2013 in M.A.C.A 219/2007 is corrected and substituted as “75,250/-”, vide order dated 26.11.2013 in I.A. No.3010/2013 in M.A.C.A 219/2007. // True Copy // P.A. to Judge ss