N.R. Renganathan v. Shaju V. M., Retheesh and National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939 MACA.No. 2932 of 2014 () ------------------------AGAINST THE AWARD IN OPMV 624/2011 of ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 11-07-2014 APPELLANT/PETITIONER: --------------------------- N.R.RENGANATHAN, AGED 40 YEARS S/O.RAMAN,NAYARUSSERY HOUSE, NEAR POST OFFICE, ANGANDIYOOR.P.O., THRISSUR DISTRICT. BY ADV. SRI.K.SUNILKUMAR ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. SHAIJU.V.M., S/O.MANI, VALIYAPARAMBIL HOUSE, KEDAMANGALAM, EZHIKKARA.P.O., NORTH PARAVUR, ERNAKULAM DISTRICT-683 513 2. RETHEESH, S/O.SATHYAN,VAZHAPARAMBIL HOUSE, NEAR KURUTHIPPADAM BHAGAVATHI TEMPLE, PARAYAKKAD KARA, VADAKKEKARA.P.O., NORTH PARAVUR-683 513 3. NATIONAL INSURANCE CO. LTD., 1ST FLOOR MUNICIPAL SHOPPING COMPLEX, MAIN ROAD NORTH PARAVUR-683 513. R3 BY ADV. SRI.RAJESH THOMAS R BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------M.A.C.A.No.2932 of 2014 -------------------------------Dated 20[th] June, 2017 ## **JUDGMENT** ## **Ravikumar, J.** The injured petitioner comes up in appeal dissatisfied with and aggrieved by the quantum of compensation granted by the Additional Motor Accidents Claims Tribunal, North Paravur as per the judgment in O.P.(M.V)No.624 of 2011. The accident that constrained him to file the said claim petition under Section 166 of the Motor Vehicles Act occurred on 23.7.2011. On that fateful day, while he was waiting for bus at Municipal Bus Stand, North Paravur, the offending vehicle, a service bus bearing Reg.No.KL-7V/5909 driven by the second respondent knocked him down. He sustained serious injuries. He had been an inpatient for a period of seven days. It is seeking compensation for the injuries sustained in the said accident that he filed the aforementioned claim petition. The claim was limited to ₹1,50000/-. Before the Tribunal, the appellant got himself examined as PW1 besides adducing documentary evidence consisting of Exts.A1 to A11. No evidence, either oral or documentary, was adduced by the respondents. The Tribunal on considering the rival contentions and M.A.C.A.No.2932 of 2014 2 evaluating the evidence on record granted a total compensation of ₹72,000/- with interest at the rate of 8% per annum from the date of petition till realisation. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent, the insurer of the offending vehicle. 3. It is submitted by both sides that there is no dispute regarding the accident, cause of the accident as also the liability of the third respondent to indemnify the insured owner of the offending vehicle. In such circumstances, we will proceed to consider the claim of the appellant for enhanced compensation. 4. Evidently, the Tribunal did not grant any compensation towards permanent disability. As per order dated 16.12.2014 in I.A.No.3822 of 2014 filed in the captioned appeal this Court issued a direction to the appellant to appear before a Medical Board. The Superintendent of Medical College Hospital, Thrissur was directed to constitute a Medical Board to assess the permanent disability, if any, of the appellant. Pursuant to the said order, the Superintendent of M.A.C.A.No.2932 of 2014 3 Medical College Hospital constituted a Medical Board and the permanent disability of the appellant was assessed. A copy of the medical certificate dated 16.2.2016 was forwarded to this Court. The same is marked as Ext.C1. Going by the certification thereunder the whole body permanent disability of the appellant is 43.2%. Since it is a certificate issued by a duly constituted Medical Board pursuant to an order of this Court and in the absence of any reason to disagree with the certification regarding the extent of permanent disability we are of the view that the entire percentage of the disability assessed by the Board can be taken into account for the purpose of granting compensation for permanent disability. Going by the evidence on record, the appellant was aged 37 years at the time of the accident. The multiplier applicable for persons belonging to the age group of 3640, going by the schedule given in the decision in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ is `15'. The Tribunal fixed the monthly income of the appellant as 6,000/-.₹ The learned counsel for the appellant submitted that the Tribunal has ignored the evidence tendered by the appellant in support of his claim that he was working as a tailor and was earning 15,000/- per month.₹ The learned counsel appearing for the third respondent submitted that besides the oral testimony of the appellant no evidence whatsoever was M.A.C.A.No.2932 of 2014 4 adduced by him to establish his contention regarding the occupation and income. True that, the appellant had not adduced any evidence other than his own oral evidence in support of his contention regarding the occupation and income. Evidently, the appellant was cross examined by the third respondent. It is clear that the third respondent could not shatter the evidence of the appellant. In such circumstances, we do not find any reason to disbelieve the claim of the appellant that he was a tailor by profession. He claimed 15,000/- as his monthly₹ income. There is no evidence regarding the income. It is to be noted that even while tendering evidence as PW1 the appellant had not deposed anything regarding the income. In such circumstances, in the absence of any evidence to establish the income, we do not find any reason to hold that the Tribunal went wrong in fixing the monthly income of the appellant notionally. However, the Tribunal fixed the monthly income only as 6,000/-. The question is whether the said₹ income fixed by the Tribunal invites any interference. Two factors have to be taken into account for considering this question. 5. The accident occurred on 23.7.2011. At that point of time, the appellant was aged only 37 years and nothing is on record to take that he was not then an able bodied person. Even in the absence M.A.C.A.No.2932 of 2014 5 of any evidence regarding the income, we are of the considered view that taking into account the aforesaid aspects and also the fact that he was then a tailor by profession it is only appropriate to fix the monthly income of the appellant as 7,500/-. It is fixed accordingly. The₹ Tribunal after fixing the monthly income of the appellant as 6,000/-₹ effected a deduction of 1/3[rd] of his income. Since it is a claim for personal injury there was absolutely no reason for effecting any such deduction. In such circumstances, the entire income fixed as monthly income of the appellant viz., 7,500/- has to be taken for calculation₹ purpose. Taking into account the relevant factors as mentioned above, compensation for permanent disability has to be assessed. On such assessment, the appellant would be entitled to get an amount of ₹5,83,200/- (7500 x 12 x 15 x 43.2/100) as compensation for permanent disability. The Tribunal took the period of loss of earning as two months. Retaining the same period, but taking the monthly income as 7,500/- the appellant would be entitled to get an amount of₹ ₹15,000/-. The Tribunal has already granted an amount of 8,000/-.₹ After deducting the said amount the appellant would be entitled to get ₹7,000/- additionally under that head. Towards loss of amenities, the Tribunal granted only an amount of 10,000/- as against a claim for₹ ₹25,000/-. Considering the fact that the appellant had sustained visual M.A.C.A.No.2932 of 2014 6 disability as also aesthetic deficit and other defects and that the nature of injuries sustained by him in the accident resulted in a permanent disability of 43.2%, we are of the view that there was no reason to partially decline the claim made towards loss of amenities and accordingly, we hold that the appellant would be entitled to get ₹15,000/- more under the said head. The Tribunal has granted ₹1,000/- as transportation expenses. We are inclined to grant 1,000/-₹ more under that head. No amount was granted towards the claim for damage to clothing. The appellant claimed 500/-. We see no reason₹ to decline the said claim. In such circumstances, 500/- is granted as₹ damage to clothing. 6. In the light of the assessment and enhancement made by us, the appellant would be entitled to get a total additional compensation of 6,06,700/-. The additional compensation will carry₹ interest at rate of 8% per annum from the date of petition till realisation. The third respondent is directed to deposit the said amount along with interest within a period of two months from the date of receipt of copy of this judgment. It is to be noted that the appellant had limited his claim to 1,50,000/-. Therefore, in the light of the₹ provisions under Rule 397 of the Motor Vehicles Rules, 1989, before M.A.C.A.No.2932 of 2014 7 releasing the amount awarded and deposited the Tribunal shall deduct the balance court fee payable taking into account the additional compensation awarded. There will be no order as to costs. The appeal is disposed of accordingly. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS