P. C. Varghese v. Chathukutty and Others (MACA No. 1427 of 2008)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 MACA.No. 1427 of 2008 ----------------------OPMV.1015/1999 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... ## APPELLANT/PETITIONER: -------------P.C.VARGHESE, S/O.CHERIAN MATHUNNI, PAILATHUPUTHEN PARAMBIL HOUSE, UMAYATTUKARA, KALLISSERY.P.O, CHENGANUR. BY ADV. SRI.S.SUBHASH CHAND SMT.M.P.MARY RESPONDENTS/RESPONDENTS: - --------------- 1. CHATHUKUTTY, S/O.RAMAN,CHIRACKAL EZHUVANPARAMBIL HOUSE KURUMPILAVU, CHALAKUDY, TRICHUR. 2. MANAGING DIRECTOR, K.S.R.T.C THIRUVANANTHAPURAM. 3. NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE, VAZHUTHAKAD, THIRUVANANTHAPURAM. ADV. SRI.LAL GEORGE FOR R3 SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **J.B.KOSHY & THOMAS P. JOSEPH, JJ. ================================ M.A.C.A.No.1427 of 2008 =============================== Dated this the 26[th] day of November, 2008.** ## **J U D G M E N T** ## **KOSHY, J.** Appellant-claimant sustained serious injuries in a motor accident that occurred on 22.4.1999. At the time of accident he was driving a tempo trax with Registration Number KL-4B/5682. A KSRTC bus driven by the 1[st] respondent and owned by the 2[nd] respondent hit the above tempo trax. Both vehicles were damaged. The bus was insured by the 3[rd] respondent - insurance company. Tribunal found that accident was occurred due to the negligence of the driver of the bus insured by the 3[rd] respondent. Originally, appellant made a claim for an amount of Rs.3,00,000/-. Later, it was amended to Rs.8,00,000/-. But total amount awarded by the Tribunal was only Rs.1,92,881/with interest at the rate of 7.5% per annum. The only dispute raised in this appeal is regarding the quantum of compensation. Ext.A5 is the wound certificate issued from the Medical College Hospital, Thiruvananthapuram, which shows that there was 2 **M.A.C.A.No.1427 of 2008** multiple fracture injuries in addition to several lacerations on the face, scalp, knee and forearm of the appellant. Exts.A6 and A8 are the treatment certificates. Exts. A7 and A10 are the discharge cards of the appellant. He was inpatient for a total of 60 days. These certificates also show that he was under treatment for a long period. Two surgeries were conducted on him, one for putting nail and another for removing the nail. Ext.A9 medical report cum disability certificate issued by the Doctor who treated him stated that he has difficulty in flexion at the hip and knee (Lt) lower limb and he has 30% restriction of hip movement and about 20% restriction of knee movement and his permanent disability was assessed at 50%. Thereafter, he was examined by the District Medical Board which issued Ext.A11 medical certificate, which reads as follows: “Sri.P.C.Varghese, Pallathuputhenparambil, Umayattukara, Kallissery, Chengannur was examined by the Medical Board held on 20/06/2002 and found that he sustained injuries in a road traffic accident as alleged. He had fracture of shaft of Femur (Lf) and Subtrachantic fracture femur (Lt). He had treatment at Medical College Hospital, Thiruvananthapuram with open reduction and internal fixation. He developed Osteomylities of left femer with sinus, which were removed, and wounds healed. 3 **M.A.C.A.No.1427 of 2008** Now he has limping on left side, with irregular scar left thigh, ankylosis of left knee with movements limited to an arc from 180˚ to 45˚. The left Hip is partially ankylosed with movement restricted to an arc from 180˚ to 45˚ flexion and restriction of rotation movement of left hip. He is unable to squat on the floor. The left knee shows secondary arthritic changes. The total permanent disability as per brides Scale is 25% (Twenty five percent). 2. On the reasoning that in the year 2000, disability was 50% and it was reduced in the year 2002 as 25%. Tribunal fixed a reduced disability of 20%. Ext.A9 was issued by a Doctor who treated him. After two years permanent disability was assessed by the Medical Board as 25%. The above assessment of disability is permanent which will not vary. There is no reason for disagreeing with the disability assessed by the Medical Board. There is no dispute that respondents also did not question the correctness or genuineness of the Medical Certificate issued by the Medical Board. Tribunal ought to have fixed 25% disability. With regard to the multiplier, Tribunal fixed it as 13. According to the Tribunal appellant was aged 44 years at the time of the accident. If that be so, 15 is the multiplier. Ext.A9, disability certificate dated 20.12.2001 shows that he was 45 years on 28.3.2000. If that be so, he will be at 44 years at the time of 4 **M.A.C.A.No.1427 of 2008** accident. But in Ext.A5 wound certificate his age is shown as 47 years and it was so stated because he was conscious when he was taken to the hospital. No authenticated proof of age was produced before the Tribunal. Therefore, Tribunal has taken 13 as multiplier as per the 2[nd] schedule. We feel no ground to change the same. The next question is regarding the monthly income. According to the appellant, he was earning Rs.8,000/per month. Tribunal found that there is no proof for the same. Appellant owns a tempo trax. He was having agricultural property and therefore it cannot be stated that he is a nonearning person. Accident occurred in the year 1999. When a person is driving his own vehicle, he must be getting sufficient income. He was maintaining a family. He was aged 45 at the time of accident. In the above circumstances, we fix Rs.3,000/as the monthly income. If that be so, compensation payable will be Rs.1,17,000/- (3000 X 12 X 25/100 X 13). Tribunal has awarded only Rs.46,800/-. So, additional compensation payable for disability and loss of earning power will be Rs.70,200/-. 5 **M.A.C.A.No.1427 of 2008** 3. Tribunal found that he was unable to do any work for a period of 13 months and awarded Rs.18,000/- for actual loss of earnings as there was prolonged treatment. Since we have fixed the monthly income of the appellant as Rs.3,000/- (as against Rs.1,500/- fixed by the Tribunal), appellant is entitled to get Rs.18,000/- more for actual loss of earnings. 4. It is contended that even though he claimed Rs.1,00,000/- for damages to the vehicle and bills were produced amounting to Rs.1,30,000/-, Tribunal did not award any damages for vehicle damage. In the original application, there was no claim for vehicle damage. That was included by way of amendment. Even though bills were produced, correctness of the bills were not proved. Surveyor was not examined. Survey report was not filed. There was no clear evidence regarding the extent of damage to the vehicle. For damages payable for vehicle damage, PW2, who was the insurer of his vehicle was examined. PW2 deposed that vehicle was insured by the New India Assurance Company Ltd. and he was the Branch Manager. He further stated that they have given Rs.33,000/- towards 6 **M.A.C.A.No.1427 of 2008** vehicle damage. It is also stated that as per the survey report vehicle damage is for Rs. 17,719/-. He further deposed in cross examination that if bills are produced, the company would have paid the full amount as per the survey report. Appellant was able to produce only genuine bills for Rs.33,000/- for the vehicle damage and that was reimbursed. The correctness of the medical bills are not proved. Counsel for the appellant relied on a decision of the Delhi High Court in _**Dr.A.C.Mehra v. Behari Lal and Another**_ (1998 ACJ 379) that amount paid on the basis of an insurance contract cannot be adjusted with compensation payable from the offending vehicle to the 3[rd] parties and rule of subrogation is not applicable. But we are of the view that, compensation payable for an accident is to set off the damage caused due to accident. If damages are recovered from one source, as a bonanza it cannot be recovered again. In any event, in this appeal, extent of the damage caused to the vehicle and the genuineness of the bills were not proved by him. Therefore, Tribunal is right in not granting damages for damage of the vehicle claimed by the appellant in the amended application. 7 **M.A.C.A.No.1427 of 2008** Therefore, total additional compensation payable will be Rs.88,200/- (Rs.70,200 + Rs.18,000/-). This amount should be deposited by the 3[rd] respondent -insurance company with 7.5% interest from the date of application till deposit. On deposit of the same, the appellant is allowed to withdraw the same. The appeal is allowed as above. ## **J.B.KOSHY, JUDGE** **THOMAS P. JOSEPH, JUDGE** bkn/-