P. T. Mathew @ Mathukutty v. Aby KuriaKose, Biju S and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** ## **FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938** **MACA.No. 1577 of 2011 ( ) --------------------------** ## **AGAINST THE AWARD IN OPMV 2003/2007 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 19-05-2011** ## **APPELLANT(S)/PETITIONER:** ## **-----------------------** ## **P.T.MATHEW @ MATHUKUTTY,** **PUTHIYAPARAMBIL (H), POLACHIRA BHAGAM, CHINGAVANAM KARA,, NATTAKOM VILLAGE.** ## **BY ADV. SRI.K.A.HASHIM** ## **RESPONDENT(S)/RESPONDENTS:** ## **--------------** ## **1. ABY KURIAKOSE,** **MANAKKADU VEEDU, GOMATHIKAVALA BHAGOM, CHINGAVANAM, NATTAKOM., PIN-686 013.** **2. BIJU S, KOTTAKAL MADOM (H), KURATHIKADU, MANNAR P.O,, ALAPPUZHA, PIN-688 001.** ## **3. THE NEW INDIA ASSURANCE CO.LTD,** ## **KAYAMKULAM,, PIN 690 502.** **R-3 BY ADV. SRI.LAL GEORGE R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1577 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of June, 2016** ## **J U D G M E N T** ## **C.T. Ravikumar, J.** This appeal is preferred by the claimant against the award dated 19.5.2011 in O.P.(M.V.)No.2003 of 2007 on the file of the Motor Accidents Claims Tribunal, Kottayam. 2. The appellant/claimant filed the above mentioned claim petition seeking compensation for the injuries sustained by him in a motor vehicle accident, on 2.11.2007. While he was standing near a petrol pump at Gomathi Kavala in Chingavanam at about 7 p.m., on that day, a maruti car bearing registration No.KL 04/J 4424 driven by the first respondent hit him and on getting jammed between a telephone post standing on the eastern side of the road and the car he sustained very serious injuries. Immediately he was taken to the Medical College Hospital, Kottayam. He remained there as an inpatient for 28 days. It is in the said circumstances that he filed the aforementioned claim petition seeking a compensation of Rs.11 lakhs. To establish 2 M.A.C.A.No.1577 of 2011 the claim, the appellant got himself examined as PW1 besides getting marked Exts.A1 to A8. The disability certificate issued by the Medical Board attached to the Medical College Hospital, Kottayam in respect of the petitioner is marked as a court document viz. as Ext.X1. On the side of the respondents there was no oral or documentary evidence. The Tribunal; on appreciating the evidence on record, passed the impugned judgment for a total compensation of Rs.4,53,055/- with interest at the rate of 7.5% from the date of petition till realization along with a cost of Rs.6,000/-. This appeal has been preferred seeking enhancement of the quantum of compensation. 3. We have heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent - Insurance Company. 4. From the rival contentions advanced before us it is evident that there is no dispute with respect to the accident, the valid insurance coverage of the offending vehicle at the time of the accident and also the cause of the M.A.C.A.No.1577 of 2011 3 accident as the negligence from the part of the first respondent. In short, in this appeal we are called upon to consider only the question whether or not the appellant is entitled to get enhanced the compensation under any of the heads. Virtually, as per order dated 14.10.2011 issuance of notice to the other respondents was dispensed with. 5. The main grievance of the appellant is that ignoring the specific assertion in the claim petition that he was a wood cutter by profession and was earning Rs.6,000/per month the Tribunal fixed the monthly income only notionally that too at Rs.3,500/- for calculation purpose. The learned counsel for the appellant contended that though the Tribunal took the entire percentage of permanent disability certified under Ext.X1 the Tribunal failed to consider the question as to what exactly is the percentage of the loss of earning power and consequently to grant due compensation thereunder and that the Tribunal had assessed compensation for permanent disability incurred, unreasonably low. It is contended that taking into account M.A.C.A.No.1577 of 2011 4 the fact that the appellant was a wood cutter and owing to the permanent disability incurred in the accident he was disabled from continuing with the said avocation the Tribunal ought to have granted compensation payable for loss of earning power, appropriately. The learned counsel further contended that compensation granted by the Tribunal under the heads damage to clothing, bystander expenses, loss of income, pain and sufferings, loss of amenities are also on the lower side. Though Ext.X1 revealed the fact that there was amputation below knee of the left leg the Tribunal did not consider the claim towards future medical expenses. Though an amount of Rs.50,000/was claimed under the said head the Tribunal did not grant any amount at all. 6. Per contra, the learned counsel appearing for the third respondent, the insurer of the offending vehicle contended that the Tribunal cannot be found fault with in fixing the monthly income of the appellant notionally at Rs.3,500/- as the appellant had not adduced any evidence in 5 M.A.C.A.No.1577 of 2011 support of his assertion regarding the occupation and income. It is further contended that a glance at the schedule appended to the impugned judgment would reveal that under all heads the Tribunal has granted adequate compensation. In such circumstances, it is contended that no appellate interference is called for. 7. We will firstly consider the question whether the computation of the compensation for permanent disability incurred in the accident warrants interference on any ground. For the purpose of assessing the said compensation, the Tribunal fixed the monthly income of the appellant as Rs.3,500/-. In this context it is to be noted that the appellant was aged 52 years at the time of the accident and the accident occurred on 2.11.2007. True that the appellant had failed to prove the occupation and income. However, in the contextual situation, it is only apposite to refer to the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** . M.A.C.A.No.1577 of 2011 6 Evidently, in that case is in respect of a coolie, who met with the accident in the year 2004, the monthly income was taken by the Hon'ble Apex Court as Rs.4,500/- per month. Therefore, the fixation of monthly income notionally in this case invites interference. Taking into account the age as also the year of the accident and the decision cited supra, we are of the view that the monthly income of the appellant for calculation purpose has to be fixed as Rs.5,000/-. It is fixed, accordingly. On appreciating the contentions of the appellant in the light of the evidence on record, we are also of the view that there is substance in the contention of the appellant that the Tribunal ought to have considered the loss of percentage of earning power and granted compensation under the said head. True that the appellant had failed to adduce evidence to establish that he was a wood cutter by profession during the period of accident. We are of the view that even if he is treated as a person eking his livelihood by engaging himself in coolie activities the fact that left leg was amputated below knee is certainly M.A.C.A.No.1577 of 2011 7 a matter which would reduce his earning power. Ext.X1 would reveal that ribs of the appellant viz 2[nd] to 7 were also fractured. The treatment records produced in this case would reveal the said aspects. In such circumstances, we are of the view that even if he is not treated as a wood cutter by profession and treated only as a coolie worker 70% has to be taken as the loss of earning power. With respect to the multiplier adopted by the Tribunal there is no grievance for the appellant and in fact it was reckoned with reference to the age of the appellant and in the light of the decision of Hon'ble Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** . There cannot be any doubt with respect to the position that in a claim petition filed under Section 166 of the M.V. Act the claimant is not entitled to compensation for permanent disability and then, compensation for loss of earning power. He can have compensation only under one of the said heads. For the purpose of calculating compensation for permanent disability the Tribunal took the entire M.A.C.A.No.1577 of 2011 8 percentage of disability certified under Ext.P7 viz., 47%. We are of the view that instead of granting compensation under the head permanent disability, he should have been compensated appropriately for loss of earning power taking note of the fact that the permanent disability had reduced his earning power. Therefore, taking monthly income as Rs.5,000/-, the multiplier as 11 and the percentage of loss of earning power as 70%, the appellant would be entitled to get compensation of Rs.4,62,000/- under the head loss of earning power. But the Tribunal has already granted an amount of Rs.2,17,140/-, as compensation for permanent disability. After deducting the said amount the appellant would be entitled to get an amount of Rs.2,44,860/additionally under that head. It is granted. Though the appellant claimed Rs.50,000/- towards future medical expenditure the Tribunal did not grant any amount. Taking into account the fact that there was amputation below knee on the left leg there cannot be any doubt with respect to the fact that he must have to incur expenses for fitting an M.A.C.A.No.1577 of 2011 9 artificial limb. In such circumstances, we do not find any reason for declining the prayer of the appellant for future medical expenses. Accordingly, we award Rs.50,000/- under that head. Towards loss of amenities, the Tribunal granted only an amount of Rs.20,000/-. We have already taken note of the injuries and the nature of the permanent disability. Taking note of such circumstances there can be no doubt that the appellant would not be in a position to enjoy his life as before and certainly in such circumstances he would be entitled to get an amount of Rs.30,000/- more under that head. Towards pain and sufferings appellant was granted only an amount of Rs.25,000/-. We have already taken note of the fact that he had fracture 7 ribs besides amputation below knee. All such circumstances, would invariably indicate that the appellant must have had excruciating pain owing to the injuries sustained in the accident. In such circumstances, he is entitled to get an amount of Rs.25,000/- more under that head. Towards loss of income in view of the fact that we have modified the income fixed M.A.C.A.No.1577 of 2011 10 by the Tribunal from Rs.3,500/- to Rs.5,000/- and taking the same period reckoned by the Tribunal for that purpose, the appellant would be entitled to get an amount of Rs.9,000/more under that head. In view of the fact that his left leg was amputated below knee there can be any doubt that he must have had the assistance of a bystander even after discharge from the hospital. As noticed earlier, he had been an inpatient for 28 days. Therefore, the Tribunal is justified in granting reimbursement of bystander's expenses for a period of 60 days. In such circumstances, we are inclined to grant Rs.200/- per day for a period of sixty days as against the rate of Rs.100/- per day, granted by the Tribunal. Thus, the appellant is entitled to get an amount of Rs.6,000/- more under that head. The injuries sustained by the appellant certainly indicate that the dresses worn by him must have damaged completely. In such circumstances we are inclined to grant Rs.400/- more under that head. In the light of the aforesaid discussions the appellant would be entitled to get an enhanced amount of Rs.3,65,260/- which is rounded off M.A.C.A.No.1577 of 2011 11 to Rs.3,65,300/-. The said additional compensation of Rs.3,65,300/- (Rupees three lakhs sixty five thousand three hundred only) will carry interest at the rate of 8% per annum from the date of petition till realization. The third respondent Insurance Company is directed to deposit the enhanced amount within period of three months from the date of receipt of a copy of this judgment, failing which, the amount remaining to be paid will carry interest at the rate of 9%. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/