P.K. JAYASANKAR v. ALAVI, SEENA and UNITED INDIA INSURANCE CO. LTD.

**MACA NO. 547 OF 2010** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943 MACA NO. 547 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1393/2005 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** P.K.JAYASANKAR, AGED 40 YEARS, S/O BALAKRISHNAN NAIR, THEKKE PALLIYALIL HOUSE,PERUMUDIYUR,, PATTAMBI,OTTAPALAM TALUK. BY ADVS. SRI.R.VENUGOPAL R.SREEHARI ## **RESPONDENTSRESPONDENTS:** 1 ALAVI, S/O MOIDEENKUTTY, KOOMBIL HOUSE, MANJALINGAL,PATTAMBI,OTTAPALAM TALUK, (DRIVER OF JEEP KL 8A 1585). 2 SEENA D/O.BALAKRISHNAN , CHITTYAN HOUSE, NANDIPURAM,THRISSUR DISTRICT., (RC OWNER OF JEEP KL 8A 1585). 3 UNITED INDIA INSURANCE CO.LTD PARK HOUSE, ROUND NORTH,THRISSUR(INSURER OF JEEP KL 8A 1585). BY ADV SRI.P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 547 OF 2010** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.1393/2005 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The respondents in the appeal were the 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 that he sustained in an accident on 22.4.2005. It was his case that, on the abovesaid day, while he was riding his motorcycle bearing Reg.No.KL-09F 2868, along with his friend as pillion, from Kozhikkottiri to Muthuthala, a jeep bearing Reg.No.KL-08A-1585 (jeep), driven by the 1[st] respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant and his friend fell down and sustained injuries. Both of them were treated at the AlShifa Hospital, Perinthalmanna for a period of 24 days. **MACA NO. 547 OF 2010** **3** The appellant's friend succumbed to the injuries. The appellant sustained a fracture of both bones of his right leg. He was a LIC Agent and was earning a monthly income of Rs.9,182/-. The appellant had suffered a permanent disability. Hence, the appellant claimed a compensation of Rs.2,62,000/- from the respondents, which claim was limited to Rs.2,50,000/-. 3. The pillion rider's legal representatives filed O.P (MV) No.1392/2005 before the the same Tribunal, seeking compensation on account of his death. 4. The 1[st] respondent filed separate written statements refuting the allegations in the claim petitions. It was contended that the accident occurred due to the negligence of the appellant. Nevertheless, it was contended that the Jeep had a valid insurance coverage. 5. The 2[nd] respondent did not contest the proceedings and was set ex parte. 6. The 3[rd] respondent had filed separate written statements in the claim petitions admitting that the Jeep **MACA NO. 547 OF 2010** **4** had a valid insurance coverage. The 3[rd] respondent reiterated the assertions of the 1[st] respondent and disputed the age, occupation and income of the appellant and the deceased. 7. The Tribunal consolidated and jointly tried the two claim petitions. 8. The appellant and witnesses were examined as PW1 to PW3 and Exts.A1 to A22 were marked in evidence. The 1[st] respondent produced and marked Exts.B1 and B2. 9. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,52,200/- with interest and costs. 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 11. Heard; Sri.R.Sreehari, the learned counsel appearing for the appellant/petitioner and Sri.P.K.Manoj **MACA NO. 547 OF 2010** **5** Kumar, the learned counsel appearing for the 3rd respondent/insurer. 12. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 13. Ext.A4 charge-sheet filed by the Police substantiates that the accident occurred due to the negligence of the 1[st] respondent- the driver of the Jeep. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the Jeep. The respondents have not let in any evidence to discredit Ext.A4 chargesheet. The 3[rd] respondent has also not proved that the 2[nd ] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Income** 14. The appellant had averred that he was a LIC Agent and was drawing a monthly income of Rs.9,182/-. In **MACA NO. 547 OF 2010** **6** order to substantiate his assertion, he had produced Exts.A14 and A18 certificates issued by the Life Insurance Corporation of India. However, the Tribunal, for the reason that the documents were not properly proved, fixed the notional monthly income of the appellant at Rs.5,000/-. 15. Undisputedly, Exts.A14 and A18 were marked in evidence without any objection or protest by the respondents. It is reflected in Ext.A14 that the appellant was paid Rs.2,51,738/- in the financial year 2003-2004 and Rs.2,81,772/- in the financial year 2004-2005 as commission. I do not find any reason to discard Ext.A14 issued by a statutory authority, particularly after the document was accepted and marked in evidence. Therefore, I re-fix the monthly income of the appellant as Rs.9,182/-, as claimed in the claim petition. ## **Loss of earnings** 16. The Tribunal has found that the appellant was indisposed for a period of eight months due to injuries **MACA NO. 547 OF 2010** **7** sustained in the accident. I confirm the said finding. In view of the re-fixation of the appellant's monthly income at Rs.9,182/- I award the appellant an amount of Rs.73,456/towards 'loss of earnings', instead of of Rs.40,000/awarded by the Tribunal. ## **Disability** 17. The appellant had produced Ext.A22 disability certificate, to prove that he has suffered 4% permanent disability. Nevertheless, the Tribunal, for the reason that the the Doctor who issued Ext.A22 was not examined, scaled down the percentage of disability to 2%. 18. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has categorically held that, if the Tribunal is not satisfied with the disability certificate produced before it, it is the duty of the Tribunal to refer the injured-claimant to a duly constituted Medical board. It is also held that what needs to be looked into in a case of injury, is the functional disability of the injured-claimant. **MACA NO. 547 OF 2010** **8** 19. In the instant case, Ext.A22 was produced and marked in evidence without the any objection by respondents. Therefore, the scaling down of the percentage of disability from 4% to 2% is erroneous and wrong especially in view of the law laid down **Raj Kumar's case (** supra). Therefore, I accept the assessment made in Ext.A22 in its entireity and fix the functional disability of the appellant at 4%, due to the weakness of his quadricepts and he being a LIC agent, who has to move around for the purpose of canvassing insurance policies. ## **Multiplier** 20. The appellant was aged 36 years at the time of the accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '15'. ## **Loss due to Disability** 21. Taking into account the above-mentioned factors, namely, the notional monthly income of the appellant at **MACA NO. 547 OF 2010** **9** Rs.9,182/-, his functional disability at 4% and the multiplier at '15', I award the appellant an amount of Rs.66,110/- as compensatin for loss due to disability’ instead of Rs.19,200/- awarded by the Tribunal. ## **Loss of amenities** 22. Although the appellant had claimed compensation for loss of amenities, the Tribunal did not award any amount under the said head. Taking into account the fact that the appellant was treated as an inpatient for a period of 24 days, that he was indisposed for a period of eight months and that he has suffered a functional disability of 4%, I hold that the appellant is entitled to an amount of Rs.20,000/- towards ‘loss of amenities’ . ## **Other heads of compensation** 23. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 24. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the **MACA NO. 547 OF 2010** **10** aforecited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [474 x 409] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts<br>the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 40,000 73,456<br>2. Transport to hospital 6,000 6,000<br>3. Bystander expenses 3,600 3,600<br>4. Medical Expenses 63,366 63,366<br>5 Pain and suffering 20,000 20,000<br>6. Loss of amenities 20,000<br>7. Loss due to disability 19,200 66,110<br>Total 1,52,200 2,52,532<br>=========== rounded off to<br>Rs.2,52,600<br>=======<br>**----- End of picture text -----**<br> **MACA NO. 547 OF 2010** **11** In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.1,00,400/with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of realisation, after deducting interest for a period of 250 days , i.e. the period of delay in filing the appeal and as ordered by this Court on 12.3.2020 in C.M.Appli. No.674/2010, and a cost of Rs.10,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty day from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner, in accordance with law. ma/05.01.2022 Sd/- **C.S.DIAS, JUDGE** **/True copy/**