P.K. Pushpakaran v. Suma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943** **MACA NO. 44 OF 2011** **AGAINST THE AWARD DATED 28.01.2010 IN OPMV 1657/2004 OF THE** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** P.K.PUSHPAKARAN, S/O KESAVAN, PAYYAPPATT HOUSE, PERUVALLUR P.O., THRISSUR DISTRICT. BY ADV SRI.T.C.SURESH MENON ## **RESPONDENTS/RESPONDENTS:** 1 SUMA, W/O SURENDARAN VATTAPARAMBIL HOUSE, PERAKAM P.O., PERUVALLUR, CHAVAKKAD, THRISSUR DISTRICT. 2 SURENDRAN S/O.RAGHAVAN RESIDING AT DO. 3 NATIONAL INSURANCE CO.LTD. GURUVAYOOR BRANCH, GURUVAYOOR P.O., THRISSUR DISTRICT - 680101. 4 C.K.JAYAN S/O.KUNHAPPU CHERALY HOUSE, NENMANI, THRISSUR DISTRICT. BY ADVS. KIRAN PETER KURIAKOSE SRI.M.A.AUGUSTINE SRI.T.V.VINU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.44- 2011 ## -:2:- ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1657/2004 on the file of the Motor Accidents Claims Tribunal,Thrissur. 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 sustained to him in an accident on 04.05.2004. He has averred in the claim petition that, on the above said date, while he was travelling in an autorickshaw bearing registration No. KL 8/E 7540 through the Chavakkad Enamavu road, due to the negligence of the driver of the autorickshaw – the second respondent, the vehicle lost control and hit against a telephone post. The appellant suffered multiple injuries and a fracture of both bones of his left leg. He was treated at the M.A.C.A.No.44- 2011 ## -:3:- Medical College Hospital, Thrissur and West Fort Hospital, Thrissur in six spells spanning 60 days. The autorickshaw was owned by the first respondent and insured with the third respondent and the insurance policy stood in the name of the fourth respondent. The appellant was a coolie worker by profession and earning a monthly income of Rs. 4500/-. Hence, the appellant claimed a compensation of Rs.2,70,500/from the respondents. 3. The respondents 1, 2 and 4 did not contest the proceeding and were set exparte. 4. The third respondent had filed a written statement denying the allegations in the claim petition. Nevertheless, the third respondent admitted that the autorickshaw had a valid insurance coverage. The third respondent also disputed the age, income and occupation of the appellant and stated that the compensation claimed was excessive. M.A.C.A.No.44- 2011 ## -:4:- 5. The appellant produced and marked Exhibits A1 to A13 in evidence. The third respondent produced the insurance policy, which was marked as Exhibit B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.2,32,527/- which is rounded off to Rs.2,32,600/-with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.T.C.Suresh Menon the learned counsel appearing for the appellant/petitioner and Sri. T.V.Vinu, the learned counsel appearing for the first respondent, Sri. Kiran Peter Kuriakose, the learned counsel appearing for the third respondent/insurer and Sri. M.A. Augustine, the learned counsel appearing for the fourth respondent. 9. The question that arises for consideration in the M.A.C.A.No.44- 2011 ## -:5:- appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Exhibit A2 final report filed by the Chavakkad Police in Crime No.193/2004 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the registered owner, the third respondent was the insurer and the fourth respondent was the insurance policy holder. The respondents have not let in any evidence to discredit Exhibit A2 final report. The third respondent has also not proved that the fourth respondent has violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the fourth respondent arising out of the accident. ## **Income** 11.The appellant had claimed that he was a coolie M.A.C.A.No.44- 2011 ## -:6:- worker by profession and earning a monthly income of Rs.4500/-. For the want of material, the Tribunal fixed the monthly income of the appellant on notional basis at Rs.2500/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2004, I re-fix the notional monthly income of the appellant at Rs.4500/-. ## **Loss of earnings** 14. Going by the serious and multiple injuries suffered by the appellant, the Tribunal has held that the appellant was indisposed for a period of one year. I confirm the said finding. Nevertheless, in view of the M.A.C.A.No.44- 2011 ## -:7:- re-fixation of the notional monthly income of the appellant at Rs.4500/-, I award him an amount of Rs.54,000/- towards ‘loss of earnings’, instead of Rs.30,000/- awarded by the Tribunal. ## **Disability** 15. The appellant had produced Exhibit A13 disability certificate issued by the Assistant Professor of Department of Orthopedic, Medical College Hospital, Thrissur. The Doctor after evaluating the injuries sustained by the appellant has certified that he has permanent disability of 13%, due to the malunited fracture of the tibia and fibula and fibulectomy(1 inch) @ 5%, stiffness of the ankle and knee@ 6% and loss of soft tissue @ 2%. The Tribunal, however, scaled down the disability to 10%. 16. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that what needs to be looked into in M.A.C.A.No.44- 2011 ## -:8:- an injury claim is the functional disability of the injured-claimant. It is also held that if the Tribunal is dissatisfied with the disability certificate produced before it, the Tribunal has to refer the injured-claimant to a duly constituted Medical Board. Further, it is held that, if the disability certificate is marked with the consent of the parties, the same can be accepted in evidence. 17. In the instant case, Exhibit A13 was marked in evidence with the consent of the parties. The Tribunal did not enter into any finding that it was dissatisfied with Exhibit A13. The Tribunal also failed to refer the appellant to a duly constituted Medical Board. In the above circumstances, I accept Exhibit A13 in evidence and take the assessment on its face value. 18. As the appellant was a coolie worker by profession and considering the fact that he has M.A.C.A.No.44- 2011 ## -:9:- malunited fracture of the tibia and fibula, and has stiffness of his ankle and knee and has soft tissue over his ostial lateral aspect of his left leg, I fix his functional disability at 15%. ## **Multiplier** 19. The appellant was aged 41 years at the time of the accident. In view of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier is 14. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.4500/-, his functional disability at 15% and the multiplier at 14, I award him an amount of Rs.1,13,400/-, instead of Rs.45,000/- awarded by the Tribunal for loss due to disability. M.A.C.A.No.44- 2011 -:10:- ## **- By stander expenses and extra nourishment** 21. It is proved and established, as evident from Exhibits A5 to A10 discharge summaries, that the appellant was treated as an inpatient for a period of 60 days in six spells spanning from 4.05.2004 to 24.08.2007. The Tribunal has awarded an amount of Rs.7,000/- each under the heads ‘by-stander expenses’ and ‘extra nourishment’. I find the amounts to be on the lower side. 22. Considering the fact that the appellant was treated as an inpatient for a period of 60 days in six spells spanning from 04.05.2004 to 24.08.2007, I award him an amount of Rs.400/- per day for a period of 60 days towards ‘by-stander expenses’, which works out to Rs.24,000/- and an amount of Rs.200/- per day for a period of 60 days towards ‘extra nourishment’, which comes to Rs.12,000/-. M.A.C.A.No.44- 2011 -:11:- ## **Pain and sufferings and loss of amenities** 23. The Tribunal has awarded an amount of Rs.40,000/- under the head ‘pain and sufferings’, which I find to be reasonable and just. However, the Tribunal has not awarded any amount under the head ‘loss of amenities’. 24. Taking into account the fact that the appellant has suffered a functional disability of 15%, that he was treated as an inpatient for a period of 60 days and he was incapacitated for a period of 12 months, I award him an amount of Rs.15,000/- under the head ‘loss of amenities’. 25. With respect to the other heads of compensation awarded by the Tribunal, I find the same to be reasonable and just compensation. 26. On a re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the M.A.C.A.No.44- 2011 -:12:- appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|30000|54000| |2|Transport|10000|10000| ||Clothing|500|500| |4|Bystander expense|7000|24000| |5|Extra nourishment|7000|12000| |6|Medical expenses|93027|93027| |7|Pain and sufferings|40000|40000| |8|Loss of amenities|0|15000| |9|Loss<br>due<br>to<br>disability|45000|113400| ||**Total**|**232527**|**361927**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,29,400/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 208 days i.e. M.A.C.A.No.44- 2011 ## -:13:- the period of delay in filing the appeal and as ordered by this Court on 26.10.2021 in C.M. Application 1/2011, and a cost of Rs.15000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm/04.02.2022