Prabhakaran v. A.D. Suresh, K.M. Shibu and The Manager, The Oriental Insurance Company 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 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939 MACA.No. 1199 of 2007 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.278/2001 of MACT, IRINJALAKUDA DATED 06-12-2006 APPELLANT/PETITIONER: --------------------------- PRABHAKARAN, S/O.GOPI, CHANDRATHIL HOUSE, P.O.KARUKUTTY, NOW RESIDING AT ARIYIKARA HOUSE, C/O RAJAN, KORATTY. BY ADVS.SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN RESPONDENTS/RESPONDENTS: ---------------------------------- 1. A.D.SURESH, ARANJALIL HOUSE, EROOR P.O., TRIPPUNITHURA, ERNAKULAM DISTRICT. 2. K.M.SHIBU, S/O.MATHAI, KARATHRA HOUSE, ASHTAMICHIRA. 3. THE MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., ANGAMALY- 683572. R3 BY ADV. DR.ELIZABETH VARKEY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- M.A.C.A.No.1199 of 2007 -------------------------------Dated 27[th] June, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Irinjalakuda dated 6.12.2006 in O.P.(M.V)No.278 of 2001, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident occurred on 15.6.2000 while he was travelling as a passenger in a bus bearing Reg.No.KEF-6706, owned and driven by respondents 1 and 2 and insured with the third respondent. When the bus reached the place of accident, while the appellant was alighting from the bus at the bus stop, the second respondent driver suddenly took the bus, as a result of which the appellant/claimant fell down on the road and sustained injuries, as the back wheel of the bus ran over his legs. Claiming a total compensation of 4,00,000/- under different heads, claim petition was filed before the₹ Tribunal. 2. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant and PWs 1 to 3 were examined on his side. On M.A.C.A.No.1199/2007 2 the side of the respondents, a copy of the insurance policy was marked as Ext.B1. The respondents have not chosen to adduce any oral evidence. 3. After considering the evidence and materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the bus by the second respondent driver. Since the said vehicle was covered by a valid insurance policy at the time of accident, the third respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of 1,67,686/- and directed the third respondent₹ insurer to deposit the said amount before the Tribunal together with interest at the rate of 6% per annum from the date of petition till realisation, with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. ## 5. Heard arguments. 6. The sole issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under different heads warrants enhancement in this appeal. 7. The compensation awarded by the Tribunal under different M.A.C.A.No.1199/2007 3 ## heads reads thus:- ||**_Rs._**| |---|---| |Cost of extra nourishment and wages to<br>attendants|3,300.00| |Medical expenses|49,286.00| |Transportation charges|500.00| |Loss of earnings|8,000.00| |Pain and suffering|15,000.00| |Loss of amenities and happiness in life|5,000.00| |Permanent disability|81,600.00| |Future medical expenses|5,000.00| |Total|1,67,686.00| 8. As already noticed, the accident occurred on 15.6.2000 and at the time of accident, the appellant/claimant was aged 33 years. He claimed a monthly income of 4,000/-. In order to substantiate the₹ said contention, the appellant/claimant relied on Ext.A11 certificate, which would show that he was working under one K.R.Dinesan, a Government Contractor. The appellant/claimant tried to prove Ext.A11 through PW3. However, after considering the evidence of PW3 the Tribunal found that the said witness cannot be relied upon. It was in the absence of any reliable materials that the Tribunal fixed the monthly income of the appellant/claimant notionally at 2,000/-. Considering₹ the fact that the accident is of the year 2000 and at the time of accident the appellant/claimant was an able bodied person aged 33 years, we deem it appropriate to re-fix his monthly income notionally at 3,500/-,₹ M.A.C.A.No.1199/2007 4 for the purpose of calculating compensation under different heads. 9. The injuries sustained by the appellant/claimant in the accident, as born out from Ext.A7 discharge summary, are as follows:- “Swelling, deformity, tenderness right lower 1/3[rd] leg, compound fracture both bones left leg, fracture both bones right leg lower 1/3, tendon nerve injury.” As a result of the injuries sustained in the accident the appellant/ claimant had undergone inpatient treatment for a period of 33 days. Ext.A10 is the disability certificate issued by the Medical Board at the Medical College Hospital, Thrissur, certifying a permanent disability of 40%. After considering the said disability with reference to the nature of injuries sustained, the Tribunal took the percentage of permanent disability as 20%. The Tribunal has stated valid reasons in paragraph 15 of the award for scaling down the percentage of permanent disability as 20%. The Tribunal noticed that in the case of the appellant/claimant there is no amputation and even in the case of amputation to elbow, 1/3[rd] of the knee, percentage of disability would be below 30%. We find absolutely no valid reasons to interfere with the assessment so made by the Tribunal. 10. Reckoning the monthly income of the appellant as 2,000/-₹ and percentage of disability as 20% the Tribunal awarded a sum of ₹81,600/- under the head disability compensation, adopting a multiplier M.A.C.A.No.1199/2007 5 of `17'. In view of the judgment of the Apex Court in _**Sarla Verma** v._ _**Delhi Transport Corporation (2010 (2) KLT 802),**_ proper multiplier applicable to the age group of the appellant/claimant is `16'. Since we have already re-fixed his monthly income as 3,500/-, applying the₹ multiplier of `16' and taking the percentage of disability as 20%, the compensation payable under the head disability is reworked as ₹1,34,400/- (3500x12x16x20/100). After deducting 81,600/- awarded₹ by the Tribunal, the appellant/claimant will be entitled for an additional compensation of **₹ 52,800/-** under this head. 11. Towards extra nourishment and wages to attendants the Tribunal awarded a consolidated sum of 3,300/-. Admittedly, the₹ appellant/claimant had undergone inpatient treatment for a period of 33 days. Taking into consideration of the fact that the accident is of the year 2000, the appellant/claimant would also be entitled for a sum of ₹4,950/-(33x150) towards bystanders expenses and a further sum of ₹3,300/-(33x100) towards extra nourishment. In the result, the total compensation payable under the above heads comes to 8,250/-₹ (3,300+4,950). After deducting 3,300/- already awarded by the₹ Tribunal under the head extra nourishment and attendants' expenses, the appellant/claimant will be entitled for an additional compensation of **₹ 4,950/-** . M.A.C.A.No.1199/2007 6 12. Towards transportation charges the Tribunal awarded 500/-.₹ Considering the fact that the accident is of the year 2000, we deem it appropriate to re-fix the compensation under this head as 1,000/-,₹ resulting an additional compensation of **₹ 500/-** . 13. Towards loss of earnings the Tribunal awarded 8,000/-,₹ at the rate of 2,000/- for a period of 4 months. Since we have₹ already re-fixed the notional monthly income of the appellant/claimant as 3,500/-, the compensation payable under this head comes to₹ ₹14,000/- (3500x4), resulting an additional compensation of **₹ 6,000/-** . 14.Towards pain and suffering, the Tribunal awarded a sum of ₹15,000/-. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, as born out from the medical records, the compensation awarded under the above head represents just and reasonable compensation, which warrants no enhancement in this appeal. 15. Towards loss of amenities the Tribunal awarded a sum of ₹5,000/-. Considering the fact that due to the injuries sustained in the accident the appellant/claimant has sustained a permanent disability of 20%, as certified in Ext.A10 disability certificate, we deem it appropriate to re-fix the compensation under this head as 15,000/-,₹ resulting an additional compensation of **₹ 10,000/-** . M.A.C.A.No.1199/2007 7 16. Towards future medical expenses the Tribunal awarded a sum of ₹5,000/-, which represents just and reasonable compensation, considering the nature of injuries sustained and the treatment the appellant/claimant had undergone. 17. In the result, the appellant/claimant will be entitled for an additional compensation of **₹ 74,250/-** (52,800+4,950+500+6,000+ 10,000), which will carry interest at the rate of 8% per annum from the date of petition till realisation. 18. Since the insurance coverage of the vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within a period of two months from the date of receipt of certified copy of this judgment. No order as to costs. The appeal is disposed of as above. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS // true copy // P.S. To Judge