PRADEEP v. SHIJU R.V. and SUGATHAN C. and UNITED INDIA INSURANCE CO. LTD.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945 ``` ## **`MACA NO. 344 OF 2011`** ``` AGAINST THE AWARD DATED 07.08.2010 IN OP(MV) 1627/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA ``` ## **`APPELLANT/APPLICANT:`** ``` PRADEEP S/O SUKUMARAN NAIR, POURNAMI NIVAS, SIVAJIPURAM, MACHEL P.O., MALAYINKEEZHU, THIRUVANANTHAPURAM. ``` ``` BY ADV SRI.R.GOPAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SHIJU.R.V. PATTAVILA VEEDU, THALAYAL, RUSSALPURAM, P.O., BALARAMAPURAM, THIRUVANANTHAPURAM-695 001. 2SUGATHAN.C S/O.CHELLAPPAN KOOTHACODE, KIZHAKKUMKARA, PUTHEN VEEDU, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM-695 001. 3THE MANAGER UNITED INDIA INSURANCE CO.LTD., HOSPITAL JUNCTION, NEYYATTINKARA-695 018. ``` ``` BY ADV ADV ALICE THOMAS ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 344 OF 2011 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.1627/2004 on the files of Motor Accident Claims Tribunal, Neyyattinkara. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 11.02.2004. 2. According to the appellant, the scooter ridden by the appellant was hit by a motorcycle ridden by the 2nd respondent. The said motorcycle was owned by the 1st respondent and was insured with the 3rd respondent. According to the appellant, due to the impact of the accident, he sustained serious injuries, and it resulted in physical disablement as well. He was a casual labourer aged 24 years with a monthly income of Rs.4,000/-. The claim petition was submitted in such circumstances. 3. The 3rd respondent alone submitted a written statement wherein they admitted the coverage of policy for the motorcycle. However, they denied the negligence on the part of the 2nd respondent, and according to them, the accident occurred solely due to the negligence of the appellant. The quantum of ``` MACA NO. 344 OF 2011 ``` ``` 3 ``` compensation was also opposed by them. The said claim petition was tried along with O.P.(M.V.) No.1748/2004, which arose from the very same accident. 4. The evidence in this case consists of Ext.A1 to A21 from the side of the applicants, and from the side of the respondents, Ext.B1 to B6 were marked. 5. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2nd respondent and being the insurer, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,11,600/- and the said amount was directed to be deposited with interest @ 7.5% per annum from the date of petition till realisation with proportionate cost. This appeal is submitted by the appellant seeking enhancement of compensation in such circumstances. 6. Heard Sri.R.Gopan, learned counsel appearing for the appellant and Smt.Alice Thomas, learned counsel appearing for the 3[rd] respondent. 7. The only question to be considered is whether the ``` MACA NO. 344 OF 2011 ``` ``` 4 ``` compensation awarded by the Tribunal is reasonable or not. When the learned counsel for the appellant contends that it was grossly inadequate, the learned counsel for the 3rd respondent, the Insurance Company, would point out that a reasonable award has been passed and no interference is required. 8. The first head to be considered is compensation for permanent disability. In this regard, it is to be noted that, even though the Ext.A20 disability certificate was marked wherein disability certified as 17%, the Tribunal scaled down the percentage of disability to 12 %. Besides the same, even though an amount of Rs.4,000/- was claimed as the monthly income, the Tribunal accepted only Rs.2,500/-. On careful scrutiny of the records, I find that both assessments are incorrect. 9. As regards the percentage of disability, the crucial aspect to be noticed is that in the accident, the appellant sustained the following injuries/disabilities: Fracture both bones left leg mal united with shortening by 6 cm; prominence of proximal of tibia on the shin; partial ankylosis of left ankle; wasting of left thigh and left calf by 2 & 1 cm respectively; walking with ``` MACA NO. 344 OF 2011 ``` ``` 5 ``` limp; unable to walk fast; difficulty to climb stairs or getting downstairs; difficulty to squat and carrying weight etc. It is also noticed in the award that when the appellant appeared before the Tribunal, he was found limping to the court hall due to the shortening of his leg. He was seen supported by a walking stick fitted to that leg and his left leg was also seen oedematous. 10. The percentage of disability of 17% was certified by the Doctor, taking note of the aforesaid aspects. However, without giving any specific reason, the Tribunal reduced it to 12%, which does not appear to be appropriate. **In Manikandan G. v. K. Janardhanan Nair and others [2021 (5) KHC 305],** this Court categorically observed that, the Tribunal should not scale down the percentage of disability certified by a competent Doctor in the absence of any specific discrepancies. On going through the contents of the disability certificate and the nature of the injuries sustained by the appellant, I do not find any discrepancies in the said certificate and therefore, there was no justification for reducing the percentage of disability to 12%. Accordingly, the percentage of disability of 17% assessed in Ext.A20 is accepted. ``` MACA NO. 344 OF 2011 ``` ``` 6 ``` 11. The next aspect to be considered is the monthly income. As against the claim of Rs 4,000/- in this regard, the tribunal took the monthly income as Rs 2,500/- which appears to be on the lower side. Considering the fact that, this is an accident occurred in the year 2004, under no circumstances, the claim of Rs.4,000/- could be treated as unreasonable. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], the Honourble Supreme Court was pleased to accept the monthly income of an ordinary worker as Rs 4,500/- for the year 2004. Therefore, Rs 4,000/- is fixed as the monthly income in this case, which is in tune with the claim in this regard. Thus, while reassessing the compensation for permanent disability with the above revised criteria, the amount would come to Rs.1,46,880/- (4,000 x 12 x 18 x 17/100). The amount already awarded by the Tribunal under this head is Rs.64,800/- and the additional compensation would come to Rs.82,080/-. 12. The next head which requires consideration is loss of earnings. The Tribunal awarded compensation under this head for ``` MACA NO. 344 OF 2011 ``` ``` 7 ``` a period of three months @ Rs.2,500/-. I have already revised the monthly income as Rs.4,000/-. In addition to that, taking note of the serious nature of the injuries referred to above and the impact of such injuires, I am of the view that the appellant must have been prevented from pursuing his employment for at least four months. Therefore, compensation has to be calculated for that period. Thus, the additional compensation would come to Rs. 8,500/- [(4000 x 4) – 7,500]. 13. The amount awarded by the Tribunal towards pain and suffering was Rs.18,000/- which appears to be on the lower side considering the serious nature of injuries. Of course, it is true that the inpatient treatment availed by the appellant was only for three days. But, from the nature of injuries, it could be seen that he must have been forced to take rest for a considerable period. Therefore, I deem it appropriate to grant a further sum of Rs.12,000/- under the said head. The next aspect is the loss of amenities, and the amount awarded by the Tribunal is Rs.18,000/-. The nature of disabilities is discernible from Ext.A20, which is already extracted above. It includes a shortening of 6 c.m., and he was walking with ``` MACA NO. 344 OF 2011 ``` ``` 8 ``` a limp. He also has difficulty in climbing stairs, squatting, carrying weight, etc. These injuries were sustained to him at the young age of 24 years and he was a casual labourer. He has to live with that disability, and it will have a serious impact on the quality of his life. Therefore, a further sum of Rs.18,000/- is granted under the head of loss of amenities. Thus, the total additional compensation is determined as Rs.1,20,580/- [82080 + 8500 + 12,000 + 18,000] In the result, this appeal is allowed. The award dated 07.08.2010 passed by the Motor Accident Claims Tribunal, Neyyatikara in O.P. (M.V.) No.1627/2004 is hereby modified by granting an additional compensation of Rs.1,20,580/- (Rupees one lakh twenty thousand, five hundred and eighty only). The said amount shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate as ordered by the Tribunal from the date of petition till realisation. However, in the order dated 18.11.2021 passed by this Court in this appeal, it was ordered that the appellant would be disentitled for interest for the period from 29.01.2011 to 18.11.2021. This order was passed because of the fact that there were lapses on the part of the appellant in taking ``` MACA NO. 344 OF 2011 ``` ``` 9 ``` steps to serve notice on the respondents. In the light of the above, the 3[rd] respondent Insurance company shall be entitled to exclude the said period while computing the interest on the additional compensation. The said amount shall be deposited within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs