Prasannan Pillai K.B. v. Suresh Kumar, Muraleedharan Pilllai & National Insurance Co. 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 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939 MACA.No. 1813 of 2010 ( ) -------------------------AGAINST THE AWARD IN OPMV 117/2006 of II ADDITIONAL M.A.C.T., KOLLAM DATED 11-05-2010 APPELLANT(S)/PETIOTIONER: ------------------------ PRASANNAN PILLAI K.B., AGED 42 YEARS, ROHINI BHAVANAM, THRIKKUNNAPUZHA NORTH, SOORANAD SOUTH, KOLLAM. ## BY ADVS.SRI.C.RAJENDRAN SRI.B.CHANDRA LAL RESPONDENT(S)/RESPONDENT: ------------------------- 1. SURESH KUMAR, S/O.SUDHAKARAN PILLAI, PUNNATHALA KIZHAKKATHIL,KIDANGAYAM NORTH, SOORANAD SOUTH, KOLLAM-690 522. 2. MURALEEDHARAN PILLAI, S/O.GOPALA PILLAI, MADHUMANDIRAM, PERUVELIKKARA, SASTHAMCOTTA-691 502. 3. NATIONAL INSURANCE CO.LTD, BRANCH OFFICE,THIRUVALLA-689 101. R3 BY ADV. SRI.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.1813 OF 2010** **==========================** Dated this the 13[th] day of June, 2017 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 11.5.2010 in O.P.(MV).No.117 of 2006 passed by the II Additional Motor Accidents Claims Tribunal, Kollam. The said claim petition was filed by the appellant under section 166 of the Motor Vehicles Act seeking compensation of Rs.4 lakhs for the injuries sustained by him in a motor vehicle accident that occurred on 29.9.2005. While he was riding a motor cycle, the car bearing Reg.No.KL/02/J/4042 driven by the second respondent in a rash and negligent manner, hit on the motor cycle and he sustained injuries. He was initially taken to A.M.Hospital, Karunagappally from where he was referred to Amritha Institute of Medical Science and Research Institute, Ernakulam. He **M.A.C.A.1813/2010** 2 had undergone treatment as inpatient. The injuries sustained by him resulted in permanent disability. It is in the said circumstances that he filed the claim petition. 2. Before the Tribunal, respondents 1 and 2 remained ex parte and the third respondent-insurer of the car contested the matter. No oral evidence was adduced by both sides. On the side of the respondents, no documentary evidence was also adduced. On the side of the appellant, Exts.A1 to A13 were got marked. The Tribunal, on considering the evidence on record and the rival contentions, passed the impugned award for a total compensation of Rs.63,771/- with interest @ 7.5% per annum from the date of the petition till realisation. Going by the schedule of compensation given in paragraph 7 of the impugned award, the Tribunal assessed the compensation under various heads as hereunder:- |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_claimed (in_**<br>**_rupees)_**|**_Amount_**<br>**_awarded (in_**<br>**_rupees)_**|**_Basis vital details_**<br>**_in a nut shell_**| |---|---|---|---|---| |1|Loss of earning (total)|28000|6000|Rs.100x60 days| |2|Medical expenses|100000||Ext.A13 series bills<br>produced| **M.A.C.A.1813/2010** 3 |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_claimed (in_**<br>**_rupees)_**|**_Amount_**<br>**_awarded (in_**<br>**_rupees)_**|**_Basis vital details_**<br>**_in a nut shell_**| |---|---|---|---|---| |3|Future treatment|No claim|5000|Considering the<br>nature of injury| |4|Bystanders expense|No specific<br>claim|3000|Rs.100x30 days 1<br>person| |5|Transportation<br>expenses|10000|3000|Bills produced but the<br>columns in the bills<br>are<br>vague<br>but<br>considering<br>the<br>travelling distance to<br>the hospital.| |6|Extra nourishment|5000|3000|Considering<br>the<br>injury| |7|Damage to clothing etc.|10000|500|As reasonable amount| |8|Pain and suffering<br>loss/reduction<br>in<br>earning capacity|50000<br>197000|20000<br>20000|Serious complicated<br>injuries| ||Total||Rs.63771/-|Rs.63771/-<br>Along with interest at<br>the rate of 7.5% p.a.<br>From 22/02/2006.| As noticed hereinbefore, it is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. 3.We have heard the learned counsel for the appellant and the learned counsel for the third respondent-insurance company. In the **M.A.C.A.1813/2010** 4 absence of any dispute regarding the accident, cause of the accident as negligence from the part of the second respondent-driver and also the liability of the third respondent to indemnify the first respondent, owner of the said vehicle, we are called upon only to consider the entitlement or otherwise of the appellant to get enhanced compensation. 4. The main contention raised by the learned counsel for the appellant is that despite the production of Ext.A10 disability certificate issued by a duly constituted medical board, the Tribunal had, without any proper quantification in accordance with law, granted only a meagre amount of Rs.20,000/- as compensation for reduction in earning capacity. It is submitted that taking note of the fact that as per Ext.A10, a duly constituted medical board assessed the permanent disability of the appellant as 10%, the Tribunal ought to have properly assessed the compensation payable for disability. That apart, it is contended that the Tribunal had declined to grant any amount towards medical expenses ignoring Ext.A13 series of medical bills. The total amount covered by Ext.A13 series is Rs.3,273/-. The **M.A.C.A.1813/2010** 5 compensation granted for loss of earning is also on the meagre side, it is contended. In short, it is submitted by the learned counsel that an appellate interference is called for. 5. Per contra, the learned counsel for the third respondentinsurance company submitted that a perusal of the impugned award would reveal that the appellant was granted just compensation commensurating with the injuries sustained in the accident. Therefore, no appellate interference is invited. 6. Having heard the learned counsel on both sides and perusing the records and on going through the impugned award, we are of the view that this is an eminently fit case for invoking the appellate jurisdiction to enhance the quantum of compensation. Evidently, Ext.A10 disability certificate is issued by a duly constituted medical board. A scanning of the impugned award would reveal that there is absolute absence of any discussion with respect to the same. In short, without proper application of mind, the Tribunal had awarded an amount of Rs.20,000/- towards compensation for loss of earning capacity. Whether the appellant had actually incurred permanent **M.A.C.A.1813/2010** 6 disability and whether the degree of disability would result in loss of earning capacity, were not at all considered by the Tribunal as can be seen from the impugned award. We have carefully perused Ext.A10 certificate of disability wherein the medical board assessed the permanent disability as 10%. The reasons for arriving at 10% permanent disability are discernible from the said certificate. Since it is a certificate issued by a duly constituted medical board, we do not find any reason for not accepting and acting upon the same. We also do not find any reason for interfering with the degree of disability as certified thereunder. When it is found that the appellant had sustained injuries which resulted in permanent disability, for assessing compensation therefor, the monthly income of the appellant is to be fixed. True that the appellant could not establish his averments with respect to occupation and income, taken up in the claim petition. The materials on record would reveal that he was aged 38 years on the date of the accident. The accident occurred on 29.9.2005. In the absence of any cogent evidence to show that even prior to the accident he was a disabled person, it can only be taken that he was an able bodied **M.A.C.A.1813/2010** 7 person at the time of the accident. Even in the absence of any evidence regarding the occupation and income, the monthly income has to be fixed notionally. In this context, we are of the view that the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** can act as guidance. In that case, in respect of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income as Rs.4,500/- notionally for calculation purpose. In such circumstances and taking into account the aforesaid aspects, Rs.4,500/- can safely be fixed as the monthly income. We do so. The multiplier applicable with reference to the age of the applicant is '15', going by the schedule given in **Sarla** **Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)].** In the light of the aforesaid factors, if assessment of compensation for permanent disability is made, the appellant would be entitled to get an amount of Rs.81,000/- (4500x12x10x15/100). The Tribunal has granted an amount of Rs.20,000/- as compensation for reduction in earning capacity. We are of the view that in the case on hand, the **M.A.C.A.1813/2010** 8 appellant is only to be compensated for permanent disability and not for reduction of earning capacity. After deducting the said amount, the appellant would be entitled to get an additional compensation of Rs.61,000/- towards permanent disability. The Tribunal took two months as the period of loss of earning. Exts. A6 and A13 series would reveal that he had sustained communited fracture of left tibia and fracture on the neck of fibula. It is evident that he had been an inpatient under different spells viz., from 29.9.05 to 12.10.05, from 17.1.06 to 21.1.06 and from 17.5.08 to 24.5.08. We have also taken note of the fact that the injuries sustained by him ultimately resulted in permanent disability. Taking into account all these aspects, we are of the view that it is only proper to take four months as the period of loss of earning. In such circumstances, based on the fixation of the monthly income as Rs.4,500/-, the appellant would be entitled to get Rs.18,000/- towards loss of earning. The Tribunal has already granted an amount of Rs.6,000/- under the said head. After deducting the said amount, the appellant would be entitled to get an additional amount of Rs.12,000/- under that head. True that the appellant could not prove **M.A.C.A.1813/2010** 9 Ext.A13 series of medical bills. But at the same time, the fact that he sustained injuries in the accident and as part of treatment therefor, he remained as an inpatient in the hospital were proved before the Tribunal beyond any doubt. In such circumstances, even in the absence of any proven materials for medical expenses, we are of the view that certain amount can be granted towards medical expenses. The total amount covered by Ext.A13 series of medical bills is Rs.3,273/-. In such circumstances, taking into account all the aforesaid facts, an amount of Rs.3273/-, as claimed by the appellant, towards medical expenses is granted. Towards bystanders expenses, the Tribunal awarded an amount of Rs.3,000/- for 30 days @ Rs.100/per day. Taking note of the year of the accident, we are inclined to take the rate for the same as Rs.150/-. Consequently, the appellant would be entitled to get an additional amount of Rs.1,500/- under the said head. Despite the persuasive arguments of the learned counsel for the appellant, we do not find any reason to interfere with the assessment made under other heads. In the light of the discussions as above, the appellant would be entitled to get a total compensation of **M.A.C.A.1813/2010** 10 Rs.77,773/- which is rounded off to Rs.77,800/-. It is granted. The said amount will carry interest @ 8% per annum from the date of the petition till realisation. The third respondent-insurance company shall deposit the said amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. Appeal is disposed of. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1813/2010** 11 **C.T. RAVIKUMAR, J.** **M.A.C.A.1813/2010** 12 **JUDGMENT September, 2010**