Purushothaman v. Kuriyan and Others and Oriental Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944 ``` ``` MACA NO. 1077 OF 2011 ``` ``` AGAINST THE AWARD IN OP(MV) NO.1306/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## `- APPELLANT/PETITIONER :` ``` PURUSHOTHAMAN S/O NARAYANAN KARTHIKA BHAVAN, UPPOODU, EAST KALLADA, KOLLAM. ``` ``` BY ADV SRI.PRATHEESH.P ``` ## `- RESPONDENTS/RESPONDENTS 1, 3 AND 4 :` ``` 1KURIAN AND OTHERS WEST FORT, MAVELIKKARA, ALAPPUZHA-690101. 2THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO.LTD., KAYAMKULAM, ALAPPUZHA-690502. 3V.SUDHAKARAN SO.VASU IX166 VASUDHANIVAS, PATTAMTHURUTH P.O., PERINADU,, KOLLAM-691601. BY ADV SRI.P.V.JYOTHI PRASAD SMT.K.C.SANTHI, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.1077 of 2011 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 27[th ] day of September, 2022** ``` SMT.K.C.SANTHI, SC ``` This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Kollam (for short ‘the Tribunal’) on 20.01.2010 in O.P.(MV) No.1306 of 2006. The appellant is the petitioner who had sustained injuries in a motor accident occurred at 9 am on 27.01.2006. He was walking through the road and a Maruti Car bearing Registration No.KL-4/B 4181 driven by the second respondent in a rash and negligent manner knocked him down. He sustained injuries and was treated at District Hospital, Kollam. He was shifted to Medical College Hospital, Thiruvananthapuram for better medical management. He remained inpatient in the hospital for 26 days. 2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 and additional 4[th] respondent in accordance with their status before the Tribunal. 3. Alleging that the accident was occurred due to the rash and negligent driving of the Maruti Car bearing Registration No.KL- ``` MACA No.1077 of 2011 ``` ``` 3 ``` 4/B 4181 by its driver and seeking for a sum of Rs.1,50,000/- as compensation, the Original Petition was filed before the Tribunal. He has arrayed the owner, driver, insurer of the vehicle and the present owner of the vehicle as respondents 1 to 4 in the Original Petition. It was alleged that all the respondents are jointly and severally liable to compensate him. 4. The second respondent was served with notice, but did not turn up to contest the same and therefore declared exparte. The first respondent had filed written statement raising contentions that the petition is not maintainable either in law or on facts, that the first respondent is only the original owner of the vehicle and not the registered owner at the time of accident and that the vehicle was sold months before the accident and the registered ownership had been transferred in the name of one Mr.V.Sudhakaran, the present owner as early as on 09.08.2005. The sum claimed was alleged as excessive and without any basis. 5. The third respondent had filed written statement admitting issuance of policy for the vehicle and coverage of it as on date of accident. It is contended that the petition is not maintainable either in ``` MACA No.1077 of 2011 ``` ``` 4 ``` law or on facts, that the second respondent was driving the vehicle with due care and caution and he was not responsible for the accident, that the age, occupation and income of the petitioner were not proved by him with cogent evidence, that the injuries sustained are required to be established by the petitioner and that the amount claimed as compensation is exorbitant. The present registered owner of the vehicle was impleaded as the additional 4[th] respondent and he has filed written statement contending that the petition is not maintainable either in law or on facts, that the second respondent had driven the vehicle with due care and caution, that the second respondent is not responsible for the accident by his rash and negligent driving as alleged by the petitioner, that the accident was occurred due to the negligence of the petitioner himself, that the age, occupation, income and the injuries sustained by the petitioner have to be proved by him with cogent evidence, that the vehicle was purchased by him from the first respondent on 09.08.2005 and has also applied for changing the name of the insured, in the certificate of insurance. It is further contended that the third respondent being the insurer of the vehicle and himself being the registered owner, the former is liable to ``` MACA No.1077 of 2011 ``` ``` 5 ``` indemnify him. 6. Before the Tribunal, evidence was adduced by both sides. On the side of the petitioner Exts.A1 to A12 were marked and on the side of the respondents Exts.B1 to B3 were marked. On appreciation of evidence as above, the Tribunal found that the driver of the Maruti Car, arrayed as the second respondent in the Original Petition was responsible for the accident by his rash and negligent driving. The Tribunal has also found that the petitioner is entitled to get compensation from the respondents and accordingly Rs.55,300/- was arrived at as the compensation payable. The Tribunal also directed the third respondent, the insurer of the offending vehicle to deposit the amount with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization alongwith proportionate cost of the proceedings. Aggrieved by the quantum awarded by the Tribunal, the petitioner before the Tribunal has approached this Court in the appeal on hand. 7. The contention of Shri.Pratheesh P, the learned counsel for the appellant was that the monthly income for assessment of compensation was fixed by the Tribunal as Rs.2,000/- and that is on ``` MACA No.1077 of 2011 ``` ``` 6 ``` the lower side and disproportionate to the cost of living and price index in the year 2006, when the accident was allegedly occurred. According to him, the notional income ought to have been fixed as Rs.4,500/- in accordance with the direction of the Apex Court in _**Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd**_ [(2011) 13 SCC 236]. The learned counsel has also pointed out that under various other heads also the Tribunal has not awarded just and reasonable compensation and interference of this Court is warranted. According to the learned counsel 19% has been assessed and certified by Dr.J.R.Jagajeev, Assistant Professor of Orthopedics, Medical College, Thiruvananthapuram as the disability of the petitioner in the certificate issued as Ext.A12. But the Tribunal has taken only 10% as disability. The learned counsel canvassed for a consideration of the disability assessed by the above Doctor as such for computation of compensation. It is further contended by the learned counsel that the petitioner was aged 62 years at the relevant time of accident and the multiplier to be applied is ‘7’ instead of ‘5’. 8. According to the learned counsel for the third respondent just and reasonable sums have been awarded as compensation by the ``` MACA No.1077 of 2011 ``` ``` 7 ``` Tribunal under various heads and interference with the quantum is unwarranted. According to her, as per Ext.A12 certificate, 19% was assessed as the disability but the assessment being not by a Medical Board and the Doctor who has issued it, not being examined to prove it, 10% was taken by the Tribunal and it is justified in doing so. 9. Petitioner was aged 62 years at the relevant time of accident. The Apex Court has held in _**Minu Rout and Another v. Satya Pradyumma Mohapatra and Others**_ [2013 KHC 4701], the Tribunal is duty bound to consider a reasonable sum as monthly income eventhough no proof regrading the income is adduced by the petitioner, for the purpose of computing just and reasonable compensation. In the above circumstances, this Court is inclined to take Rs.4,500/- as the monthly income. The Tribunal adopted the multiplier of ‘5’ but ‘7’ being the correct one, it is taken. 10. 10% was taken by the Tribunal as the disability. Ext.A12 is the certificate issued by the Assistant Professor of Medical College, Thiruvanathapuram but the Doctor who issued it was not examined. In a context when the petitioner failed to prove Ext.A12 that the Tribunal had taken 10%. From Ext.A7 wound certificate and Ext.A9 discharge ``` MACA No.1077 of 2011 ``` ``` 8 ``` card it is noticed that the petitioner had sustained fracture neck of femur(L) and was treated at District Hospital, Kollam and Medical College Hospital, Thiruvananthapuram as inpatient for 26 days. It is further noticed that Hemiarthroplasty was done as treatment procedure. He had also continued treatment as outpatient evenafter getting discharged from the hospital. Ext.A12 incorporate various reasons for arriving at 19% as the disability of the petitioner and those are :- “1. The patient walks with limping and he is c/o hip pain on weight bearing. 2. He is not able to squat. 3. X-ray of (L) hip shows hemiarthroplasty. There is also evidence of loosening of the implant. 4. Partial ankylosis of (L) hip with flexion and extension limited to arc from 90 degree flexion to 180 degree line. Abduction and abduction exclusive of flexion limited to arc from 25 degree abduction to 15 degree abduction and rotation from 180 degree line to 30 degree external rotation. Following the surgery the patient had to restrict all his physical activities. The life of the hemiarthroplasty is 10 years. Since there is loosening of the implant the person has to undergo revision surgery much earlier”. 11. The petitioner was certified as having limping at his age of 62 years. Therefore, this Court is inclined to take the disability ``` MACA No.1077 of 2011 ``` ``` 9 ``` as 15%. In view of the discussion on various aspects, this Court is inclined to refix the compensation in the following manner :- 12. The petitioner is entitled to get Rs.36,000/- under the head of loss of earning, Rs.3,000/- under the head transportation, Rs.3,000/ under the head extra nourishment, Rs.1,000/- under the head damages to clothing and articles, Rs.6,000/- under the head bystander expenses, Rs.10,000/- under the head loss of amenities in life, Rs.30,000/- under the head pain and suffering and Rs.56,700/(Rs.4,500x12x7x15%) under the head disability. 13. When the amount already awarded by the Tribunal is adjusted in the amount now arrived at, the petitioner will get Rs.24,000/- under the head of loss of earnings, Rs.2,000/- each under the head transportation and extra nourishment, Rs.500/- under the head, damages to clothing and articles, Rs.3,000/-, under the head bystander expenses and Rs.5,000/- under the head loss of amenities and enjoyments in life, Rs.15,000/-, under the head, pain and suffering and Rs.44,700/- (Rs.56,700/- -Rs.12,000/-) under the head permanent disability. Thus Rs.96,200/- (Rupees Ninety six thousand and two ``` MACA No.1077 of 2011 ``` ``` 10 ``` hundred only) is found payable as additional compensation. The said amount would carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding the period of delay which stands exempted by order passed by this Court on 28.10.2021 in C.M.A. No.01/2011. The third respondent shall deposit the amount already awarded by the Tribunal (if not paid) and the amount now arrived at as additional compensation within a period of two months from the date of receipt of a certified copy of this judgment. MACA stands allowed accordingly. Sd/- **MARY JOSEPH SMA JUDGE**