Rajeev R. Thadathel v. P.S. Madhu, Sreekumar C.R. and Shriram General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY ,THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940** ## **MACA.No.3273 of 2014** **AGAINST THE AWARD IN OPMV 875/2010 of ADDL. DISTRICT & SESSIONS JUDGE COURT-IV & ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 19-06-2014** ## **APPELLANT/PETITIONER:** **RAJEEV R. THADATHEL HOUSE, KAVIYOOR PO, KAVIYOOR VILLAGE, THIRUVALLA TALUK** **BY ADVS. SRI.T.K.KOSHY SRI.ABE RAJAN SRI.SABU I.KOSHY** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** **1 P.S.MADHU S/O.SIVARAMAN NAIR, PARANGAMOOTTIL HOUSE, PULLOOPRAM PO, RANNY, PIN 689 674** **2 SREEKUMAR.C.R JAISADANAM HOUSE, MANDIRAM PO, RANNY, PIN 689 672.** **3 MANAGER SHIRAM GENERAL INSURANCE CO.LTD., E/8,EPIP, RIICO INDUSTRIAL AREA SITAPURA, JAIPUR, RAJASTHAN 302 022** **BY ADVS.** **SRI.MATHEWS JACOB(SR.) SC FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3273 of 2014 2 ## **JUDGMENT** This appeal on hand is directed against award dated 19.6.2014 of the Additional District & Sessions Judge IV and Additional Motor Accidents Claims Tribunal, Pathanamthitta (for short 'the Tribunal') in O.P(MV) No.875/2010. The appellant is the claimant before the Tribunal. As per the award, the Tribunal had arrived at a sum of Rs.4,56,635/- as compensation payable to the claimant and directed the 3[rd] respondent, the insurer of the offending vehicle to deposit the said sum with interest at the rate of 9% per annum from the date of the claim petition till the date of realisation with proportionate costs of Rs.28,671/-. For the reason that the compensation arrived at by the Tribunal is unjust, inadequate and unreasonable, the appeal on hand is preferred. 2. For the sake of convenience, the parties to this appeal are referred to hereinafter as the claimant and respondent No.3. The claimant had met with a motor accident on 6.3.2010 while riding a motor cycle bearing registration No.KL-27/4478 through Thiruvalla-Kozhencherry public road. A bus bearing registration No.KL-03/P-4119, dashed his motor cycle and thereby he had sustained injuries and was rushed to Pushpagiri Medical College Hospital, Thiruvalla for treatment. After MACA.No.3273 of 2014 3 availing first aid treatment there, he was taken to Medical College Hospital, Kottayam for better management. There, he had undergone inpatient treatment for four spells. He had also undergone several procedures as part of treatment and incurred huge expenditure on those. Contending that the accident was occurred due to rash and negligent driving of the bus by its driver and seeking to obtain a compensation of Rs.7,50,250/-, the claim petition as above was preferred. 3. In the claim petition, the driver, owner and insurer of the bus were arrayed as respondents 1 to 3. 1[st] and 2[nd] respondents remained ex-parte. 3[rd] respondent had filed written statement admitting insurance coverage of the bus as on date of accident and contending that the driver of the offending vehicle was not holding a valid and effective driving license. Claimant was also alleged to have contributed to the accident by his negligence. The compensation claimed under various heads were also disputed. 4. The claimant had adduced documentary evidence as Exts.A1 to A10. Evidence of any nature was adduced by the contesting 3[rd] respondent. On appreciation of the entire evidence on record the Tribunal found the driver of the bus liable for the accident by his rash and negligent driving. The Tribunal found the claimant entitled to get compensation from MACA.No.3273 of 2014 4 respondents and quantified the sum as Rs.4,56,635/-. Accordingly the insurer was directed to pay the said amount with interest at the rate of 9% per annum from the date of the claim petition till the date of realisation. Being aggrieved by the fixation of compensation, the appeal on hand is preferred, seeking for a modification. 5. Sri.T.K.Koshy, the learned counsel advanced arguments on behalf of the appellant/claimant and Sri.Mathews Jacob, the learned Senior Counsel advanced arguments on behalf of the 3[rd] respondent/insurer. 6. The contention of Sri.T.K.Koshi, the learned counsel was that though the claimant pleaded that he was a loading and unloading worker at the relevant time of accident, the Tribunal had arrived at the compensation payable for loss of earning and disability on the basis of the monthly income fixed notionally as Rs.4,500/-. According to him, the accident being occurred in the year 2010, the Tribunal ought to have taken a higher sum than notional income as the monthly income of the claimant while calculating compensation for loss of earning and disability. The further contention of the learned counsel was that the claimant had sustained serious injuries in the accident and had also undergone several surgical procedures, and those facts are established from documents marked in evidence. The MACA.No.3273 of 2014 5 documents would also establish inpatient treatment of the claimant for more than 200 days. Despite materials available in that regard, the Tribunal calculated compensation for loss of earning only for 2½ months and therefore is unjustified. The further contention was that though the nature and seriousness of the injuries sustained, the duration and nature of treatment are evidenced from the documents marked in evidence, the Tribunal failed to award just and fair sum as compensation for pain and suffering. It also declined to award any sum as compensation for loss of amenities and enjoyments in life. Similarly, towards by-stander expenses and extra nourishment, the Tribunal awarded only Rs.2,000/- and Rs.500/- respectively, which are also highly disproportionate to the extensive inpatient treatment evidenced as undergone by the claimant. The last and final contention was that though the claimant got his permanent disability assessed by the Medical Board as 40% and a document certifying the same was produced and got marked in evidence as Ext.P8, the Tribunal failed to apply it's mind to that and therefore the award of compensation has become unreasonable and inadequate. According to the learned counsel, the claimant was a loading and unloading worker and due to the permanent physical disability certified by the Medical Board, he was prevented from moving around for purpose of MACA.No.3273 of 2014 6 occupation he was doing at the relevant time of the accident. Therefore, undoubtedly the accident has impacted his earning power, but the Tribunal did not consider that aspect while arriving at the compensation payable. 7. Sri.Mathews Jacob, the learned Senior Counsel has contended that the claimant failed to adduce any evidence to prove his occupation as a loading and unloading worker and the monthly income earned by him at the relevant time. In the said circumstances, that the Tribunal was constrained to fix notional income of Rs.4,500/- as his monthly income. Therefore, there is no merit in the contention advanced by the learned counsel and it is only be discarded. It is also contended by the learned Senior Counsel that the period taken by the Tribunal for assessing compensation for loss of earning being reasonable, interference is totally unwarranted. The learned Senior Counsel has also raised a contention that compensation arrived at and granted by the Tribunal by the impugned award for disability being just and reasonable, interference is uncalled for. According to him, evidence is totally lacking to reach a conclusion that claimant's earning power was lost completely on account of the disability suffered by him due to the injuries sustained in the accident. 8. In the background of the rival contentions as above, it MACA.No.3273 of 2014 7 is incumbent on this Court to see which of them are tenable ones. In that backdrop, the evidence on record is appreciated. It is disclosed from the impugned award that neither any oral nor documentary evidence was adduced by the claimant to establish his occupation at the relevant time and the monthly income earned therefrom. In the said circumstances, the Tribunal was constrained to fix the notional income as the monthly income. The accident being occurred in the year 2010, the Tribunal is highly unjustified in fixing Rs.4,500/- as his monthly income. The Tribunal ought to have fixed a sum higher than Rs.4,500/- in view of **Ramachandrappa v Royal Sundaram Alliance Insurance Co.Ltd. (AIR 2011 SC** **2951),** where the Apex Court while calculating compensation in the case of a coolie worker, who had met with a motor accident in the year 2004, has fixed Rs.4,500/- as his monthly income. Therefore, this Court finds justification in fixing Rs.7,000/- notionally as the monthly income of the claimant in the case on hand, who met with a motor accident in the year 2010. 9. It is evidenced from Exts.A4 and A6 that the claimant had sustained fracture of right femur and both bones of right leg and had undergone treatment as inpatient for successive periods and during the course, several surgical procedures. MACA.No.3273 of 2014 8 There was inpatient treatment for 162 days. He was also subjected to bone grafting twice. Though materials are produced to apprise the Tribunal of those aspects, it was pleased to fix only Rs.20,000/- as compensation under the head pain and suffering and failed to award compensation towards loss of amenities and enjoyments in life. Since the sum granted as compensation under the head pain and suffering being a meagre sum, this Court is inclined to re-fix it as Rs.60,000/- and also to grant Rs.50,000/- towards loss of amenities and enjoyments in life. Since the claimant has produced and marked in evidence Ext.A9 disclosing expenditure of Rs.11,100/towards ambulance charges, and the amount disclosed by it being a reasonable sum when viewed in the backdrop of the treatment availed from different hospitals and the follow ups for a long period, this Court is inclined to award the same, towards transporation expenses. Rs.2,000/- already awarded by the Tribunal under the head when adjusted against, the claimant will get Rs.9,100/- additionally. 10. Considering the gravity of the injuries and the prolonged treatment, a period of nine months can reasonably be considered for calculating compensation for loss of earning. In the re-assessment with the modified period of nine moths and monthly income of Rs.7,000/-, Rs.63,000/- will be payable as MACA.No.3273 of 2014 9 compensation for loss of earning. Since Rs.10,000/- has already been awarded under the head, the sum payable in addition will be Rs.53,000/-. 11. Based on Ext.A8, the certificate of disability issued by the Medical Board, the Tribunal had taken 40% as the disability of the claimant. The contention of the learned counsel was that the Tribunal failed to consider the occupational disability of the claimant while assessing the compensation. It is urged by the learned counsel that the claimant was a loading and unloading worker and for the reason of restriction in movements caused to him on account of the injuries sustained in the accident, he was not in a position to pursue his occupation. It is pleaded by the learned counsel that the Tribunal ought to have granted a higher sum as compensation under the head loss of earning power. He has also relied on **Raj Kumar v Ajay Kumar [2011(1)KLT 620 (SC)]** to substantiate his arguments. In **Raj Kumar** 's case the Apex Court has held that the Tribunal must consider the occupational disability in the light of the entire evidence adduced by the parties. In the case on hand, the claimant failed to mount the box to depose about his disability and inability on account of that, to attend the occupation he was engaged to at the relevant time of the accident. He failed to adduce any evidence to establish his incapacity to do the work, MACA.No.3273 of 2014 10 which he was doing prior to the accident or any other job. 40% disability assessed by the Medical Board was only physical disability. In the absence of any evidence to show that he was restrained by the disability, to be engaged in any occupation of any nature, this Court is not in a position to assess the actual loss of earning power of the claimant. The Tribunal has taken 40% as the whole body disability of the claimant and has awarded compensation under the head loss of earning power on its basis. In the absence of materials to support the claim of the claimant for enhancement of the compensation for loss of earning power, this Court is declined to grant a sum higher than what was already awarded. The compensation when reassessed with the re-fixed monthly income of Rs.7,000/-, there would be corresponding increase in the compensation payable under the head loss of earning power. The multiplier being correctly adopted by the Tribunal, interference is unwarranted. In the refixation of compensation with the modified monthly income of Rs.7,000/- and disability as 40%, the sum payable as compensation under the head loss of earning power will be Rs.5,71,200 **/-** (7000x12x17x40/100). The sum awarded by the Tribunal in the impugned award being Rs.3,67,200/-, the claimant will get Rs.2,04,000/- additionally. 12. Under the head extra nourishment and bystander MACA.No.3273 of 2014 11 expenses, the Tribunal had awarded Rs.500/- and Rs.2,000/respectively as compensation. When viewed in the backdrop of the evidence available, the fixation of compensation is found disproportionate. It is established from the documentary evidence that the claimant had undergone inpatient treatment for 162 days. The accident being in the year 2010, there is nothing wrong in taking Rs.250/- as the sum liable to meet the daily requirements. When compensation is calculated with Rs.250/- for a period of 162 days, the compensation payable under the head extra nourishment will be Rs.40,500/-. Since the Tribunal has already awarded Rs.500/-, Rs.40,000/- will be payable additionally under the head extra nourishment. In the re-fixation of compensation for bystander expenses with Rs.250/- per day, for a period of five months, the total sum payable is arrived at as Rs.37,500/- and that is payable as compensation under the head bystander expenses. Since Rs.2,000/- was already awarded by the Tribunal under the head, on crediting the same, Rs.35,500/- will be payable additionally. 13. In re-fixation as above, the total amount of compensation payable to the claimant additionally will be **Rs.4,31,600/** -. (Rupees four lakhs thirty one thousand and six hundred only). The said amount will carry interest at the rate of 8% per annum from the date of the petition till the date of MACA.No.3273 of 2014 12 realisation. The 3[rd] respondent, insurer shall deposit the aforesaid sum with interest as directed, within a period of three months from the date on which a copy of this judgment is received by the parties. The appeal is allowed in part on the above terms. Parties to this appeal shall bear their respective costs. **Sd/-** **MARY JOSEPH** ab **JUDGE**