Rajesh John v. Muralikrishna Duggirala and The Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 ``` ``` MACA NO. 1561 OF 2010 ``` ``` AGAINST THE AWARD DATED 30.06.2009 IN OPMV 1698/2005 OF THE ``` ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA`** ## **`APPELLANT/PETITIONER:`** ``` RAJESH JOHN, S/O JOHN THATTIKKAT HOUSE, MUTTICHADI P.O.,, KALLAI, THRISSUR DISTRICT ``` ``` BY ADV SRI.T.C.SURESH MENON ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 MURALIKRISHNA DUGGIRALA S/O.PAPPARAVU, 8-26-110, GADDIPADU,, MUNDAL GUNDUR DISTRICT, ANDHRA PRADESH.` - `2 SANKAR, S/O.VEERAIAH 1ST 7-2-239/3,NEHRU NAGAR, GUNTUR DISTRICT,, ANDHRA PRADESH. * (DELETED) *RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 12/11/2021 IN I.A 1/2019 IN MACA 1561/2010.` - `3 THE ORIENTAL INSURANCE CO.LTD. P.B.NO.36, MAIN ROAD GUNTUR DISTRICT,, ANDHRA PRADESH.` ``` BY ADV SRI.GEORGE CHERIAN THIRUVALLA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1561 OF 2010 2 ``` ## **JUDGMENT** **Dated this the 17[th] day of February, 2022** The appellant was the petitioner in O.P (MV) No.1698/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The original respondents in the appeal were the respondents before the Tribunal. At the instance of the appellant, the respondents 1 and 2 in the appeal have been deleted from the party array. Therefore, for the sake of convenience, the parties are, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 07.03.2005. It was his case that, on the above said date, while he was riding his motorcycle bearing registration No. KL 8/C 5710 through the AluvaErnakulam National a Highway, lorry bearing registration No. AP-07/T 9979, driven by the second ## **`MACA NO. 1561 OF 2010 3`** respondent in a negligent manner, hit the motorcycle. The petitioner fell down and sustained multiple injuries and fractures. He was initially treated at the Karothukuzhi Hospital, Aluva and at the Specialist Hospital, Ernakulam as an inpatient for a period of 102 days. The lorry was owned by the first respondent and insured with the third respondent The petitioner was a Computer Lab Assistant in the Sahrdaya Engineering College, Thrissur and was drawing a monthly salary of Rs.5000/-. Hence, the petitioner claimed a compensation of Rs.8,73,000/- from the respondents, which claim was limited to Rs.7,50,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set exparte. 4. The third respondent had filed a written statement admitting that the lorry had a valid insurance coverage. Nonetheless, the third respondent disputed the age, income and occupation of the petitioner. ## **`MACA NO. 1561 OF 2010 4`** 5. The petitioner had produced and marked Exhibits A1 to A13 in evidence. The third respondent had produced the insurance policy of the lorry, which was marked as Exhibit B1. 6. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to recover from the third respondent an amount of Rs.3,90,260/- with interest and proportionate cost. - 7.Dissatisfied with the quantum of compensation - awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.T.C.Suresh Menon, the learned counsel appearing for the appellant/petitioner and Smt.K.S. Santhi, the learned counsel appearing for the respondent /third respondent - insurer. 9. The sole point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **`MACA NO. 1561 OF 2010 5`** ## **Negligence and liability** 10. Exhibit A2 charge sheet filed by the Aluva Police in Crime No.271/2005 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Exhibit A2 charge sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The petitioner had claimed that he was a Computer Lab Assistant and earning a monthly salary of Rs.5000/-. For the want of materials, the Tribunal fixed the notional monthly income of the petitioner at Rs.2500/-. ## **`MACA NO. 1561 OF 2010 6`** 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the petitioner at Rs.5000/- as claimed in the claim petition. ## **Loss of earnings** 14. Even though the petitioner had claimed loss of earning for the period from 07.03.2005 to 01.09.2006 at Rs.90,000/-, the Tribunal declined to award any amount under the said head. It is proved as per Exhibit A13 disability certificate, Exhibits A4 and A5 discharge summaries, that the petitioner was treated as an inpatient for a period of 102 days in two hospitals. He ## **`MACA NO. 1561 OF 2010 7`** had three fractures and he had circumferential degloving injury of the left leg and knee with devitalized posterior and lateral compartment muscle. Going by the nature of injuries, certainly, the petitioner was indisposed for a period of six months. 15. In view of the re-fixation of the notional monthly income of the petitioner at Rs.5000/-, I award him an amount of Rs.30,000/- under the head ‘loss of earnings’. ## **- By stander expenses and extra nourishment** 16. Even though the petitioner had claimed compensation for by-stander expenses and extra nourishment, the Tribunal has not awarded any amount under the said heads. The petitioner was treated as an inpatient for a period of 102 days. Taking into consideration the fact that accident occurred in the year 2005 and the notional monthly income of the petitioner at Rs.5000/-, I am of the firm view that the same parameters can be adopted for the purpose of fixing the ## **`MACA NO. 1561 OF 2010 8`** by-stander expenses. Thus, I award an amount of Rs.166/- per day for a period of 102 days towards ‘bystander expenses’, which works out to Rs.16,932/rounded off to Rs.17,000/-, and half of the said amount i.e. Rs.83/- per day for a period of 102 days towards ‘extra nourishment’, which works out to Rs.8,466/-, rounder off to Rs.8500/-. ## **Disability** 17. The petitioner had produced Exhibit A13 disability certificate issued by the Professor of Orthopedic of the Amala Institute of Medical Sciences, who after examining the petitioner and evaluating the medical records, found that he has loss of knee joint motion, deformity of his left leg, loss of sensation of his leg, loss of muscle power and movement of his left leg and also loss of motion of his right knee joint, deformity of the right foot and loss of ankle joint motion and ## **`MACA NO. 1561 OF 2010 9`** muscle power, which combined together, the petitioner had lower limb disability of 35%. 18. The Tribunal, considering the fact that the petitioner had only lower limb disability, converted the same to whole body disability and fixed the disability at 25.5%. 19. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that what needs to be looked into in a injury claim, is the functional disability of the injured-claimant. Further, it is observed that if the Tribunal is not satisfied with the disability certificate, then the Tribunal has to refer the injured-claimant to a medical board. 20. In the instant case, the Tribunal was satisfied with Exhibit A13, but has assessed the disability of the petitioner at 25.5%., I find the fixation of the whole body disability of the petitioner to be wrong and against the principles laid down in **Raj Kumar’s case** (supra). ## **`MACA NO. 1561 OF 2010 10`** 21. Taking into account the fact that the petitioner was a Computer Lab Assistant and he has difficulty in both his lower limbs and particularly, he has foot throb and other toes are only showing minimal movement with Grade I muscle power, I fix his functional disability at 30%. ## **Multiplier** 22. The petitioner was aged 28 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘17’. ## **Loss due to disability** 23. Taking into account the above mentioned factors, namely, the monthly income of the petitioner at Rs.5000/-, his functional disability at 30% and the multiplier at ‘17’, I award him an amount of ``` MACA NO. 1561 OF 2010 11 ``` Rs.3,06,000/-as ‘loss due to disability’, instead of Rs.1,10,160/- awarded by the Tribunal. ## **Loss of amenities** 24. The petitioner had claimed a compensation of Rs.50,000/- under the head loss of amenities. The Tribunal has awarded an amount of Rs.15,000/- 25. Taking into account the fact that petitioner was treated as an inpatient for a period of 102 days, that he has indisposed for a period of six months, that he has suffered a functional disability of 30% and the accident occurred in the year 2005, I award him a further amount of Rs.15,000/- under the head ‘ loss of amenities’ 26. With respect to the other heads of compensation, I find the same to be reasonable and just compensation. 27. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the ## **`MACA NO. 1561 OF 2010 12`** appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|0|30000| |2|Transport|2000|2000| |3|By-stander<br>expenses|10300|17000| |4|Extra<br>nourishment|0|8500| |5|Medical<br>expenses|207800|207800| |6|Pain and<br>sufferings|30000|30000| |7|Loss of amenities|15000|30000| |8|Loss of disability|110160|306000| ||Total|375260 but<br>awarded<br>Rs.390260/-|6,31,300/-| ``` MACA NO. 1561 OF 2010 13 ``` In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.2,41,040/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 160 days i.e. the period of delay in filing the appeal and as ordered by this Court on 12.11.2021 in C.M.Application No.1/2010, and a cost of Rs.20,000/-. The respondent/third respondent-insurer is ordered to deposit the enhanced compensation with interest and cost as ordered above before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/17/02/2022