Rajesh K.B. v Vineesh V.R. and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944** **MACA NO. 697 OF 2012** **AGAINST THE COMMON AWARD DATED 06.01.2010 IN OP(MV)NO.678/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **OTTAPPALAM** ## **APPELLANT/PETITIONER :** **RAJESH K.B., S/O. BABU, KURUMBIPARAMBIL HOUSE, CHERUSSERY, P.O. THAIKKATTUSSERY, THRISSUR.** **BY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS/RESPONDENTS :** |**1**|**VINEESH V.R.,**| |---|---| ||**S/O.RAMAKRISHNAN,**| ||**VADAKKOOTTU HOUSE,**| ||**VELLANIKKARA OLLUKKARA VILLAGE,**| ||**THRISSUR, PIN-680512.**| |**2**|**UNITED INDIA INSURANCE CO. LTD.,**| ||**DIVISIONAL OFFICE, PARK HOUSE,**| ||**ROUND NORTH, THRISSUR, PIN-680601,**| ||**POLICY NO.100600/31/03245**| ||**VALID FROM 01-6-2005 TO 31-5-2006.**| **R2 BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.697 of 2012 **==> picture [46 x 8] intentionally omitted <==** ## **MACA No.697 of 2012** **-----------------------------------------------** ## **J U D G M E N T** The appellant herein is the petitioner in O.P. (MV)No.678 of 2006 on the file of the Motor Accident Claims Tribunal, Ottapalam. Respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel appearing for the insurance company. 3. Brief facts of the case are as follows; The allegation of the appellant is that on 30.04.2006 at about 10.30 a.m., while the appellant was travelling as a pillion in a motorcycle bearing MACA No.697 of 2012 **==> picture [46 x 8] intentionally omitted <==** Registration No.KL 8 AF 8345 through OllurPoochunnipadam road, a car bearing Registration No. KL 8 J 2993 driven by the first respondent in a rash and negligent manner, hit against the motorcycle and the appellant sustained severe injuries. 4. R2, the insurance company filed written statement disputing the accident and negligence, while admitting policy. Quantum also was disputed. 5. The Tribunal granted Rs.87,400/- as against claim of Rs.2,25,000/-in this case along with interest at the rate of 8% acting on the oral evidence of PW1, the petitioner and Exts.A1 to A10 marked, while considering three cases together. 6. The appellant initially claimed Rs.1,00,000/- as compensation and subsequently, the MACA No.697 of 2012 **==> picture [46 x 8] intentionally omitted <==** petition got amended and the claim was enhanced to Rs.2,25,000/-. According to the learned counsel for the appellant, though the appellant claimed his income at Rs.5,000/- being gold worker aged 23 years at the time of accident, the Tribunal fixed the monthly income at Rs.2,500/-. Therefore, the learned counsel pressed for granting Rs.5,000/- as such for re-calculating loss of earnings as well as disability income. This argument is not seriously opposed in view of the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** Therefore, I re-fix the monthly income at Rs.5,000/- per month. 7. The next challenge is regarding the percentage of disability accepted by the Tribunal. It is MACA No.697 of 2012 ..5.. submitted by the learned counsel for the appellant that though as per Ext.A5 disability certificate dated 30.08.2008, Dr.Jacob P.J. assessed the whole body disability of the appellant as 8%, the Tribunal reduced the same to 3% on the ground that the doctor was not examined to prove the actual percentage of disability in tune with Ext.A5. 8. It is submitted by the learned counsel for the appellant that 4 cm of shortening in right leg with fracture led to malunion of right femur are the observations stated in Ext.A5. Therefore, the disability as such is liable to be accepted. 9. The learned counsel for the insurance company resisted this contention on the ground that the doctor who assessed the disability was not examined by MACA No.697 of 2012 **==> picture [46 x 8] intentionally omitted <==** the Tribunal to prove the same as such. Therefore, the same cannot be accepted and no further increase liable to be made. 10. I have perused the treatment records of the appellant produced as Ext.A10(three in numbers). The discharge summary forming part of Ext.A10 would go to show that the appellant was treated as inpatient for a period of 17 days from 30.04.2006 to 16.05.2006 on the diagnosis that supra condylar comminuted fracture right femur. Open Reduction and Internal Fixation(ORIF)-Dynamic Condylar Screw(DCS) are the treatment shown in the discharge summary. Again, he was admitted and treated as per another discharge summary. Subsequently, also he was treated for a period of 5 days from 05.02.2008 to 10.02.2008 and it MACA No.697 of 2012 **==> picture [46 x 8] intentionally omitted <==** was observed that fracture united and DCS insitu. Though the treatment records do not suggest any malunion or shortening, as per Ext.A5, the doctor certified that there was shortening and malunion. This is the reason why the Tribunal reduced the disability to 3%. Since the treatment records do not justify any shortening or malunion, 8% disability as per Ext.A5 cannot be accepted. Having noticed the nature of injuries, implant fixation etc., I am inclined to re-fix the disability at 5% as against the disability fixed by the Tribunal. 11. In this matter, the Tribunal granted loss of earnings for a period of three months at the rate of Rs.2,500/- per month, considering the above injuries and treatment. I am inclined to grant loss of earnings MACA No.697 of 2012 **==> picture [46 x 8] intentionally omitted <==** for a period of four months at the rate of Rs.5,000/-. Therefore, the loss of earnings is re-calculated as under; 5,000x4=20,000/- Out of which, Rs.7,500/- was granted by the Tribunal. Rs.20,000-Rs.7,500= **12,500/-** more is granted under the head loss of earnings. 12. In this case, the age of the appellant is 23 years at the time of accident. In fact, no conclusive evidence in this regard is available. However, age of the appellant is not seriously opposed. In view of the matter, the disability income also requires re-calculation by fixing the proper multiplier as '18' as against '17' fixed by the Tribunal, since the appellant is a person in the age group between 21 to 25. Thus, the loss of disability income is re-calculated as under; MACA No.697 of 2012 **==> picture [46 x 8] intentionally omitted <==** 5,000x12x18x5%=54,000/- Out of which, Rs.15,300/-was granted by the Tribunal. Rs.54,000-15,300= **Rs.38,700/-** more is granted under the head loss of disability income. 13. The learned counsel for the appellant canvassed increase under other heads also in view of the above injuries and treatment. 14. Towards pain and sufferings, the Tribunal granted Rs.15,000/-. Therefore, **Rs.7,000/-** more is granted under the head pain and sufferings. Towards loss of amenities, the Tribunal granted Rs.8,000/-. Therefore, **Rs.7,000/-** more is granted under the head loss of amenities. 15. In this case, finding absence of driving license on failure to produce the same by specific MACA No.697 of 2012 **==> picture [52 x 8] intentionally omitted <==** direction, the Tribunal granted recovery right in favour of the second respondent, the insurer of the vehicle from the first respondent, the owner of the vehicle, after depositing the same in the name of the appellant. Since the finding could not be altered for want of evidence, the recovery right is liable to be granted insofar as the enhanced compensation also. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of **Rs.65,200/-** (Rupees Sixty Five Thousand Two Hundred only) at the rate of 8% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 714 days wherein, grant of interest was specifically disallowed by the order in C.M.Application No.1 of 2012 MACA No.697 of 2012 **==> picture [52 x 8] intentionally omitted <==** dated 27.05.2022. The insurance company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same. The second respondent/the insurer shall recover the enhanced compensation along with the interest thereof from the first respondent, the owner of the vehicle, on depositing the same in the name of the appellant as directed. Sd/- **A.BADHARUDEEN, JUDGE** rkj