Raju R. v. Biju Y.P. and Laiju Y.P. and The Oriental Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944 ``` ``` MACA NO. 1540 OF 2013 ``` ``` AGAINST THE AWARD IN OPMV 849/2007 OF ADDITIONAL MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` RAJU R. AGED 46 YEARS, S/O.RAMAN, CHELEZHATHU VELI HOUSE MANNANCHERRY P.O., MANNANCHERRY PANCHAYATH, WARD NO.19, ALAPPUZHA DISTRICT BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` BAIJU Y.P. 1ST FLOOR, VENUS CHAMBERS, VALANJAMBALAM, COCHIN – 683 016 LAIJU Y.P. S/O.PAVITHRAN THODIYIL HOUSE, MUNDACKAL NIDLE, KOLLAM – 691 001 THE ORIENTAL INSURANCE CO.LTD REPRESENTED BY ITS BRANCH MANAGER, MULLACKAL, ALAPPUZHA, PIN – 688 001 BY ADV SRI.RAJESH THOMAS ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1540 OF 2013 ``` ``` 2 ``` ## **JUDGMENT** The petitioner in O.P.(MV).No.849/2007 on the file of the Motor Accidents Claims Tribunal, Alappuzha impugns award dated 25.08.2012 in this appeal filed under Section 173 of the Motor Vehicles Act. The respondents herein are the respondents before the Tribunal. 2. Heard both sides. ## 3. The brief facts of the case are as follows: The appellant, who alleged to have sustained injuries pursuant to a motor accident occurred at about 8.00 p.m. on 05.02.2007, while he was pedaling the bicycle, through western side of Alappuzha – Ernakulam NH Road, when the bicycle was dashed by a car, driven by the second respondent in a rash and negligent manner, had lodged claim petition under Section 166 of the MV Act before the ``` MACA NO. 1540 OF 2013 ``` ``` 3 ``` Tribunal, alleging negligence on the part of the second respondent. 4. Respondents 1 and 2 were declared ex parte by the Tribunal. 5. The third respondent Insurance Company filed written statement and disputed the negligence alleged against the second respondent. The quantum of compensation under various heads is also disputed while admitting policy to the car bearing registration No.KL-07/AT-8414. 6. The Tribunal recorded evidence confined to PW1 and Exts.A1 to A14 on the part of the appellant. No evidence let in by the respondents. After appraising the evidence, the Tribunal granted Rs.83,145/- along with 7.5% interest as compensation. 7. The learned counsel for the appellant challenged the award on two grounds. According to the ``` MACA NO. 1540 OF 2013 ``` ``` 4 ``` learned counsel for the appellant, the Tribunal fixed the monthly income of the appellant at Rs.3,000/-, though it has been specifically contended before the Tribunal that, being a fish seller, he had been earning Rs.6,500/- as monthly income. The learned counsel for the insurer not opposed fixation of monthly income following the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236].** Therefore, Rs.6,000/- is fixed as monthly income for calculating ‘loss of earnings’ as well as ‘disability income’. 8. Secondly, it is pointed out by the learned counsel for the appellant further that the amount of compensation granted under the head ‘disability income’ and other heads is on lower side. Therefore, the same also requires increase. 9. In this matter, as evident from Ext.A6 discharge summary issued from Medical College Hospital, Alappuzha, the appellant sustained Type III A open fracture of both ``` MACA NO. 1540 OF 2013 ``` ``` 5 ``` bones (Rt) leg, Type I open fracture of shaft of humerus (Rt) and fracture medial malleolus (Lt) leg and he was treated for 13 days for the above infirmities. Since the monthly income has been re-fixed, the ‘loss of earnings’ granted by the Tribunal for a period of 6 months also requires re-calculation as under: 6000 x 6 months = Rs.36,000/- Out of which, Rs.18,000/- was granted by the Tribunal. Thus, **Rs.18,000/-** more is granted under the head ‘loss of earnings’. 10. In this case, the age of the appellant as on the date of accident is ‘40’ and therefore, the multiplier is ‘15’. It is noticed that the Tribunal granted consolidated sum of Rs.30,000/- under the head ‘disability income’ without calculating or fixing the disability for the purpose of calculating the said sum, though Ext.A7 disability certificate showing 17% disability was produced before the Tribunal. In this matter, as borne out from Ext.A6, fracture ``` MACA NO. 1540 OF 2013 ``` ``` 6 ``` shaft humerus (Rt) Type I open, fracture both bone (Rt) leg, Type III A open and fracture medial malleolus were the injuries for which the appellant underwent treatment by POP and PTB application. Nothing stated in the discharge summary justifying shortening of (Rt) leg 1” or partial ankylosis 180[0] to 110[0 ] flexion on (Rt) knee and one half inch shortening of humerus as stated in Ext.A7 to justify 17% disability. The author of Ex.A7 also was not examined to prove 17% disability. In fact, the disability certificate issued by a solitary Doctor is not tallying with the findings in the discharge summary. In view of the matter, I am inclined to accept, 12% disability. Thus, loss of disability is calculated as under: 6000 x 12 x 15 x 12% = 1,29,600/- Out of which, Rs.30,000/- was granted by the Tribunal. Thus, **Rs.99,600/-** more is granted under the head 'disability income'. ``` MACA NO. 1540 OF 2013 ``` ``` 7 ``` 11. The learned counsel for the appellant is right in submitting that the compensation awarded by the Tribunal under the head ‘pain and suffering’ is on lower side since Rs.10,000/- alone was granted under the said head. Therefore, **Rs.15,000/-** more is granted under the head ‘pain and suffering’, taking note of multiple fractures and consequential treatments thereof. Similarly, I am inclined to grant **Rs.5,000/-** more under the head ‘loss of amenities’ also. In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.2,20,745/- as compensation, out of which Rs.83,145/- was granted by the Tribunal and the balance of **Rs.1,37,600/-** (Rupees thirty seven thousand and six hundred only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the Insurance Company, from the date of petition till the date of deposit or realisation, excluding for a period of 200 days ``` MACA NO. 1540 OF 2013 ``` ``` 8 ``` wherein, grant of interest was specifically excluded as per order in C.M.Application No.1848/2013 dated 21.12.2021. The third respondent, insurance company is directed to deposit the same in the name of the appellant, within two months from today. On deposit, the appellant can withdraw the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr