Raju v. Unni and Others

MACA.No.2414/2013 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ ## _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945_ ## _MACA NO. 2414 OF 2013_ _AGAINST THE ORDER/JUDGMENT DATED 18.05.2013 IN OPMV NO.643 OF 2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA_ ## _APPELLANT/PETITIONER:_ _RAJU, AGED 50 YEARS, S/O.AYYAPPAN, CHANDRATHIL HOUSE, CHELADU KARA, PINDIMANA VILLAGE, MUVATTUPUZHA._ _BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P_ ## _RESPONDENTS/RESPONDENTS:_ - _1 UNNI, S/O.VIJAYAN, MANAYATHUKUDI HOUSE, MALIPPARA (P.O), KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686 691._ - _2 SASI (DIED), S/O.RAMAN, THALIYATH HOUSE, MURUMATTOM, AIROORKARA, KOTTAPPADY VILLAGE, ERNAKULAM DISTRICT, PIN - 666 695._ - _3 M/S.ORIENTAL INSURANCE COMPANY LIMITED, KOTHAMANGALAM, PIN - 686 691._ - _4 BINDHU,_ _W/O.SASI, THALIYATH HOUSE, KURUMATTOM, AROORKARA, KOTTAPPADY VILLAGE, ERNAKULAM DISTRICT, PIN- 686 695._ _5 ABY SASI S/O.SASI, THALIYATH HOUSE, KURUMATTOM, AROORKARA, KOTTAPPADY VILLAGE, ERNAKULAM DISTRICT, PIN- 686 695._ MACA.No.2414/2013 2 _ADDL.R4 AND R5 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED R2 AS PER ORDER DATED 24.08.2022 IN IA 1/2022 IN MACA 2414/2013_ _BY ADVS. SRI.A.R.GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2414/2013 3 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).No.643 of 2008 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 29.12.2007. 2. According to the appellant, the accident occurred when the bicycle ridden by him was hit by a motorcycle bearing registration No.KL-07/R Temp.4965 ridden by the 2nd respondent in a rash and negligent manner. The said motorcycle was owned by the 1st respondent and was insured with the 3rd respondent. The appellant was a painter by profession and aged 46 years with a monthly income of Rs.4,000/-. According to him, he sustained serious injuries and physical disability. The claim petition was submitted in such circumstances. 3. The 3rd respondent alone contested the matter by filing a written statement, wherein they admitted the coverage of the policy. However, it was contended that the 2nd respondent was riding the motorcycle without a valid driving licence and therefore, there was a violation of policy MACA.No.2414/2013 4 conditions. The quantum of compensation was also disputed by them. 4. To substantiate the contentions, the appellants examined PW1 and as documentary evidence, Exts.A1 to A10 were marked. From the side of the respondents, copy of the policy was marked as Ext.B1. After examining the materials placed on record, the Tribunal arrived at a finding that the accident occurred due to the negligence of the 2nd respondent in riding the motorcycle. It was also found that, he was not having valid driving licence and therefore, liability to pay the compensation was imposed upon the 3rd respondent/insurer at the first instance with the right to recover the said compensation from the 1st respondent/owner and his assets. The quantum of compensation was fixed as Rs.80,100/- and the said amount was directed to be deposited by the 3rd respondent with interest at the rate of 8% from the date of petition till realization with proportionate costs, subject to the right of recovery granted to them. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. MACA.No.2414/2013 5 5. Heard Sri.R.Bindu Sasthamangalam, learned counsel for the appellant and Sri.A.R.George, learned counsel for the 3rd respondent. 6. The only question in this case relates to the quantum of compensation alone. The learned counsel for the appellant submits that the amount awarded by the Tribunal under various heads are grossly inadequate, whereas the learned counsel for the 3rd respondent would contend that a reasonable amount was awarded by the Tribunal and no interference was required. 7. After carefully going through the records, I find some force in the contention of the learned counsel for the appellant. It is to be noted that, while assessing the compensation for physical disability, the Tribunal fixed the monthly income as Rs.3,000/- and fixed the percentage of disability as 5%, as against the 10% certified in Ext.A8 disability certificate issued by PW1. As far as the monthly income is concerned, the amount of Rs.3,000/- appears to be meagre. The accident in this case occurred in the year 2007. Of course, it is true that, there is no evidence on record substantiating the avocation and the income of the appellant. MACA.No.2414/2013 6 However, when the method of computation of the monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735]** is adopted, basic monthly income has to be fixed as Rs.4,500/for the year 2004 and to determine the monthly income for subsequent years, an addition of Rs.500/- per year can be made. When that method is adopted, the monthly income for the year 2007, in respect of an ordinary employee without any evidence, can be fixed as Rs.6,000/-. Therefore, the said amount can be accepted as a reasonable monthly income. While fixing the monthly income as Rs.6,000/-, I am conscious about the fact that, the claim in this regard, as rightly pointed out by the learned counsel for the 3rd respondent, was Rs.4,000/-. However, that by itself cannot be a reason to adopt a higher monthly income, when the facts and circumstances of the case indicate the necessity of taking such a higher monthly income. While assessing the compensation, there is a duty cast upon the Tribunal and this MACA.No.2414/2013 7 Court to ensure that a “just compensation” is received by the victim. In this case, as the appellant/claimant was a person with no static monthly income and his monthly income may vary from month to month depending upon the work he gets, there may be slight variation while mentioning the monthly income. Therefore, much emphasis need not be given to the amount of monthly income mentioned in the claim petition. In such circumstances, I am inclined to accept the monthly income of Rs.6,000/- in this case, even though the same was objected to by the learned counsel for the 3rd respondent. This view taken by me is fortified by the observations of the Honourable Supreme Court in **Minu Rout v. Satya** ## **Pradumna Mohapatra [2013(3)KLTOnline1128(SC)].** 8. The next aspect is the percentage of disability. Ext.A8 is the disability certificate issued by the Doctor, wherein the extent of disability was certified as 10%. The doctor who issued Ext.A8 was examined as PW1. The Tribunal, however, did not accept the same and scaled down the percentage of disability to 5%. In **Manikandan G. v. K.Janardhanan Nair [2021(5) KHC 305],** this Court categorically observed that in the absence of any serious MACA.No.2414/2013 8 discrepancy in the assessment made by the medical practitioner, the percentage of disability certified need not be scaled down. This is a case in which the appellant sustained fracture of right tibia and fibula of right leg. The restriction in the movement was specifically taken note of by the Doctor in Ext.A8. Detailed evaluation of the disability was also seen made in Ext.A8 while assessing the compensation for disability as 10%. When all the aforesaid aspects are taken into consideration, the percentage of disability as certified in Ext.A8 can be accepted. Thus, while, re-assessing the compensation with the above criteria, the compensation for disability would come to Rs.93,600/- [6,000 x 12 x 13 x 10/100]. The amount already awarded by the Tribunal is Rs.23,400/- and the additional compensation would come to Rs.70,200/-. After the revision of monthly income, the appellant would be entitled to additional compensation under the head of loss of earnings. The Tribunal has awarded compensation under this head for a period of four months and the said period appears to be reasonable. Therefore, in the light of the revision of monthly income as Rs.6,000/-, an MACA.No.2414/2013 9 additional compensation of Rs.12,000/- is awarded under the said head. 9. The Tribunal awarded an amount of Rs.16,000/towards pain and suffering. This is a case in which the appellant suffered fracture of both bones and had undergone in-patient treatment for a period of 14 days. Injuries and the treatment availed by him would indicate that even after the discharge, he continued treatment for a considerable period of time. Therefore, a further sum of Rs.9,000/- is awarded towards pain and suffering. The amount awarded by the Tribunal towards loss of amenities is Rs.12,000/-. It is evident that the appellant sustained serious injuries and it resulted in physical disablement as well. He has to live with that disability for the remaining life. Therefore, he should be compensated for the same in a reasonable manner and I deem it appropriate to grant a further sum of Rs.13,000/under the said head. Thus, the total additional compensation would come to Rs.1,04,200/- [70200+12000+9000+13000]. In the result, this appeal is allowed. Award dated 18.05.2013 in O.P.(MV). No.643 of 2008 passed by the Motor Accidents Claims Tribunal, Muvattupuzha, is hereby modified MACA.No.2414/2013 10 by granting an additional compensation of Rs.1,04,200/[Rupees one lakh four thousand and two hundred only] and the said amount shall be deposited by the 3rd respondent with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, since this Court has not interfered with the right of recovery granted to the 3[rd] respondent, they shall be entitled to recover the additional compensation from the 1[st] respondent after satisfaction of the judgment. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- ## **ZIYAD RAHMAN A.A. JUDGE** DG/11.3.24