Ramachandran K.B. v. E.V. Martin and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943** **MACA NO. 1660 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1185/2008 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/S:** RAMACHANDRAN K.B. S/O.BALAN, KATTOOKKARAN HOUSE,, PALLIPURAM VILLAGE, POYYA DESOM,, THRISSUR DISTRICT. BY ADV SRI.V.BINOY RAM ## **RESPONDENT/S:** 1 E.V.MARTIN,s/o.VARGHESE EDAPPULAVAN HOUSE, PAZHUKKARA,, ANNALLUR P.O., THRISSUR DISTRICT.680307 2 JOHNSON K.M., S/O.MATHEW KIZHAKKUMTHALA HOUSE,, V.R.PURAM, CHALAKUDY, THRISSUR DISTRICT.680307 3 THE BRANCH MANAGER THE ORIENTAL INSURANCE CO. LTD.,, CITY HEIGHTS BUILDING, IST FLOOR,, SOUTH JUNCTION, CHALAKUDY, THRISSUR DISTRICT,, PIN-630307. BY ADVS. SMT.A.SREEKALA SRI.P.JAYASANKAR ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1660 of 2011 ## **C.S.DIAS, J. ====================== MACA No.1660 of 2011** **====================== Dated this the 22[nd] day of September, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1185/2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident. 3. It was the case of the appellant in the claim petition that, on 3.3.2008, when he was travelling in a bus bearing registration No.KL-10/B 9493 (bus) driven by the first respondent in a rash and negligent manner along the Mala-Poyya public road, when the bus reached at 3 MACA No.1660 of 2011 Chenthuruthi, a jeep came from the opposite side and the bus suddenly turned and hit on an electric post. The appellant sustained serious injuries. The accident occurred due to the negligence of the first respondent. The bus was owned by the second respondent and insured with the third respondent. The appellant was a Mason by profession and earning a monthly income of Rs.7,500/-. Hence, he claimed a compensation of Rs.3,15,000/- from the respondents, which was limited to Rs.2,50,000/-. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent filed a written statement admitting that the bus had a valid insurance coverage. However, it was contended that the first respondent did not hold a valid driving licence. 6. The appellant got himself examined as PW1 and marked Exts A1 to A11 in evidence. The third respondent produced and marked Ext B1 insurance policy in evidence. 4 MACA No.1660 of 2011 7. The Tribunal, after considering the pleadings and material on record, by the impugned award allowed the claim petition, in part, by directing the third respondent to pay the appellant an amount of Rs.1,24,770/- with interest at the rate of 7% per annum from the date of petition till the date of realization and proportionate costs. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.Binoy Ram, the learned counsel appearing for the appellant/petitioner and Smt.A.Sreekala, the learned counsel appearing for the third respondent. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A2 charge-sheet filed by the Police clearly substantiates that the accident occurred due to the negligence of the first respondent. Admittedly, the second 5 ## MACA No.1660 of 2011 respondent was the owner and the third respondent was the insurer of the bus. The third respondent has admitted the insurance policy and has not alleged violation of any policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent. ## **Notional Income** 12. The appellant had claimed that he was a Mason by profession and earning a monthly income of Rs.7,500/-. Nevertheless, the Tribunal fixed the notional income of the appellant at 2,000/- per month. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the benchmark fixed in the aforecited decision and keeping in mind that the accident occurred in the year 2008, I am of the opinion that the 6 MACA No.1660 of 2011 appellant's notional income can safely be fixed at Rs.6,500/- per month. ## **Loss of earnings** 15. It is on record that the appellant sustained serious injuries. The Tribunal held that the appellant was indisposed for a period of three months. Taking into account the above injuries, I confirm the findings of the Tribunal in this regard. Accordingly, in view of the refixation of the notional income of the appellant at Rs.6,500/- per month, I hold that he is entitled for loss of earnings at Rs.19,500/- instead of Rs.6,000/- awarded by the Tribunal. ## **Multiplier** 16. As the appellant was aged 29 years at the time of the accident, following the ratio in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier is '17'. 7 MACA No.1660 of 2011 ## **Loss due to disability** 17. The appellant had produced Ext A7 disability certificate issued by a Orthopedic surgeon, who has certified that the appellant has 20% permanent disability as per the Mc bride's scale, has pain and inability to lift the left hand above the shoulder level, wasting of the scapular, deltoid and bicep muscles. It is also found that there is a non-union fracture left humerus. It was in the said circumstances that the Doctor assessed the disability of the appellant at 20%. 18. The Tribunal after considering Ext A7 disability certificate arrived at the conclusion that since the Doctor has not objectively assessed the disability of the appellant, the disability has to be fixed at 10%. 19. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620(SC)], the Hon'ble Supreme Court has held that, if the Tribunal is not satisfied with the medical evidence, then the Tribunal has to refer the injured claimant to a 8 MACA No.1660 of 2011 competent Medical Board. 20. In the instant case, the Tribunal accepted and marked Ext A7 disability certificate with consent of both parties. The Tribunal for the reason that the disability of the appellant was not objectively made, scaled down the disability to 10%. 21. In **Raj Kumar** (supra), the Hon'ble Supreme Court has held that what has to be looked into is the functional disability of an injured and not his permanent disability. 22. In the present case, the appellant was a Mason by profession. Going by the nature of injuries and the disability assessed in Ext A7 certificate, I am of the opinion that the appellant's functional disability can be fixed at 15% as per Ext A7. 23. Following the above said parameters, namely, the income of the appellant at Rs.6,500/-, the multiplier at 17 and the disability at 15%, I refix the compensation for loss 9 MACA No.1660 of 2011 due to disability at Rs.1,98,900/- instead of Rs.43,200/awarded by the Tribunal. ## **Loss of amenities** 24. It is seen that the appellant had claimed Rs.10,000/- towards loss of amenities. The Tribunal awarded only an amount of Rs.4,000/-. Taking into account the fact that the appellant has suffered functional disability of 15%, I am of the opinion that he is entitled to Rs.10,000/- as claimed in the claim petition, i.e., an enhancement by a further amount of Rs.6,000/-. ## **Other heads of claim** 25. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of 10 MACA No.1660 of 2011 compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|6,000/-|19,500/-| |2|Medical<br>and<br>miscellaneous<br>expenses|41,070/-|41,070/-| |3|Bystander expenses|12,000/-|12,000/-| |4|Transportation<br>expenses|500/-|500/-| |5|Pain and sufferings|18,000/-|18,000/-| |6|Loss of disabilities|43,200/-|1,98,900/-| |7|Loss of amenities|4,000/-|10,000/-| ||Total|1,24,770/-|2,99,970/-<br>rounded off<br>to<br>Rs.3,00,000/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.1,75,230/- (Rupees One Lakh Seventy Five Thousand Two Hundred and Thirty only) with interest at the rate 11 MACA No.1660 of 2011 of 7% per annum from the date of claim petition till the date of deposit, and a cost of Rs.4,000/-. The third respondent is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner, in accordance with law. sd/- sks/22.9.2021 **C.S.DIAS, JUDGE**