Ramachandran Pillai v. Dr. T.S. Gopalakrishnan; Gireeshkumar; The Manager, United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 17TH DAY OF MAY 2016/27TH VAISAKHA, 1938 MACA.No. 360 of 2010 ( ) ------------------------AGAINST THE AWARD IN OPMV 1399/2004 of M.A.C.T.,KOLLAM DATED 26-09-2009 APPELLANT(S)/PETITIONER: ------------------------------ RAMACHANDRAN PILLAI, S/O.CHELLAPPAN PILLAI,, "SREE VIRAJ", ADHIKADU, ERAVIPURAM P.O., KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S):RESPONDENTS ------------------------------------ ## 1. DR.T.S.GOPALAKRISHNAN, SREESAILAM, ASRAMAM, KOLLAM. ## 2. GIREESHKUMAR, S/O.GOPALAKRISHNAN NAIR, MANGALATHU VEEDU, VALLIKEEZHU NAGER,, KOIPALLIMUKKU, SAKTHIKULANGARA, KOLLAM. ## 3. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., S.K.P.BUILDING, BEACH ROAD, KOLLAM. R1 BY ADV. SRI.K.S.MANU (PUNUKKONNOOR) R1 BY ADV. SRI.P.SREEKUMAR R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-05-2016 ALONG WITH MACA No.1829 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR &** ## **K. P. JYOTHINDRANATH, JJ.** ## **==========================** ## **M.A.C.A. Nos.360 OF 2010 & 1829 OF 2011** **==========================** Dated this the 17[th] day of May, 2016 ## **JUDGMENT** _Ravikumar, J._ The captioned appeals arise from the judgment and award dated 26.09.2009 in O.P.(MV).No.1399 of 2004 passed by the Motor Accidents Claims Tribunal, Kollam. The former appeal has been preferred by the injured-claimant dissatisfied with the quantum of compensation granted under the impugned award and the latter appeal has been preferred by the insurer of the alleged offending vehicle involved in the accident mainly contending that the said vehicle had not actually involved in the accident and therefore, the Tribunal ought not have awarded any compensation at all to the appellant in the former appeal. We have heard the appeals jointly and they are being disposed of by this common judgment. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance **M.A.C.A.360/2010 & 1829/2011** 2 with their status in O.P.(MV).No.1399 of 2004, unless otherwise specifically mentioned. 2.On 6.10.2004, the injured-claimant boarded the stage carriage bearing Reg.No.KL-02/D 433 when it stopped at Chinnakkada Telegraph Office bus stop. Hardly he stepped into it, he realised that it is not a bus passing via the place he wanted to visit, he attempted to alight from it. But, the second respondent, the driver of the said bus then took the vehicle rashly and negligently and resultantly, the claimant fell down from the bus and sustained injuries. He had been an inpatient in Sanker's Hospital, Kollam for four days. He was a sexagenarian at the time of the accident. It is in the said circumstances that he moved the claim petition seeking compensation for the injuries sustained alleging rashness and negligence on the part of the second respondent, the driver of the offending vehicle as cause of the accident and taking up necessary averments to make the first respondent, the owner of the vehicle vicariously liable and the third **M.A.C.A.360/2010 & 1829/2011** 3 respondent, the insurer of the said vehicle to indemnify the first respondent. The second respondent remained ex parte before the Tribunal. 3.Before the Tribunal, in order to establish his claim, the claimant-injured got himself examined as PW1 besides getting marked Exts.A1 to A8 series. On the side of the respondents, RW1 and RW2 were examined. However, they did not adduce any documentary evidence. Exts.X1 and X2 are witness exhibits. After appreciating the rival contentions and evaluating the evidence on record, the Tribunal passed the impugned award for a total compensation of `40,377/- which is rounded off to `40,400/-, with interest at 7.5% per annum from the date of petition till realisation. The captioned appeals have been filed against the said award with the aforesaid prayers. 4.We have heard Adv.Sri.C.Rajendran, the learned counsel for **M.A.C.A.360/2010 & 1829/2011** 4 the claimant/appellant in the former appeal and Adv.Sri.Mathews Jacob, the learned counsel appearing for the third respondentinsurer/appellant in the latter appeal. We have also heard Adv.Sri.Manu appearing for the first respondent in the former appeal/the second respondent in the latter appeal. Though the second respondent in the former appeal, the driver, was served with notice, he has not chosen to enter appearance and resist the appeals. 5.Having heard the rival contentions, we are of the view that it is only appropriate to consider the contentions raised in the latter appeal first. As noticed hereinbefore, it was filed by the insurer of the offending vehicle contending that the Tribunal went wrong in finding involvement of the vehicle driven by the second respondent and belonging to the first respondent, in the accident. Evidently, in a bid to establish that the said vehicle had not involved in the accident the third respondent got examined RW1 who was then the Regional Transport Officer, Kollam. Ext.X1 is the letter regarding time **M.A.C.A.360/2010 & 1829/2011** 5 schedule issued by him in respect of the said vehicle. As per the schedule, the vehicle allegedly involved in the accident was to pass through Chinnakkada in front of the Telegraph Office towards Karikode direction at 8.40 a.m. In the light of the evidence tendered by RW1 with Ext.X1, it was contended that there existed no possibility for the said vehicle to ply in the opposite direction as against the time schedule and that too, in such a manner to reach Chinnakkada at the relevant point of time. But at the same time, the question to be considered is whether solely for the said reason a finding could be entered to the effect that the vehicle in question had not involved in the accident. In the contextual situation, it is relevant to refer to Exts.A1 to A4 and also the indisputable position obtained in this case to the effect that in C.C.No.2256 of 2004 on the files of the Court of Judicial First Class Magistrate-I, Kollam arising from Crime No.412 of 2004 of Kollam Traffic Police Station, the second respondent who was the driver of the aforesaid vehicle, pleaded guilty. Ext.A1 would reveal that Crime No.412 of 2004 of Kollam Traffic **M.A.C.A.360/2010 & 1829/2011** 6 Police Station was the crime registered in connection with the aforementioned accident and the second respondent was the accused therein. After the investigation, the investigating officer filed Annexure-A4 report in the said crime. Exts.A2 and A3 are respectively the copies of the scene mahazar and vehicle mahazar. In such circumstances, the question is whether Ext.X1 with the evidence of RW1 could out weigh the evidence obtained from Exts.A1 to A4 and also the admitted position that the second respondent pleaded guilty before the Court of Judicial First Class Magistrate-I, Kollam in C.C.No.2256 of 2004. The evidence of RW1 is nothing but an assumption founded on the timings in Ext.X1. In such circumstances, we have no hesitation to hold that Ext.X1 with the evidence of RW1 could not outweigh the position obtained from Exts.A1 to A4 and the indisputable position obtained to the effect that the second respondent, who was the accused in C.C.No.2256 of 2004 pleaded guilty before the Judicial First Class Magistrate-I, Kollam arising from the crime registered in connection with the accident in question. No other **M.A.C.A.360/2010 & 1829/2011** 7 reason has been raised by the third respondent to avoid the statutory liability. The third respondent-insurance company did not dispute the insurance coverage of the aforementioned vehicle involved in the accident that belongs to the first respondent. In such circumstances, we are of the considered view that the contention of the insurer of the vehicle viz., the appellant in the latter appeal cannot be accepted and in other words, we do not find any reason to interfere with the finding of the Tribunal that the injured-claimant sustained injuries in the accident involving the vehicle insured with the third respondent, the appellant in the latter appeal. 6.In the latter appeal, the insurer also challenged the quantum of compensation contending that it is exorbitant. The former appeal has been filed by the injured-claimant seeking enhancement of compensation. In such circumstances, we will consider the contentions raised by the injured and third respondent-insurer jointly. While the third respondent contended that the injured-claimant had **M.A.C.A.360/2010 & 1829/2011** 8 not adduced any evidence in support of his claim for occupation and income, the learned counsel appearing for the appellant in the former appeal contended that the Tribunal went wrong in fixing the monthly income as `2,000/-. The learned counsel for the claimant further contended that in the claim petition, it was specifically stated that the injured-claimant was an Engineering Consultant and was earning `5,000/- per month. Obviously, the claimant did not adduce any evidence to establish such contentions regarding occupation and income. When that be so, we do not find any reason to hold that the Tribunal had committed an illegality or error in fixing the monthly income notionally, for calculation purpose. The next question is whether the fixation of monthly income of the appellant as `2,000/invites any interference. While considering the said question, it will not be inapposite to refer to a decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** The accident involved in that case occurred in the year 2004. Evidently, in respect **M.A.C.A.360/2010 & 1829/2011** 9 of the claimant therein who was a coolie, the Apex Court fixed the monthly income for calculation purpose as `4,500/-. The accident in the case on hand occurred on 6.10.2004. Therefore, the fixation of the monthly income is certainly on the lower side. But at the same time, it is to be noted that the appellant was a sexagenarian at the time of the accident, precisely, 62 years at the relevant point of time. Another aspect also requires consideration for assessing the monthly income. The medical records, especially Ext.P6, would reveal that he was afflicted with Osteo Arthritis on his left hip. Taking into account all such aspects, we are of the view that it is only reasonable to fix the monthly income of the appellant-injured as `3,000/-. It is the common case that taking into account the age of the injured, the Tribunal correctly fixed the multiplier. True that the third respondentinsurer got a further case that the Tribunal went wrong in fixing the percentage of permanent disability for the purpose of fixing compensation for permanent disability at 8%. The learned counsel appearing for the third respondent contended that taking into account **M.A.C.A.360/2010 & 1829/2011** 10 the fact that the injured had failed to adduce any evidence to the effect that he had incurred permanent disability due to the injuries sustained in the accident, the Tribunal ought not have assessed the permanent disability for the aforesaid purpose. At the first blush, the said contention appears to be attractive. We are of the view that to consider the question whether the assessment of permanent disability at 8% by the Tribunal invites interference certain other aspects which were actually considered by the Tribunal, have to be looked into. Ext.P6 would reveal that after the accident, the injured was having inability to walk. It would further go to show that there was shortening of his left leg. As noticed hereinbefore, it would also reveal that he was afflicted with Osteo Arthritis on his left hip and he had comminuted fracture on left trochanteric. Proximal femoral nailing was done. The evidence on record would reveal that the appellant-injured was examined as PW1. It is thus evident that the Tribunal has had the opportunity to see the injured. When the Tribunal had actually seen the claimant and the medical records, **M.A.C.A.360/2010 & 1829/2011** 11 though sans disability certificate, would also support that finding, unless it is arbitrarily and unreasonably fixed so high, an interference is uncalled for. The discussion of the evidence would reveal that the claimant had sustained comminuted fracture and there occurred shortening of leg. Taking into account all those aspects, we are of the considered view that no interference is called for with respect to the assessment of permanent disability by the Tribunal. In such circumstances, taking into account the fact that we have fixed the monthly income of the appellant-injured as `3,000/- a re-assessment of the compensation for permanent disability has to be made. For the said purpose, the monthly income has to be substituted by `3,000/-. Based on such calculation, the appellant would be entitled to get an amount of `4,800/- additionally to what was granted by the Tribunal under that head. It is granted. Towards pain and suffering, the Tribunal granted an amount of `10,000/-. While considering the question whether he is entitled to get any enhancement under the said head, the facts which we have already taken into account have **M.A.C.A.360/2010 & 1829/2011** 12 relevance. The appellant was aged 62 years at the time of the accident and he was then afflicted with osteo arthritis on his left hip. He sustained comminuted fracture on the said hip and evidently, for a considerably long time he had to suffer excruciative pain owing to the injuries sustained. In such circumstances, we are of the view that the appellant-injured is entitled to get enhancement of compensation for pain and suffering. In such circumstances, we are inclined to award `10,000/- more under the said head. Based on the fixation of the monthly income as aforesaid, the appellant-injured would be entitled to get `6,000/- more towards loss of earning. It is granted. Considering the period which he underwent treatment and also the nature of the injuries sustained, we are of the view that the appellant is entitled to get `3,000/- more towards expenses for extra nourishment. Evidently, proximal femoral nailing was done as part of the treatment. In such circumstances, necessarily, some amount ought to have been granted to the appellant-injured towards future medical expenses. Evidently, no amount was granted by the Tribunal under the said head. **M.A.C.A.360/2010 & 1829/2011** 13 We are of the view that an amount of `5,000/- has to be granted to the appellant for meeting the expenses for medical treatment. It is granted. In view of the discussions as above, the appellant is entitled to get enhanced amount of `28,800/- which is rounded off to `29,000/-. The enhanced amount will carry interest @ 8% per annum from the date of the petition till realisation. The third respondent is directed to deposit the said amount within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. In the result, M.A.C.A.No.360 of 2010 is allowed as above and M.A.C.A.No.1829 of 2011 is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K. P. JYOTHINDRANATH (JUDGE)** **spc/** # **M.A.C.A.360/2010 & 1829/2011** 14 **M.A.C.A.360/2010 & 1829/2011** 15 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.360/2010 & 1829/2011** 16