Ranjith K.K. v. Beena Shyam, Zins George and The Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **MACA.No.100 OF 2013** **AGAINST THE AWARD IN OPMV 924/2008 DATED 30-06-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/PETITIONER:** **RANJITH K.K., S/O.KUNHIRAMAN K.K, KAKKATTU KUNNUMMAL HOUSE, MADAPPALLY COLLEGE P.O, VADAKARA, KOZHIKODE DISTRICT.** **BY ADVS. SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENTS/RESPONDENTS:** **1 MRS. BEENA SHYAM 11/21A, SHYAM, PUZHATHI PANCHAYATH, P.O KAKKAD, KANNUR DISTRICT, PIN 670 005. 2 ZINS GEORGE S/O.GEORGE, PILLEET HOUSE, ALAKKODE P.O, RAYAROM, KANNUR DISTRICT. PIN 670 141. 3 THE ORIENTAL INSURANCE CO.LTD DO2-CANNANORE, KPK RIALTO, THANA, CANNANORE, PIN 670 001. R1, R3 BY ADV. SRI.RAJESH THOMAS R3 BY ADV. SMT.K.S.SANTHI SMT.K.S.SANTHI, SC FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-03-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:** **MACA.No.100 OF 2013** **2** ## **JUDGMENT** ## **Dated this the 8th day of April 2021** The appellant is the petitioner in O.P.(MV)No.924/2008 on the file of Motor Accident Claims Tribunal, Vatakara. It is a claim petition filed by the appellant under Section 166 of the Motor Vehicles Act, claiming compensation for the personal injury sustained to him in a motor vehicle accident. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). 2. Short facts are like this:- On 25.08.2008 at about 1.10 p.m., the petitioner was travelling from Vadakara to Madappally in his motor bike bearing Reg. No.KL/11-H 2358 and when he reached near Kayinatty Junction the bus bearing Reg. No.KL 13-Q-0115 driven by the 2[nd] respondent came in a rash and negligent manner and hit the back side of the petitioner's motorcycle and the petitioner fell down and sustained serious injuries. According to the petitioner, the accident occurred due to the rash and negligent driving by the 2[nd] respondent. The learned counsel for the petitioner contended that the respondents are jointly and severally liable **MACA.No.100 OF 2013** **3** to pay compensation to the petitioner. 3. To substantiate the case, Exts.A1 to A10 were marked on the side of the petitioner. Ext.C1 is the disability certificate issued by the Medical Board. After going through the evidence and documents the Tribunal passed an award of Rs.1,30,652/- with interest at the rate of 7.5% per annum from the date of petition till realisation. Aggrieved by the quantum of compensation this appeal is filed. 4. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondents. 5. The learned counsel for the appellant submitted that the Tribunal erred in fixing the monthly income of the petitioner as Rs.4,000/-. The counsel submitted that the accident occurred in the year 2008. The petitioner was a merchant by profession and he was getting an amount of Rs.6,000/- per month. The counsel relied on the judgment of the Apex Court in _**Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236]**_ and submitted that, the monthly income fixed by the Tribunal is not correct. I think there is force in the argument of the counsel for the petitioner. **MACA.No.100 OF 2013** **4** Even a coolie will get more than Rs.4,500/- in the year 2008, if the observations in _**Ramachandrappa case (supra)**_ is taken as a basis. In this case the claim of the petitioner is that, he was getting Rs.6,000/- per month. Considering the entire facts and circumstances of the case, I think the monthly income of the petitioner can be fixed as Rs.6,000/-. 6. The learned counsel further submitted that Ext.C1 is the Disability Certificate issued by the Medical Board. The counsel submitted that as per the certificate the permanent disability is fixed as 26.25%. The Tribunal arbitrarily fixed the permanent disability as 5%. The counsel submitted that there is no basis for reducing the permanent disability to 5%, when the Medical Board certified that the permanent disability is 26.25%. I perused the impugned award. The Tribunal without any serious consideration of Ext.C1 Disability Certificate, fixed the disability as 5%. The relevant portion of the impugned award on this aspect is hereunder:- _“14. The Ext.C1 disability certificate issued by a board under the Taluk Head Quarters Hospital, Vatakara as per that he has suffered 26.25% permanent disability. As the medical board has issued that certificate not under MC brides scale or Indian Medical counsel scale, the present calculation is based on a calculation intended to give job reservations and_ **MACA.No.100 OF 2013** **5** _only a limp disability is calculated and there is it clearly mentioned that mild disability. So I am allowing only 5% whole body disability affecting earning capacity. As the petitioner is 35 years old and the multiplier proper is 17. Thus compensation towards permanent disability is found to be Rs.40,800/- (Forty Thousand and Eight hundred only). Having regard to the nature of injuries, treatment its impact on rest of life, and the required for curing the ailments the compensation is awarded below the following heads:”_ I cannot agree with the finding of the Tribunal. The Apex Court in _**Pappu Deo Yadav v. Naresh Kumar and others**_ [AIR 2020 SC 4424] after considering a plethora of decisions on a point 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company**_ [2014 (2) SCC 735] and _**Raj Kumar v. Ajay kumar and anr.**_ [2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in the assessment of extent of disabilities and compensation under **MACA.No.100 OF 2013** **6** various heads. 7. Taking the above principle, according to me this Court can accept Ext.C1 certificate issued by the Medical Board and the disability can be fixed as 26%. The Tribunal used the multiplier 17. Both sides agreed that the correct multiplier is 16, in the light of the decision of the Apex Court in _**Sarla Verma & Others v. Delhi Transport Corporation & another [2010 (2) KLT 802]**_ Therefore, the compensation for disability is to be reassessed in the following manner:- 6,000 x 12 x 26/100 x 16 = Rs.2,99,520/- The Tribunal already awarded an amount of Rs.40,800/-, for disability, which is to be deducted from the above amount. Then the balance amount entitled by the petitioner will be:- 2,99,520 - 40,800 = Rs.2,58,720/- 8. Then the counsel submitted that, based on the income fixed by this Court, the loss of earning may be reassessed. The Tribunal assessed the loss of earning taking Rs.4,000/- as monthly income. This is to be reassessed in the following manner:- **MACA.No.100 OF 2013** **7** = 6,000 x 3 Rs.18,000/- The Tribunal already awarded an amount of Rs.12,000/-. Then the balance amount entitled by the petitioner for loss of earning is Rs.6,000/- (18,000 – 12,000) 9. The counsel for the petitioner submitted that, the petitioner sustained serious injuries including fracture and the Tribunal awarded only an amount of Rs.20,000/- for pain and sufferings. Considering the facts and circumstances of the case, I think the petitioner is entitled an additional amount of Rs.5,000/- towards pain and sufferings. No amount is awarded for loss of amenities. The petitioner is entitled an amount of Rs.15,000/- in that head also. Therefore, the enhanced compensation entitled by the petitioner can be summerised like this:- = Loss of Earning Rs.6,000/= Pain and Sufferings Rs.5,000/- Compensation for Disability= Rs.2,58,720/- Loss of Amenities = Rs.15,000/- ____________ Total = Rs.2,84,720/========= **MACA.No.100 OF 2013** **8** Therefore, the appeal is allowed in part. The impugned award is modified. The petitioner is entitled an enhanced compensation of Rs.2,84,720/- with interest at the rate of 7.5% per annum from the date of petition till realisation. The 3[rd] respondent is directed to pay the enhanced compensation with interest within two months from the date of receipt of a copy of this judgment. **Sd/P.V.KUNHIKRISHNAN JUDGE** VPK