Ratheesh Kumar @ Podimon v. Sijuraj; Santhi Sudha Radhakrishnan Govinda Mandir; Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 24TH DAY OF MAY 2016/3RD JYAISHTA, 1938** ## **MACA.No. 1026 of 2016 ()** **------------------------AGAINST THE AWARD IN OPMV 470/2007 of MACT, MAVELIKKARA DATED 18-11-2015** ## **APPELLANT/PETITIONER:** **----------------------** **RATHEESH KUMAR @ PODIMON, SANTHOSH BHAVANAM, ERUMAKUZHI MURI, PALAMEL, NOORANAD P O, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SREELEKHA, W/O.RATHEESH KUMAR @ PODIMON, SANTHOSH BHAVANAM, ERUMAKUZHI MURI, PALAMEL, NOORANAD P O** **BY ADVS.SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** ## **1. SIJURAJ** **SIJU BHAVANAM, EZHAMKULAM, ADOOR, PIN 691 523.** **2. SANTHI SUDHA RADHAKRISHNAN GOVINDA MANDIR, PARACODE PO, ADOOR 691 554.** **3. THE ORIENTAL INSURANCE CO. LTD., REP. BY ITS BRANCH MANAGER, BRANCH OFFICE, KAYAMKULAM 690 502.** ## **R3 BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VPV** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.No.1026 of 2016** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 24[th] day of May, 2016** ## **JUDGMENT** ## _**K.Ramakrishnan, J.**_ The claimant in O.P.(M.V.)No.470 of 2007 on the file of the Motor Accidents Claims Tribunal, Mavelikkara is the appellant herein. The claim petition was filed by the claimant seeking compensation for the personal injuries and disability suffered by him in a motor vehicle accident occurred on 22.7.2006. It is alleged in the petition that on 22.7.2006, at about 8 pm, while the claimant was travelling in a motor cycle with registration No.KL-3/A-2224 as a pillion rider and when it reached the place of occurrence, a pickup van with registration No.KL3/K-8903 driven by the first respondent, owned by the second respondent and insured with the third respondent, came and hit against the claimant and on account of which he sustained severe injuries. According to him, the accident occurred due to the negligent driving of the offending vehicle, namely pickup van, by the first respondent and respondents 1 to 3 are jointly and severally liable to pay compensation. He was a lorry driver by profession aged 28 years ## **M.A.C.A.No.1026 of 2016** ## **-:2:-** and getting Rs.6,000/- per month. He claimed a total compensation of Rs.3,50,000/- on various heads. 2. Respondents 1 and 2 remained absent. The third respondent entered appearance and filed a written statement admitting the insurance of the pickup van but denied the allegation that the accident occurred due to the negligence of the first respondent. According to them, the accident occurred due to the negligence of the rider of the motor cycle and as such, the petition is bad for non-joinder of necessary parties for non-impleadment of the owner, rider and insurer of the vehicle in which the injured was travelling as a pillion rider. The first respondent had no driving licence and as such, they are not liable to indemnify the injured. They denied the age, income, occupation, disability, etc. claimed by the claimant. According to them the total compensation claimed is exorbitant. They prayed for dismissal of the application. 3. The claimant was examined as PW1 and the doctor was examined as PW2 and Exts.A1 to A13 was marked on the side of the claimant. 4. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the offending vehicle by the first respondent and awarded a total compensation of Rs.1,93,518/- on various heads as follows: ## **M.A.C.A.No.1026 of 2016** ## **-:3:-** |**_Heads_**|**_Amount Awarded_**<br>**_(in Rupees)_**| |---|---| |Loss of earnings|16,000/-| |Transport to hospital|4,000/-| |Extra nourishment|2,000/-| |Damage to clothing|500/-| |medical expenses|11,458/-| |Bystanders expenses|2,400/-| |Pain and sufferings|35,000/-| |Compensation for loss of earning power<br>and shock. Compensation for continuing<br>or permanent disability|1,10,160/-| |Compensation for loss of enjoyment and<br>amenities in life|12,000/-| |Total|1,93,518/-| The tribunal held respondents 1 to 3 jointly and severally liable to pay the amount and directed the third respondent insurer of the vehicle to deposit the amount. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellant through his power of attorney holder. 5. Heard Sri.Manu Sebastian, learned counsel appearing for the appellant and Smt.K.S.Santhi, learned counsel appearing for the third respondent. Notice to respondents 1 and 2 dispensed with as the liability to indemnify the insured has not been disputed by the third respondent insurance company. 6. Learned counsel appearing for the appellant submitted that the claimant himself has claimed the sum of Rs.6,000/- as his monthly ## **M.A.C.A.No.1026 of 2016** ## **-:4:-** income which is reasonable and he had produced his driving licence to show that he is a heavy vehicle driver. So the tribunal was not justified in reducing the monthly income to Rs.4,000/-. He had relied on the decision reported in **Mini Rout and Another v. Satya Pradyumna Mohapatra and Others** [(2013) 10 SCC 695] in support of his submission. He had also submitted that the doctor has deposed that the victim/injured has 15% disability which is whole body disability and affect his earning capacity. But the tribunal has reduced the same to 9% without giving any reason. So the amount awarded under the head loss of earning capacity is very low and not in tune with the disability suffered. The amount awarded under the head loss of amenities in life is also on the lower side. So according to him, the claimant is entitled to get an enhanced compensation on all heads. 7. On the other hand, learned counsel for the insurance company submitted that the tribunal has considered all the aspects in the right perspective and awarded just and reasonable compensation and no interference is called for. 8. Since the liability of the insurance company and the finding regarding negligence have not been challenged, we are not going into those questions in this appeal. 9. The case of the claimant in the claim petition was that he was a lorry driver by profession, aged 28 years and drawing a salary of ## **M.A.C.A.No.1026 of 2016** ## **-:5:-** Rs.6,000/- per month. He has produced Ext.A10 driving licence to show that he is a heavy vehicle driver. He was examined as PW1 and gave evidence that he was getting an income between Rs.6,000/- and Rs.7,000/- per month and he had no permanent employer as such. It is true that he had not produced any document to prove his income as such. Ext.A10 driving licence shows that he is a heavy vehicle driver. So it cannot be said that he is not a skilled labourer. Further in the decision reported in **Mini Rout and Another v. Satya Pradyumna Mohapatra and Others** [supra] the Supreme Court has taken Rs.6,000/- as the monthly income of a car driver who died in the accident, though they claimed only Rs.5,000/- per month as the income of the deceased in the claim petition. In this case, the claimant had gone to the witness box and gave evidence regarding his income. Considering the fact that the accident occurred in the year 2006 and he is a heavy vehicle driver, the tribunal was not justified in reducing the monthly income of the injured as Rs.4,000/- especially when he claimed only a reasonable amount as his monthly income and we feel that Rs.6,000/- claimed by the claimant as his monthly income is reasonable and we take the same as his monthly income instead of Rs.4,000/- fixed by the tribunal. 10. Ext.A12 disability certificate coupled with the evidence of PW2 will go to show that he is having moderate pain and swelling over ## **M.A.C.A.No.1026 of 2016** ## **-:6:-** left leg, knee interfering with friction 6%, partial loss of mobility at the left knee joint and deformity and shortening of left leg for which 9% disability can be assessed and PW2 had deposed that he assessed a total disability of 15%. Unfortunately the length of shortening has not been mentioned in the disability certificate. Further the claimant has no case that he had surrendered his driving licence on account of his disability as he is not able to drive. But considering the nature of disability suffered it may have some impact on his earning capacity. So considering these aspects the tribunal was perfectly justified in fixing the permanent disability for assessing compensation under the head loss of earning capacity as 9% which appears to be just and proper and we do not find any reason to interfere with the same. 11. Further, the tribunal had rightly taken 50% for future prospects relying on the decision reported in **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 (SC)] which has been extended to injury cases in **Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Limited** [(2014) 2 SCC 735]. So making a recalculation on the basis of the above materials, the claimant will be entitled to get an amount of Rs.1,65,240/- (Rs.6,000 x 150% = Rs.9,000 x 12 x 17 x 9%) instead of Rs.1,10,160/- awarded by the tribunal under the head loss of earning capacity and thereby, he is entitled to an additional compensation of Rs.55,080/- under that head. ## **M.A.C.A.No.1026 of 2016** ## **-:7:-** 12. The tribunal has awarded only the sum of Rs.16,000/- under the head loss of earnings at the rate of Rs.4,000/- per month. Since we have taken the sum of Rs.6,000/- as his monthly income, the total compensation payable under the head loss of earnings will come to Rs.24,000/-, thereby the appellant will be entitled to get an additional amount of Rs.8,000/- under that head. 13. The tribunal has awarded only Rs.12,000/- under the head loss of enjoyment and amenities in life. Considering the fact that he sustained 15% disability and aged only 28 years and he has got restricted movement of knee joint and there is shortening of leg, the amount of Rs.12,000/- awarded appears to be on the lower side and we enhance the same to Rs.40,000/-, thereby the appellant will be entitled to get an additional amount of Rs.28,000/- under the head loss of amenities in life. We are not inclined to enhance any amount under other heads as the tribunal had awarded just and reasonable compensation under other heads. So the appellant/claimant is entitled to get an additional compensation of Rs.91,080/-, which we round off to Rs.91,100/-, over and above the compensation awarded by the tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Three months time is granted to the insurance company to deposit the amount. ## **M.A.C.A.No.1026 of 2016** ## **-:8:-** With the above modification of the impugned award, the appeal is allowed in part and disposed of accordingly. Sd/- **P.N.RAVINDRAN JUDGE** Sd/- **K.RAMAKRISHNAN JUDGE** /true copy/ P.A. To Judge **vpv**