Raveendran Achary v. Manojkumar, Vinod, and The Divisional Manager, National Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944 ``` ## `MACA NO. 2375 OF 2015` ``` [AGAINST THE AWARD DATED 13.03.2015 IN OP(MV)NO.182/2010 ON THE FILES OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR] ``` ## `APPELLANT/PETITIONER:` ``` RAVEENDRAN ACHARY, S/O. KUNJIRAMAN ACHARY, RACHANA NIVAS, PUZHUMKALA JUCTION, PANDITHITTA, THALAVOOR, KOLLAM DISTRICT. ``` ``` BY ADV SRI.ANCHAL C.VIJAYAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1MANOJKUMAR, S/O CHANDRASEKHARAN PILLAI, PUTHIYA VEEDU, KURA PO, VADACODU, KOTTARAKKARA, PIN-691 557. 2VINOD, S/O. SASIDHARAN, VINOD MANDIRAM, MANAKKARA, SASTHAMKOTTA, KOLLAM DISTRICT, PIN-690 521. 3THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, KOLLAM DISTRICT, PIN-691 001. ``` ``` BY ADVS.SRI.K.K.DHEERENDRAKRISHNAN SRI.P.G.JAYASHANKAR SRI.S.RAJEEV SRI.RAJESH THOMAS SRI.V.VINAY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2375 OF 2015 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellant, who was working as a carpenter, met with a road accident on 01.10.2009, while he was travelling in a private bus, on account of the rash and negligent driving by its driver. He sustained very serious injuries;andhe,therefore,preferred OP(MV)No.182/2010 before the Motor Accidents Claims Tribunal, Punalur, (‘Tribunal’, for short), seeking a compensation of Rs.1,00,000/- ``` ``` and which was, in fact, allowed to a larger amount of Rs.1,08,900/-. He, however, assails it on the ground that even the said figure is not a just and fair compensation, going by the judicial precedents which cover the field. ``` ``` 2.Sri.Anchal C.Vijayan – learned counsel for the appellant, pointed out that the Tribunal has only reckoned Rs.4,500/- as the notional income oftheappellant;while,in ``` ``` MACA NO. 2375 OF 2015 ``` ``` -3- ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC ``` ``` 236], the Hon’ble Supreme Court has postulated that, even in the case of a person with unascertainable income in the year 2009, the minimum to be adopted is Rs.7,000/-. He added that, since his client is a carpenter – which is a skilled avocation –Rajani v. Oriental ``` ``` Insurance Company Limited [2022 (5) KLT OnLine 1012 (SC)]would authorize a much higher ``` ``` notional income. ``` ``` 3.Sri.AnchalC.Vijayan,thereafter, ``` ``` submitted that Exts.A8, A9 and A10 - Outpatient ``` ``` records establish that his client was under ``` ``` treatment for a continuous period of six months and therefore, that his “Loss of Earning” ought to have been taken for such period; while, the percentile of disability has been reduced from 15 to 10 by the Tribunal in a very uncharitable ``` ``` MACA NO. 2375 OF 2015 ``` ``` -4- ``` ``` - manner,becauseExt.A14Disability ``` ``` Certificate, issued by a very competent Medical Board consisting of eight doctors of the Medical College Hospital, Thiruvananthapuram, certified it to be 15%. ``` ``` 4.Sri.Anchal C.Vijayan, thereafter, argued that it was extremely unjust for the Tribunal not to have granted any amount towards “Loss of Amenities”; and that the sum awarded for “Pain and Suffering” is exiguous. He submitted that ``` ``` this is obvious from the fact that the appellant ``` ``` had suffered very grievous injury in his pelvic area and is incapacitated to work as a carpenter even now. ``` ``` 5.Sri.P.G.Jayashankar – learned Standing ``` ``` Counsel for the National Insurance Company Limited (‘Insurance Company’, for short), on the other hand, submitted that the computation made by the Tribunal, in arriving at the ``` ``` MACA NO. 2375 OF 2015 ``` ``` -5- ``` ``` compensation, is irreproachable, particularly because the appellant had only sought Rs.1,00,000/- as compensation. ``` ``` 6.Sri.S.Rajeev – learned counsel appearing ``` ``` for respondent No.1, submitted that he has no comment to make on the claim of the appellant, because the Tribunal has not fixed any liability ``` ``` to pay compensation on his client. ``` ``` 7.I have considered the afore rival ``` ``` submissions, on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 8.I do not need to labour more than to say ``` ``` thatRamachandrappa (supra) makes it evident that the minimum income which the Tribunal ought to have reckoned for the appellant was Rs.7,000/-, even in year 2009 when the accident ``` ``` MACA NO. 2375 OF 2015 ``` ``` -6- ``` ``` occurred. The fact that the appellant is a carpenter and that this is uncontroverted, would certainly persuade me, going by the ratio in Rajani (supra), to add a further Rs.1,000/- to ``` ``` this, because it is a skilled avocation. ``` ``` 9.The other controversy is regarding the percentile of disability and the number of ``` ``` months that the appellant must have lost, thus ``` ``` to be compensated for “Loss of Earning”. ``` ``` 10.As regards the percentile of disability, ``` ``` I find complete agreement with the submissions ``` ``` of Sri.Anchal C.Vijayan because, when Ext.A14 - ``` ``` Medical Certificate, issued by a competent Medical Board of nearly eight doctors of the ``` ``` Medical College Hospital, certifies it to be ``` ``` 15%, I see no cause for the learned Tribunal to have reduced it to 10%. However, paragraph 13 of the impugned Award provides a reason for this, namely, that the Tribunal thought that Ext.A14 ``` ## `MACA NO. 2375 OF 2015` ``` -7- ``` ``` was issued by a doctor and not by a Medical Board. This is factually incorrect. ``` ``` 11.I am, therefore, of the firm view that the disability should be taken as 15%, as ``` ``` certified by the experts, particularly because, functionally, the injuries sustained by the appellant causes great impediment to him in ``` ``` continuing with his avocation. I say so because, the medical evidence on record clearly establishes that he had a malunited fracture of left acetabulam and that he had sustained severe pelvic injury. ``` ``` 12.Coming to the question of compensation for “Loss of Earning”, again, I find favour with the appellant when he says that he has suffered six months of treatment, thus unable to work. This is evident from Exts.A7 to A10 records of the Medical College Hospital, Thiruvananthapuram and this has not been controverted. ``` ``` MACA NO. 2375 OF 2015 ``` ``` -8- ``` ``` 13.As regards the compensation awarded by the Tribunal under the head “Pain and Suffering”, I notice that what is awarded is Rs.15,000/-, against the claim of Rs.30,000/-. ``` ``` Going by the medical records and the condition ``` ``` of the appellant, as discernible from it, I deem ``` ``` it appropriate to enhance the same to Rs.25,000/-. ``` ``` 14.Finally, qua the compensation for “Loss ``` ``` of Amenities”, I am of the firm view that the ``` ``` Tribunal ought to have granted a minimum of Rs.10,000/- under that head. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` ``` (a) The compensation for “Permanent ``` ``` Disability” is revised to Rs.1,58,400/- (Rupees one lakh fifty eight thousand four hundred only), from Rs.59,400/- granted by the Tribunal, reckoning the notional income of the appellant ``` ``` MACA NO. 2375 OF 2015 ``` ``` -9- ``` ``` as Rs.8,000/- and his percentile of disability ``` ``` to be 15. ``` - `(b) Axiomatically, the compensation for` - `“Loss of Earning” is enhanced to Rs.48,000/-` ``` (Rupees forty eight thousand only), instead of ``` ``` Rs.18,000/- awarded by the Tribunal. ``` - `(c) The compensation under the head “Pain` ``` and Suffering” is enhanced to Rs.25,000/- ``` ``` (Rupees twenty five thousand only), from Rs.15,000/- now granted. ``` - `(d) An additional amount of Rs.10,000/-` ``` (Rupees ten thousand only) is granted under the head “Loss of Amenities”. ``` - `(e) In all other heads, amounts granted by` ``` the Tribunal will remain intact. ``` ``` Needless to say, theappellant will be at ``` ``` full liberty to recover the compensation, as enhanced by this Court, from the Insurance ``` ``` Company, along with interest at the rate of 8% ``` ## `MACA NO. 2375 OF 2015` **==> picture [30 x 9] intentionally omitted <==** ``` (modifying the percentage of 9 granted by the Tribunal) from the date of claim until it is recovered.He will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```