Ravindran v. Abdul Jaleel, Abdul Azeez and ICICI Lombard General 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 MONDAY, THE 18TH DAY OF JULY 2016/27TH ASHADHA, 1938 MACA.No. 345 of 2010 ( ) ------------------------AGAINST THE AWARD IN OPMV 315/2006 of MACT, IRINJALAKUDA DATED 25-08-2009 APPELLANT(S)/PETITIONER: ----------------------- RAVINDRAN AGED 41 YEARS, S/O.KOCHURAMAN, MONGADIPURAKKAL HOUSE, P.O.PERINJANAM, KOTTAMKULAM. ## BY ADVS.SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT(S):RESPONDENTS ----------------------------------- 1. ABDUL JALEEL, S/O.PATHUMMA ACHIPRA HOUSE, P.O.BEEMANADU, ALANALLUR VIA, PALAKKAD. 2. ABDUL AZEEZ, S/O.MUHAMED, ACHIPRA HOUSE, P.O.BEEMANADU, ALANALLUR VIA, PALAKKAD. 3. ICICI LOMBARD GENERAL INSURANCE CO.LTD., KANNANKERY ESTATE, 3RD FLOOR, MARINE DRIVE, SHANMUGHAM ROAD, COCHIN. R3 BY ADV. SRI.R.AJITH KUMAR R3 BY ADV. SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.345 OF 2010** **==========================** Dated this the 18[th] day of July, 2016 ## **JUDGMENT** _Ravikumar, J._ The appellant was the claimant in O.P.(MV).No.315 of 2006 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. He filed the said claim petition seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 12.2.2006. He was a pedestrian and he was knocked down by a mini bus bearing Reg.No.KL-9/S 5040, driven by the second respondent. 2.To establish his claim for a total compensation of `2,00,000/-, the appellant-petitioner adduced documentary evidence consisting of Exts.A3 to A5. Ext.A3 is the wound certificate and Ext.A4 is the discharge card and Ext.A5 is the disability certificate. After **M.A.C.A.345/2010** 2 considering the evidence on record and the rival contentions, the Tribunal passed an award for a total sum of `90,400/- with interest @ 7% per annum from the date of the petition till realisation. It is dissatisfied with the quantum of compensation awarded that the captioned appeal has been preferred. 3.We have heard the learned counsel for the appellant and the learned counsel for the third respondent. 4.The learned counsel for the appellant contended that the Tribunal fixed the monthly income of the appellant meagrely at `2,000/-, for calculation purpose. The learned counsel further submitted that taking note of the age of the appellant on the date of the accident as also the year of the accident, the Tribunal ought to have fixed a higher rate of monthly income. The learned counsel submitted that the Tribunal granted only inadequate compensation under the heads pain and suffering, loss of amenities, loss of earning capacity, transportation expenses, bystanders expenses as also for permanent **M.A.C.A.345/2010** 3 disability. It is further submitted that the appellant had been an inpatient for a period of 29 days. No amount was granted towards extra nourishment. In short, the learned counsel submitted that under all the aforesaid heads, an upward modification is required. 5.The learned counsel for the third respondent submitted that though the appellant claimed only `1,500/- as monthly income, the Tribunal took the monthly income as `2,000/- and therefore, the appellant cannot have any further grievance on that point. It is further contended that a scanning of the impugned judgment would reveal that the Tribunal has granted adequate compensation under all heads. In short, it is the submission that no appellate interference is warranted in this case. 6.True that the appellant had stated in the claim petition that he was earning an amount of `1,500/- as a coconut climber. But it is a fact that the appellant had failed to adduce any evidence to establish his occupation and income. Still, the Tribunal took the monthly **M.A.C.A.345/2010** 4 income of the appellant as `2,000/- ignoring the fact that he claimed only a lower amount viz., `1,500/-. The accident occurred on 12.2.2006. The appellant was aged 41 years. In such circumstances, we are of the considered view that though the appellant had only claimed a lower income, it is only fair and proper to take the monthly income of `3,000/- for the appellant for calculation purpose. At any rate, we are of the view that the amount fixed by the Tribunal as monthly income viz., `2,000/- is too low and therefore, we are inclined to fix the monthly income as `3,000/- per month for calculating compensation for loss of earning. Ext.A3 would reveal that in the accident the appellant had sustained fracture of transverse process of L5, blunt injury on the abdomen involving perforation and liver laceration. In such circumstances, we are of the view that the period to be reckoned for the purpose of loss of earning ought to have been four months. In the light of the monthly income fixed by us, the appellant would be entitled to get an additional amount of `6,000/-. The learned counsel for the appellant contended that the Tribunal went wrong in not accepting the entire percentage of disability certified **M.A.C.A.345/2010** 5 under Ext.A5. As per Ext.A5, the percentage of permanent disability of the appellant was certified as 12%. It is to be noted that Ext.A5 is not issued by a duly constituted medical board and the doctor who issued the said certificate was not examined before the Tribunal. Taking note of the injuries sustained by the appellant and also the aforesaid facts, we do not find any flaw on the part of the Tribunal in fixing the percentage of permanent disability as 6%. The appellant was aged 41 years on the date of the accident and in such circumstances, the Tribunal has erred in fixing the multiplier as 16 going by the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)].** In terms of the schedule attached to the said decision, the multiplier to be adopted with reference to the age of the appellant is 14. In such circumstances, the multiplier is fixed as 14. Re-assessing the compensation payable for permanent disability with the modified monthly income and multiplier, the appellant would be entitled to get an amount of `8,640/- additionally. Taking note of the injuries sustained by the appellant, we are of the view that he is entitled to get **M.A.C.A.345/2010** 6 `5,000/- more towards pain and suffering and also `5,000/- more under the head loss of amenities. Towards transportation expenses, the Tribunal granted only an amount of `1,000/-. The injuries sustained by the appellant would undoubtedly go to show that he must have had another visit to the hospital for review in connection with the treatment for the injuries sustained by him, after the initial hospitalisation and discharge. In such circumstances, we are inclined to grant `1,000/- more under the said head. Towards transportation expenses, the Tribunal awarded only an amount of `2,900/-, i.e., @ `100/- per day, for a period of 29 days. Taking note of the year of the accident, we are of the view that the rate ought to have been `200/per day. Consequently, the appellant would be entitled to get `2900/more under that head. In the light of the injuries sustained by the appellant and also taking note of the number of days of hospitalisation, we are of the view that the Tribunal was not justified in declining to grant any amount under the head extra nourishment. The nature of the injuries and the number of hospitalization would undoubtedly indicate that he must have taken nutrient food during the **M.A.C.A.345/2010** 7 said period. In such circumstances, we are inclined to grant an amount of `4,000/- towards extra nourishment. In the light of the discussions as above, the appellant is entitled to get an additional compensation of `32,540/- which is rounded off to `32,600/-. The said 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 one month from the date of receipt of a copy of this judgment failing which the amount remaining to be paid will carry interest at 9%. The insurance company will be entitled to recover the amount from the first respondent as directed by the Tribunal. The appeal is accordingly allowed. There will be no order as to costs. ## **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** ## **spc/** **M.A.C.A.345/2010** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.345/2010** 9 **JUDGMENT September, 2010**