Reghu @ Reghunathan S/o PuthiyEdath GopalAnAir v. Dallis Davis Thaikkattussery; Sijesh So.PunnaKuzhi Sankarankutty Puthoor; The Manager, New India Assurance Company

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945** **MACA NO. 3021 OF 2009** **AGAINST THE ORDER/JUDGMENT OPMV 1503/2005 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL IRINJALAKUDA** ## **APPELLANT/PETITIONER:** REGHU @ REGHUNATHAN S/O.PUTHIYEDATH GOPALAN NAIR,, THRIKKUR VILLAGE, DESOM, THRISSUR DISTRICT. BY ADV SRI.T.N.MANOJ ## **RESPONDENTS/RESPONDENTS:** 1 DALLIS DAVIS THAIKKATTUSSERY, OLLUR POST. 2 SIJESH SO.PUNNAKUZHI SANKARANKUTTY PUTHOOR VILLAGE, PONNOOKKARA DESOM. 3 THE MANAGER NEW INDIA ASSURANCE COMPANY,, PERINCHERY BUILDING, ROUND NORTH, THRISSUR. BY ADV SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 3021 of 2009 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(M.V) No. 1503/2005 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 20.04.2004. 2. The accident occurred when the motorcycle on which the appellant was a pillion rider overturned due to the rash and negligent riding of the 2nd respondent. The said motorcycle was owned by the 1st respondent and was insured with the 3rd respondent herein. He was aged 26 years and was earning a monthly income of Rs.4,500/- from his employment as a marble worker. Due to the injuries sustained, he suffered permanent disablement as well, and the claim petition was submitted in such circumstances. 3. The 3rd respondent/insurance company filed a written statement, contending that even though the motorcycle was covered with an insurance policy, there was no coverage for the pillion rider. They also disputed the quantum of compensation. M.A.C.A No. 3021 of 2009 3 4. The evidence in this case consists of Exts.A1 to A7 from the side of the appellant and Ext.B1 was marked from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2nd respondent in riding the motorcycle and being the insurer of the said vehicle, the 3rd respondent was held liable to pay the compensation. The contention raised by the 3rd respondent regarding the lack of coverage for the pillion rider was rejected because the vehicle was issued with a comprehensive policy. The quantum of compensation was fixed as Rs.42,900/and the said amount was directed to be deposited by the 3rd respondent with interest at the rate of 7% per annum from the date of petition till realisation with proportionate cost. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.T.N.Manoj, the learned counsel appearing for the appellant and Smt. Raji T Bhasker, the learned counsel appearing for the 3[rd] respondent. 6. The only challenge in this case relates to the quantum of compensation particularly under the head of disability. The M.A.C.A No. 3021 of 2009 4 learned counsel specifically highlights that even though he sustained permanent disablement, which was certified as per Ext.A5 as 8%, the Tribunal did not accept the said certificate and no compensation was granted under the said head. The learned counsel for the insurance company points out that the Tribunal rightly rejected the Ext.A5 medical certificate as the same was not properly proved by examining the Doctor. 7. I have carefully gone through the records. Ext.A3 is the wound certificate issued from St.James Hospital, Chalakudy, wherein the injuries sustained by the appellant were described as follows: “Deformity of right lower leg. Multiple abrasions over the left hand. Swelling over the right lower leg. A small wound 5x1 cm over the right knee. Fracture of both bones of the lower 4[th] of right leg.” 8. The fact that the appellant was a marble worker is not seriously disputed. Considering the nature of injuries and the nature of employment the appellant was engaged in, the possibility of him sustaining a loss of earning capacity of 8% cannot be ruled out as a consequence of such injuries. Therefore, M.A.C.A No. 3021 of 2009 5 even though the Doctor who issued the Ext.A5 certificate was not examined, I am of the view that the percentage of disability certified therein can be accepted as it appears to be probable in the facts and circumstances of the case. 9. The next element to be determined for assessing the compensation is the monthly income. The appellant claimed that his monthly income was Rs.4,500/- at the relevant time, but the Tribunal accepted only Rs.2,000/-. Considering the fact that the accident occurred in the year 2004, the monthly income of Rs.2,000/- appears to be on the lower side. It is to be noted that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], the Honourable Supreme Court was pleased to take the monthly income of an ordinary worker without any skills as Rs.4,500/- even without any evidence. Therefore, I find that the monthly income of Rs.4,500/as claimed by the appellant is a reasonable figure and it is accordingly accepted. Thus, while reassessing the compensation with the above-revised criteria, the compensation for disability would come to Rs.73,440/- (4500x12x17x8/100). M.A.C.A No. 3021 of 2009 6 10. The other head, which was highlighted by the learned counsel for the appellant, is the compensation for loss of earnings. The Tribunal has awarded the compensation under this head for a period of three months. According to the learned counsel for the appellant, the medical records would indicate that after the accident occurred on 20.04.2004, he continued the treatment up to 01.10.2004, including the impatient treatment for 12 days. Therefore, at least six months ought to have been taken for the purpose of compensation under the said head. Of course, it is true that, in the discharge summary, it is mentioned that the petitioner was reviewed up to 01.10.2004, but that cannot be interpreted to mean that, till such time, he was unable to pursue his avocation. Therefore, the compensation under this head cannot be granted for six months, but taking note of the nature of injuries and the nature of avocation the appellant was engaged in, I find that in all probabilities, he might have been prevented from pursuing his employment at least for a period of four months. Therefore, the compensation can be granted under this head for a period of four months. I have already fixed the monthly income at Rs.4,500/-. The said figure has to be taken for assessing the compensation M.A.C.A No. 3021 of 2009 7 under this head. Thus, while reassessing the compensation, the additional amount under the head of loss of earnings would come to Rs.12,000/-. 11. The next head which requires attention is compensation for pain and suffering. The Tribunal awarded Rs.12,000/- under the said head. In the light of the injuries the appellant had already sustained, which are extracted above, I am of the view that some more amount ought to have been granted under this head. This is particularly because he availed a prolonged treatment consequent to such injuries even after his discharge from the hospital. Therefore, I deem it appropriate to grant an additional amount of Rs.13,000/- under the said head. 12. Similarly, the amount awarded under the head of loss of amenities and discomfort was only Rs.5,000/- which is also on the lower side. Considering the nature of the injuries and the disability which arose on account of the same, I deem it appropriate to grant a further sum of Rs.17,000/- under the said head as well. Thus, the total additional compensation receivable by the appellant is determined as Rs.1,15,440/- (73,440 + 12,000 + 13,000 + 17,000). M.A.C.A No. 3021 of 2009 8 In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 11.06.2009 in O.P.(M.V) No.1503/2005 passed by the Motor Accidents Claims Tribunal, Irinjalakuda is hereby modified by granting an additional compensation of Rs.1,15,440/- (Rupees one lakh fifteen thousand four hundred and forty only) and the said amount shall be deposited by the 3[rd] respondent/insurance company with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk