Reji K.K. v. V.J. Prasad, V.J. Joseph and The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 3RD DAY OF JULY 2017/12TH ASHADHA, 1939 MACA.No. 2258 of 2012 () ------------------------AGAINST THE AWARD IN OP(M.V)No.1116/2006 of M.A.C.T, MUVATTUPUZHA DATED 26.4.2012 ## APPELLANT/PETITIONER: --------------------------- REJI K.K., S/O.KUMARAN KUNNUMPURATH HOUSE, KIZHKOMBU KARA, KOOTHATTUKULAM. BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ## RESPONDENTS/RESPONDENTS : ----------------------------------- 1. V.J.PRASAD, VETTICAPARAMBIL HOUSE, EDAYAR POST, KOOTHATTUKULAM 686662. 2. V.J.JOSEPH. VETTICAPARAMBIL HOUSE, EDAYAR POST, KOOTHATTUKULAM 686662. 3. THE ORIENTAL INSURANCE CO.LTD. MUVATTUPUZHA BRANCH 686661. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------M.A.C.A.No.2258 of 2012 -------------------------------Dated 3[rd] July, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Muvattupuzha dated 26.04.2012 in O.P.(M.V)No.1116 of 2006, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident occurred on 18.6.2006 while he was walking through the side of a public road. At the place of accident, a Maruti Omni van bearing Reg.No.KL-3/G-5052, driven and owned by respondents 1 and 2 and insured with the third respondent knocked down the appellant/claimant. He sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the van by the first respondent driver, claim petition was filed before the Tribunal claiming a total compensation of 3,07,000/-, under different₹ heads. 2. Before the Tribunal, Exts.A1 to A14 were marked on the side of the appellant/claimant and the doctor who had issued Ext.A14 disability certificate was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. M.A.C.A.No.2258/2012 2 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the offending vehicle by the first respondent driver. Since the said vehicle was covered by a valid insurance policy at the time of accident, the third respondent insurer was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of ₹4,50,035/- and directed the third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of petition till realisation, with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard arguments of the learned counsel for the appellant/claimant and also the learned counsel appearing for the 3[rd] respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal. 7. The accident is of the year 2006 and at the time of accident the appellant was aged 33 years. He claimed a monthly income of M.A.C.A.No.2258/2012 3 ₹6,000/- as a driver. In the absence of any reliable materials the Tribunal fixed the monthly income notionally at ₹3,000/-. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ Apex Court refixed the monthly income of a coolie who met with a motor accident in the year 2004 at 4,500/-. ₹ Considering the fact that the accident in the instant case is of the year 2006 and at the time of accident the appellant/claimant was an able bodied person aged 33 years, we deem it appropriate to re-fix his monthly income notionally at 5,500/- for the₹ purpose of assessing compensation under different heads. 8. The injuries sustained by the appellant/claimant, as borne out from Exts.A5 and A6 wound certificates, are as follows:- “Crush injury left leg above ankle with open comminuted segmental fracture both bones and above 15cm. Long bone loss and comminuted fracture femur. Open fracture left ankle with loss of distal tibia and fibula and crush injury left ankle region and compromised vascular fracture left femur.” The treatment the appellant had undergone, as borne out from Ext.A7 treatment certificate are as follows:- “On 18.6.06 emergency debridement external fixation transatrticular left ankle and upper tibial skeletal traction were done. On 10.7.06 SSG applied. After the graft was taken up the petitioner started on non weight bearing crutch walking and discharge on 17.7.06. On 30.8.06 ilizarov ring fixation was applied M.A.C.A.No.2258/2012 4 ion trifocal mode for ankle fusion. Two corticontomies were done. Transportation started on 5[th] day. Cheek X-ray showed good bone transport. On 5.10.06 change of wires and pin were done. On 9.1.07 ankle arthrodesis with bone grafting was done. On 17.4.08 ring was removed. Thereafter the petitioner was on follow up at periodic intervals as out patient and he was last reviewed on 16.10.08.” On account of the injuries sustained in the accident the appellant had undergone inpatient treatment from 18.6.2006 till 17.7.2006, which was followed by inpatient treatment for different spells, for a total period of 84 days. The said fact is not disputed by the learned counsel for the third respondent insurer. 9. Ext.A14 is the disability certificate issued by PW1 Doctor, in which the percentage of permanent disability has been certified as 27%. After considering Ext.A14 disability certificate with reference to the evidence of the doctor as PW1 and also the guidelines issued by the Government of India in the year 2001, the Tribunal scaled down the percentage of disability as 22% for the purpose of assessing compensation under different heads, as per the formula given in the said guidelines. In page No.10 of the award, the Tribunal has stated valid reasons for scaling down the percentage of disability as 22%. We find absolutely no grounds to interfere with the said procedure adopted by the Tribunal, after stating valid reasons. M.A.C.A.No.2258/2012 5 ## 10. The compensation awarded by the Tribunal under different heads reads thus:- |**_Head_**|**_Amount_**<br>**_claimed_**|**_Amount_**<br>**_awarded._**| |---|---|---| |Loss of earning|₹72,000/-|₹36,000/-| |General expenses:Transport to hospital,<br>damage to chothe, extra nourishment,<br>attendance expenses etc.|₹52,500/-|₹20,000/-| |Medical expenses|₹4,00,000/-|₹2,09,395/-| |Pain and suffering|₹1,00,000/-|₹ 30,000/-| |Loss of amenities|₹1,00,000/-|₹ 20,000/-| |Compensation<br>for<br>economic<br>loss<br>sustained<br>due<br>to<br>the<br>disability<br>(3000x12x17x22/100)|₹1,70,000/-|₹1,34,640/-| |Total|₹3,07,000/-|₹4,50,035/-| 11. Towards loss of earning, the Tribunal awarded a sum of ₹36,000/-, at the rate of ₹3,000/- for a period of 12 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, we find that the Tribunal is justified in granting loss of earning for a period of 12 months. Since we have already re-fixed the monthly income of the appellant/claimant notionally at 5,500/-, the compensation payable₹ under this head is re-fixed as 66,000/- (5,500x12), resulting an₹ additional compensation of **₹ 30,000/-** . M.A.C.A.No.2258/2012 6 12. Towards transportation to hospital, damage to clothing, extra nourishment and attendance expenses the Tribunal awarded a consolidated amount of 20,000/-. Admittedly, the appellant/claimant₹ had undergone inpatient treatment for a total period of 84 days. Since the accident is of the year 2006, he is entitled for bystanders expenses at the rate of 200/- per day, amounting to 16,800/-(200x84).₹ ₹ Towards extra nourishment, the appellant/claimant is entitled for a sum of 8,400/-(100x84). A sum of 1,000/- will have to be awarded₹ ₹ towards damage to clothing and a further sum of 2,000/- towards₹ transportation to hospital. In such circumstances, the total compensation payable under the above heads comes to 28,200/-₹ (16,800+8,400+1,000+2,000). After deducting 20,000/- awarded by₹ the Tribunal under the above heads, the appellant/claimant will be entitled for an additional compensation of **8,200/-₹** . 13. Towards medical expenses, the Tribunal awarded a sum of ₹2,09,395/covered by Ext.A13 series of medical bills. The compensation awarded by the Tribunal under the above head represents just and reasonable compensation, which requires no interference in this appeal. 14.Towards pain and suffering, the Tribunal awarded a sum of ₹30,000/- which also represents just and reasonable compensation, M.A.C.A.No.2258/2012 7 considering the nature of injuries sustained and the treatment the appellant had undergone. 15. Towards loss of amenities, the Tribunal awarded 20,000/-.₹ Considering the nature of injuries sustained and the disability that had arisen therefrom, as certified in Ext.A14 disability certificate, we deem it appropriate to re-fix the compensation under this head as 30,000/-,₹ resulting an additional compensation of **₹ 10,000/-** . 16. Towards disability compensation, the Tribunal awarded a sum of 1,34,640/-(3000x12x17x22/100). Since the appellant was aged 33₹ years at the time of accident the proper multiplier applicable going by the decision of the Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ is `16'. Since we have already re-fixed his monthly income notionally at ₹5,500/-, applying the multiplier of 16 and percentage of disability as 22%, the compensation payable under the head disability comes to ,2,32,320/-(5,500x12x16x₹ 22/100). After deducing 1,34,640/- awarded by the Tribunal, the₹ appellant/claimant will be entitled for an additional compensation of **₹ 97,680/-** under this head. 17. In the result, the appellant/claimant will be entitled for an additional compensation of **₹ 1,45,880/-** (97,680+10,000+8,200+ 30,000), which will carry interest at the rate of 8% per annum from the M.A.C.A.No.2258/2012 8 date of petition till realisation. 18. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal, within a period of two months from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS // true copy // P.S. To Judge