Riyasudheen S/o Abdul Azeez v. Sijumon, Shafeer B. and Reliance General Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938** **MACA.No. 3357 of 2016 () -------------------------** **AGAINST THE AWARD IN OPMV 1958/2011 of MACT, THRISSUR** ## **APPELLANT/PETITIONER :** **------------------------** **RIYASUDHEEN S/O. ABDUL AZEEZ, ELECTRICIAN, PUDUPPALLY, THERUVU, PUDUNAGARAM, PIN-678 503, PALAKKAD DISTRICT.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS :** **---------------------------** **1. SIJUMON** **S/O. SHERIFF, KIZHAKKEKOOZHUVATHARA, PANAVALLY P.O., CHERTHALA, ALAPPUZHA DISTRICT-688 524.** **2. SHAFEER B.** **S/O. SHARAFFUDHEEN, ERANIMANGALAM, POOCHAKKAL P.O., CHERTHALA, ALAPPUZHA DISTRICT-688 526.** **3. RELIANCE GENERAL INSURANCE COMPANY LIMITED BRANCH OFFICE, VANCHIKULAM ROAD, P.O.POOTHOLE, THRISSUR-680 004.** **R3 BY SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.3357 OF 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of November, 2016 ## **JUDGMENT** ## Ravikumar, J. The victim of a motor vehicle accident involving a motor cycle and a lorry preferred this appeal on being aggrieved by the quantum of compensation granted by the Motor Accidents Claims Tribunal, Thrissur as per the award in O.P.(MV)No.1958/2011. The appellant filed the said claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in the accident that occurred on 29.06.2010. He was then riding his motor cycle bearing Reg.No.KL 9/ X-1797 through Kuzhalmannam-Chandra Nagar. The offending vehicle which is a lorry bearing Reg.No.KL 13 Q/2183 driven by the second respondent dashed against it. On sustaining injuries, the appellant was immediately taken to the hospital and he remained there as an inpatient for a period of 34 days. MACA No.3357/2016 2 Evidently, the injuries sustained by him resulted in permanent disability. It is in the said circumstances that the aforementioned claim petition was moved seeking a total compensation of Rs.4,41,500/-. 2. Before the Tribunal no oral evidence was adduced by both sides. Respondents have not produced any documentary evidence as well. On the side of the appellants, Exts.A1 to A12 were got marked. The Tribunal on evaluation of the evidence on record and the rival contentions passed the impugned award for a total compensation of Rs.4,17,800/- with interest @ 9% per annum from the date of petition till realization. As noticed hereinbefore it is dis-satisfied with the said quantum of compensation fixed by the Tribunal that the captioned appeal has been preferred. 3. When this matter is taken up for consideration, it is submitted by the learned counsel for the third respondent that there is no dispute regarding the liability to indemnify the insured owner. In such circumstances, we are of the considered view that there is absolutely no need to issue notice to respondents 1 and 2. Hence issuance of notice to respondents 1 and 2 is dispensed with. In such MACA No.3357/2016 3 circumstances, taking note of the fact that the sole question to be decided in this appeal is regarding the entitlement of the appellant to get enhanced compensation, we are proceeding to consider the said question at this stage itself. 4. The learned counsel appearing for the appellant submitted that the erroneous fixation of the monthly income by the Tribunal virtually deprived the appellant just compensation. It is submitted that the accident occurred on 29.6.2010 and on the day of the accident, the appellant was aged only 24 years. The learned counsel further submitted that Ext.A10 -A12 would reveal that he was holding a trade certificate and he was employed in a private firm. Those documents would reveal that he was an Electrician working in SEPR Refractories India Pvt. Ltd., Kanjikode West, Palakkad District. Ext.A12 would reveal that his net salary is Rs.7,896/-. 5. The learned counsel appearing for the third respondent submitted that it cannot be said that the Tribunal had erred in fixing the monthly income notionally. It is submitted that despite taking up such averments in the claim petition, the appellant had not proved those MACA No.3357/2016 4 documents and in such circumstances, the Tribunal was right in fixing the monthly income notionally. 6. Having heard the learned counsel on both sides and taking into account the nature of evidence tendered by the appellant to prove the averments regarding occupation and income, we are of the view that merely because a person has asserted a particular income in the claim petition, in the absence of evidence to establish such averments, the Tribunal cannot be found fault with in not acting upon such documents. The mere production of documents would not be a reason for simply accepting them and acting upon them when it is evident that the appellant had not proved the said document by examining the persons who are competent to prove the same. We are of the view that the action of the Tribunal in declining to accept and act upon on Exts.A10 to A12 cannot be said to be an error. We do not find any reason to hold that the Tribunal went wrong in fixing the monthly income notionally. But at the same time, the question is whether the fixation of monthly income notionally at Rs.5,000/- invites interference. While considering that question, the year of the accident MACA No.3357/2016 5 and the age of the appellant on the day of the accident have to be taken into account. We are also of the view that in the matter of fixation of monthly income in respect of a person who can be considered as a manual labourer the decision in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. [( 2011) 13 SCC 236]** can act as a guidance. In that case in respect of a coolie who met with an accident in the year 2004, for calculation purpose the Hon'ble Apex Court fixed the monthly income notionally at Rs.4,500/-. The accident in question occurred on 29.06.2010 and as noticed hereinbefore at that point of time, the appellant was aged only 24 years. When that be the circumstance, we are of the view that a higher income ought to have been taken by the Tribunal for calculation purpose. In such circumstances, taking into account the aforesaid factors, we are inclined to fix the monthly income at Rs.7,000/- notionally for calculation purpose. 7. The learned counsel for the appellant further contended that the Tribunal also erred in not accepting the permanent disability assessed in Ext.A7 and Ext.A8 disability certificates. Ext.A7 disability MACA No.3357/2016 6 certificate is issued by one Dr.Biju Krishnan R, who was then a Professor of Neurosurgery attached to Medical College Hospital, According to him, the whole body disability is 10%. Ext.A8 is the certificate issued by one Dr.Jyothish K. who was then the Assistant Professor of Orthopaedics attached to Government Medical College Hospital, Thrissur. He certified that the whole body permanent physical disability of the appellant is 30.7%. We do not think it necessary to go into the details contained in the certificates as it is obvious that the doctors who issued the said certificates were not examined before the Tribunal. Evidently, they are not certificates issued by a duly constituted medical board. In such circumstances and especially in the light of the decision of the Hon'ble Apex Court in **Rajkumar v. Ajaykumar (2011 (1) SCC 343)** , the disinclination shown by the Tribunal to act upon Exts.A7 and A8 cannot be said to be an error warranting appellate interference. In the light of the decision of the Hon'ble Apex Court in **Rajkumar's** case, a mere production of disability certificate or a discharge certificate could not be taken as a proof of the extent of disability stated in such certificate unless the MACA No.3357/2016 7 Doctor who treated the claimant or who medically examined and assessed the disability of the claimant tendered for cross examination with reference to such certificates. But at the same time, we are of the view that the assessment of permanent disability as 25% by the Tribunal need not be interfered with. Paragraph 16 of the impugned judgment would reveal that the appellant appeared before the Tribunal for personal examination and the Tribunal noticed that even at that point of time he was using a stick to walk and he found it difficult to climb steps. A bulge was also seen on his left leg. It is after observing the appellant who appeared before the Tribunal that the Tribunal assessed the disability as 25%. It is a fact that even though Exts.A7 and A8 were not proved before the Tribunal, such documents were available before the Tribunal and it is thereafter that on appearance of the appellant before the Tribunal, the Tribunal arrived at such a conclusion. In such circumstances, we are of the view that the assessment made by the Tribunal requires no interference. 8. The learned counsel further submitted that having assessed the disability of the appellant as 25%, the Tribunal ought to have MACA No.3357/2016 8 granted adequate compensation for loss of amenities and convenience. Only an amount of Rs.15,000/- was granted. After hearing the contentions, we are of the view that the impugned judgment invites interference based on the refixed monthly income and on certain other grounds. We have already refixed the monthly income as Rs.7,000/-. It is admitted by both sides that the Tribunal correctly identified the multiplier with reference to the age of the insured appellant. In such circumstances, a re-assessment of compensation for loss of earning power is required only with substitution of the monthly income. On such re-assessment, the appellant would be entitled to get an additional amount of Rs.1,08,000/- ( 7000 x 12 x 18 x 25% - 270000). Since the Tribunal has fixed the percentage of disability as 25%, certainly there is force in the contention of the learned counsel that the compensation granted under loss of amenities requires upward modification. Taking note of the fact that the appellant has sustained comminuted fracture of both bones besides other injuries noted in Exts.A4 to A8, we are of the view that an additional amount of Rs.10,000/- can be granted under the head loss of amenities. It is awarded. In the light of the refixed MACA No.3357/2016 9 monthly income, the appellant is entitled to get a proportionate enhancement of compensation under the head loss of earning. The Tribunal took the period as five months. In such circumstances, the appellant would be entitled to get Rs.10,000/- additionally towards loss of earnings. In the light of the discussion as above, the appellant is entitled to get an additional compensation of Rs.1,28,000/-. It is awarded. The third respondent is directed to deposit the additional compensation along with interest @ 8% per annum from the date of petition till realization within a period of two months from the date of receipt of a copy of this judgment. In the circumstances, the parties shall bear their respective costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 03/11/2016