Roy P.J. v. P.H. Moideen and The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937 **MACA.No. 1493 of 2007 ( ) --------------------------** AGAINST THE AWARD IN OPMV 2173/2002 of M.A.C.T., THRISSUR DATED 08.06.2006) APPELLANT/PETITIONER: ------------ ROY P.J., S/O.JOHN, RESIDING AT PUTTANIYIL HOUSE,MURIKKUMPARA,MANNAMANGALAM P.O,THRISSUR. BY ADVS. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS RESPONDENT(S): -------------- 1. P.H.MOIDEEN, S/O. HANEEFA, RESIDING AT PARAMEL HOUSE,P.O KARIKAD,PERUMBILAVU,THRISSUR, DISTRICT. * 2. ROY,S/O.KUNJIPALU,RESIDING AT CHITTILAPPILLY HOUSE,KARIKKAD P.O,PERUMBILAVU,, THRISSUR. _**[*DELETED][2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 26.02.2016 IN IA 619/16.]**_ 3. THE ORIENTAL INSURANCE COMPANY LIMITED, 2ND FLOOR,T.D BUILDING,P.B. NO.158,ROUND WEST,, THRISSUR. R.3 BY ADV. SRI.P.JACOB MATHEW R.3 BY ADV. SRI.MATHEWS JACOB (SR.) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **M.A.C.A.No.1493 OF 2007** ......................................................................... **Dated this the 2[nd] March, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Inadequacy of compensation awarded by the Tribunal is under challenge in this appeal. The accident occurred on 24.03.2002. The petitioner was riding a motor cycle bearing No.KL.8/P-3803, when a mini bus ( owned and driven by the 1[st] and second respondents respectively) bearing No.KL.8/S-3492 came from the opposite direction in a rash and negligent manner and hit the motor cycle, as a result of which, the petitioner sustained serious injuries. Claiming a total compensation of Rs.5 lakhs, a claim petition under Section 166 of the M.V.Act was filed before the Tribunal. 2. Respondents 1 and 2 did not choose to contest the matter and they remained ex parte. The third respondent/insurance company filed a written statement disputing the claim on general grounds. Evidence adduced from **2** ## **M.A.C.A.No.1493 OF 2007** the part of the claimant consists of documentary evidence of Exts.A1 to A13 and oral testimony of P.Ws.1 and 2. Ext.B1 is the copy of the policy produced from the part of the third respondent/insurer. The injuries sustained by the petitioner (as revealed from Ext.A2 discharge certificate and discussed in paragraph 9 of the award) are the following: _”fracture of right femur shaft, fracture to trauchanteric medical mallelus, right ulna and fracture right 5[th] metacarpel. There was also injuries on his head. ”_ 3. The amounts awarded by the Tribunal under various ## heads are the following: |are the following:|| |---|---| |**Head**|**Amount**<br>**(Rs.)**| |Loss of earning|12000/-(2000 x 6)| |Expense for transportation|2500/-| |Expense for extra nourishment|1000/-| |Damages to clothing|500| |Expense for treatment|89,150/-| |Expense for bystander|1500/-| |Future treatment|10000/-| |Pain and suffering|25000/- (wrongly<br>entered as Rs.20000/-)| |Permanent disability|51840/-| **3** ## **M.A.C.A.No.1493 OF 2007** |**Head**|**Amount**<br>**(Rs.)**| |---|---| |Loss of amenities|10000/-| |Total|**203490/-**| 4. The learned counsel for the appellant submits that there is absolutely no rhyme or reason on the part of the Tribunal to have reduced the extent of disability certified as per Ext.A9, from 20% to 12%, that too, even after the deposition made by the doctor, who was examined as P.W.2. The learned counsel also points out that the income reckoned by the Tribunal is also much on the lower side and that the appellant was working as a 'Videographer' on the relevant date, with a monthly income of Rs.5,000/-. 5. The learned counsel for the Insurance Company submits that the income and avocation have not been proved and that the multiplier adopted by the Tribunal is also on the higher side. It is stated that the disability certificate has been issued by a doctor who had not treated the appellant and that the reasoning given by the Tribunal in paragraph 10 for reckoning only '12%' **4** ## **M.A.C.A.No.1493 OF 2007** disability as against the certified extent of 20%, is not liable to be intercepted in any manner. 6. After hearing both the sides, this Court finds that the appellant had not produced any documents regarding avocation or income. It was quite possible for the appellant to have adduced evidence by virtue of his alleged engagement as a Videographer by producing bills issued to the customers or in respect of electricity charges, licence issued by the local authority or such other materials. Still, it is to be borne in mind that the accident was in the year 2000 and the appellant had crossed the age of 30 years. As such, the income reckoned by the Tribunal is on the lower side. We find it appropriate to have it enhanced by 50% more and re-fix the same as Rs.3000/- for working out the compensation. 7. During the course of hearing, a copy of Ext.A9 disability certificate issued to the appellant has been placed for perusal of this Court. The reasoning given by the Tribunal in paragraph 10 for not accepting the said certificate is that no document or **5** ## **M.A.C.A.No.1493 OF 2007** radiological report was made available to show that the fractures were malunited , as deposed by the doctor, who was examined as P.W.2. It is also conceded by the learned counsel for the appellant that the appellant originally was admitted in the Government Hospital, from where he was referred to West Fort Hospital, Thrissur for better treatment. 8. Ext.A9 certificate has been issued by a doctor of the Medical College, Thrissur, with whom, the documents of the West Fort Hospital were not available; nor any such document is referred to in the certificate issued on 11.08.2005. In the said circumstances, the Tribunal cannot be blamed for reducing the extent of disability. But at the same time, the injuries sustained by the appellant were quite serious involving multiple fractures. We find that the appropriate multiplier as applicable in the case of persons who has crossed the age of 30 years is 16, by virtue of the decision in _**Sarla Verma vs. Delhi Transport Corporation [**_ 2009(6) SCC 121]. After considering the facts and circumstances and also striking a balance, we find it ## **M.A.C.A.No.1493 OF 2007** ## **6** appropriate to re-fix the percentage of disability as 15%. On reworking the compensation for disability based on the modified figures, it comes to **Rs.86,400/** -(3000 x 12 x 16 x 15/100). After deducting the sum of Rs.51840/- awarded by the Tribunal, the balance payable comes to **Rs.34,560/-.** 9. The amount awarded by the Tribunal towards loss of earning also requires to be varied and the amount payable under this head for six months, on the basis of enhanced income, comes to Rs.18000/-, thus resulting in a balance compensation of ## **Rs.6,000/-** 10. The Tribunal has awarded a sum of Rs.25000/- towards pain and suffering. Considering the nature and extent of injuries and the ordeal undergone, we find it appropriate to enhance the same by **Rs.10,000/-** more. Compensation for loss of amenities and enjoyment in life also requires to be enhanced. Hence we award a further sum of **Rs.10,000/** - under the above head. 11. The total balance compensation payable comes to **Rs.60,560/** - (Rupees sixty thousand five hundred and sixty **7** ## **M.A.C.A.No.1493 OF 2007** only) which shall carry interest at the rate of 9% per annum from the date of petition, till realisation. Since insurance policy is admitted, we direct the Insurance company to deposit the entire due amount within one month from the date of receipt of a copy of the judgment. The appeal stands disposed of. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk