Sajeev Chacko v Abdul Latheef, A.R. Anil Kumar (deleted) and M/S Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 16TH DAY OF JANUARY 2014/26TH POUSHA, 1935** ## **MACA.No. 267 of 2008 (D)** **------------------------------------[AGAINST THE AWARD DATED 16-06-2007 IN O.P(M.V).NO. 208/2004 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR]** **.................** ## **APPELLANT/PETITIONER:** **-------------------------------------** **SAJEEV CHACKO, S/O. C.M. CHACKO, CHARUMPOIKAYIL VEEDU, NALKKAVALA, KOTTARA, MEEYANNOOR P.O., KOTTARAKKARA, KOLLAM DISTRICT.** ## **BY ADV. SRI.ANCHAL C.VIJAYAN.** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. A.ABDUL LATHEEF, SHAMIR MANZIL, THATTAMALA P.O., KOLLAM.** - ***2. A.R.ANIL KUMAR, S/O.APPUKUTTAN NAIR,** **KALEELIL PADINJATTETHIL VEEDU, PALAMOOD JUNCTION, CHATHANNOOR, KOLLAM DISTRICT. *(DELETED)** ***RESPONDENT NO.2. IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 11/12/13 IN I.A. NO. 3304/13 IN M.A.C.A. NO.267/08.** **3. M/S. ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, KOLLAM.** **R3 BY ADV. SRI.M.JACOB MURICKAN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## S. SIRI JAGAN & K. RAMAKRISHNAN, JJ. -----------------------------------------------------------------M.A.C.A. No.267 of 2008 --------------------------------------------------------------------Dated this the 16[th] day of January, 2014 ## J U D G M E N T ## K. Ramakrishnan, J The claimant in O.P(M.V.).No.208/2004 on the file of the Motor Accident Claims Tribunal, Punalur, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the 2[nd] respondent, owned by the first respondent and insured with the 3[rd] respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of ₹ 2,00,563/- on various heads as follows: M.A.C.A. No.267 of 2008 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of earning|14, 000| |2|Transport to hospital|1, 000| |3|Extra nourishment|1, 000| |4|Damage to clothing and articles|400| |5|Medical expenses|71, 403| |6|Bystander’s expenses|2, 800| |7|Pain and suffering|10, 000| |8|Loss of earning capacity|99, 960| ||Total|2,00,563| Dissatisfied with the quantum of compensation awarded, the appellant has filed this appeal, seeking enhancement. 2. We have heard the learned counsel for the appellant and counsel for the insurance company. 3. The counsel for the appellant submitted that, the appellant was a cable operator, aged 32 years and getting 10,000/- per month. But the tribunal has arbitrarily₹ fixed his monthly income as 3,500/- per month, ignoring₹ the documentary evidence produced by him. Further, the appellant was treated continuously on various occasions upto 2003 and even now, he is undergoing treatment. But the tribunal has taken only four months for awarding M.A.C.A. No.267 of 2008 3 compensation under the head loss of earning during the period of treatment. The disability certificate shows that, he is having 20% disability, but the tribunal has taken only 14% disability for assessing compensation, which is also not correct. Considering the nature of injury sustained and the treatment undergone, the amount awarded under the head bystanders expenses, transport to hospital, pain and suffering are also on the lower side. No amount was awarded under the head loss of amenities in life, in spite of the fact that, the tribunal has accepted the disability certificate to some extent, for awarding compensation under the head loss of earning capacity. The documents produced will go to show that, he is even now undergoing treatment, as there is discharge of sinus on the foot, for which he is still undergoing treatment. No amount was granted for future medical expenses. So according to the learned counsel for the appellant, the appellant is entitled to enhancement on all heads. M.A.C.A. No.267 of 2008 4 4. On the other hand, the learned counsel for the insurance company submitted that, there is no documentary evidence adduced on the side of the appellant to prove his actual income. So under the circumstances, the tribunal was perfectly justified in notionally fixing his income as 3,500/- per month. There is no evidence to₹ show that he suffered any occupational disability, on account of the injuries sustained and there is nothing on record to show that the disability assessed has affected his earning capacity. Further he is aged 32 years as per **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the proper multiplier applicable to is 16 and not 17, as taken by the tribunal. According to the learned counsel for the insurance company, the total compensation assessed, considering the nature of injuries sustained is just and proper and no interference is called for at the hands of this court. 5. We have considered the rival contentions of M.A.C.A. No.267 of 2008 5 ## both parities in detail. 6. The case of the appellant was that, he was aged 32 years and he is a cable operator and getting ₹ 10,000/- per month. He had produced some documents to show that he had obtained licence from the Panchayath for conducting the business. Except that, he had not produced any other document to prove his income as such. There may be documents with him to prove his income and expenditure, which he has not produced. So considering these circumstances, the tribunal was justified in not accepting the case of the appellant that he was getting ₹ 10,000/- per month and notionally fixing his monthly income as 3,500/- per month, which in the year 2004,₹ cannot be said to be on the lower side. So, we are not inclined to interfere with the monthly income fixed by the tribunal. 7. It is seen from the documents produced that, the appellant sustained following injuries. “Petitioner sustained multiple small abrasions both M.A.C.A. No.267 of 2008 6 upper limbs, abraded contusion on the ® side of chest, crushed lacerated wound on the (L) ankle and adjacent part of foot, type III B compound comminuted fracture 2[nd] , 3[rd] , 4[th] and 5[th] metatarsal with fracture dislocation of tarsal bones with loss of bone fragments, bimalleolar fracture left ankle, fracture ribs ® side and cronic osteomyelitis with discharging sinus on foot”. It is also seen from the documents that, he was treated as inpatient for 56 days on various occasions and continued treatment as out patient till 2003. But there is no evidence to show that during the entire period of treatment, he was not able to attend his work. But considering the nature of injury sustained and period of treatment undergone, four months period taken by the tribunal for assessing compensation under the head loss of earning during the period of treatment appears to be on the lower side and we have taken eight months for that purpose. So, the appellant is entitled to get 28,000/- as compensation under the head₹ loss of earning during the period of treatment instead of ₹ 14,000/- awarded by the tribunal. 8. The disability certificate produced by the appellant shows that he is having 20% disability. It is also M.A.C.A. No.267 of 2008 7 seen from the disability certificate that he developed chronic osteomyelitis with discharging sinus on the foot. The disability also shows that, he suffered fracture with dislocation of tarsal bones with loss of bone fragments. Further he is having difficulty for climbing steps. So, the doctor who issued the disability certificate certified 20% disability. There is nothing to show that the disability assessed is on the higher side. It may be possible for him to do his work. But at the same time, due to the disability, he may not be go outside for doing collection work etc. as before. He will have to depend on somebody for that purpose. So that extent, it will affect his earning capacity also. So, we are inclined to take the entire 20% disability assessed by the doctor for assessing compensation under the head loss of earning capacity. 9. At the same time, there is some force in the submission made by the counsel for the insurance company that the multiplier taken in not correct. As per Sarla M.A.C.A. No.267 of 2008 8 Verma’s case (supra), the proper multiplier applicable to the age group of 32 years, as the appellant was is 16 and not 17. If a re-calculation is made on these outputs, the appellant will be entitled to get ₹1,34,400/(3,500x12x16x20%) instead of 99,960/- awarded by the₹ tribunal under the head loss of earning capacity. (Though, it was termed as compensation for permanent disability by the tribunal). We are inclined to award this amount under that head. The tribunal was awarded only 10,000/- as₹ compensation under the head pain and suffering, considering the nature of injury sustained, period of treatment undergone and also the nature of treatment undergone by him. We feel that, the amount awarded is on the lower side and we enhance the same to 30,000/-.₹ Similarly, the tribunal has awarded only bystanders expenses at the rate of 50/- per day, which is also on the₹ lower side. We enhance it to 5,600/- at the rate of 100/-₹ ₹ per day. We are inclined to enhance the amount awarded M.A.C.A. No.267 of 2008 9 under the head transport to hospital to 3,000/- from₹ ₹1,000/-. Considering the fact that he suffered 20% disability and the nature of disability described in the disability certificate, it is clear that, it may have great impact on his personal life and it will affect his convenience as well. No amount was awarded under the head loss of amenities in life by the tribunal. So we are inclined to award 40,000/- under that head. The documents produced₹ by the appellant shows that, he is even now suffering from discharge of sinus from the injuries spot, for which he will have to undergo treatment in future as well. No amount was awarded under the head for future medical expenses. So we are inclined to award 10,000/- under that head. ₹ 8. Though persuasive arguments were made by the counsel for the appellant to get enhancement under other heads, we are not inclined to enhance any amount under other heads, as the amount awarded by the tribunal under other heads appears to be just and proper. In all, the M.A.C.A. No.267 of 2008 10 appellant will be entitled to get additional compensation of ₹ 1,23,240/-, over and above what has been awarded by the tribunal, which the 3[rd] respondent insurance company is liable to pay with 9% interest per annum from the date of the claim petition, till date of payment, on 1,13,240/-,₹ excluding the future medical expenses awarded by this court. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss