Sajeev @ Saji Issac v. Ranju and others

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 7TH DAY OF AUGUST 2017/16TH SRAVANA, 1939 MACA.No. 2439 of 2012 () ------------------------AGAINST THE AWARD IN O.P(MV) 186/2006 of MACT, MUVATTUPUZHA DATED 05-03-2012 APPELLANT/PETITIONER: --------------------------- SAJEEV @ SAJI ISSAC, AGED 46, NEDUMPILLIL HOUSE, NELLIMATTAM KARA, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.DIPU JAMES SRI.K.P.UNNIKRISHNAN (ELOOR) ## RESPONDENTS/RESPONDENTS: ----------------------------------- ## 1. RANJU, S/O.FRANCIS,PALLIPARAMBIL HOUSE,PADAMUGAM KARA, MURAKKASSERY VILLAGE,IDUKKI DISTRICT,PIN-685602. 2. JOMLAL TITUS, PERUMBILICHIRAH HOUSE,CHELAD,KARINGAZHA, KOTHAMANGALAM-686691. ## 3. TOM, S/O.MATHEW,MAHANEEIYAM BHAVAN, 33/1, KATTAPPANA.P.O,IDUKKI DISTRICT-685508. 4. THE MANAGER, ORIENTAL INSURANCE CO.LTD,ELENJICAL PLAZA, CHURCH VIEW JUNCTION,KOTHAMANGALAM-686691. R4 BY ADV. SRI.RAJESH THOMAS R4 BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- M.A.C.A.No.2439 of 2012 -------------------------------Dated 7th August, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Muvattupuzha dated 5.3.2012 in O.P.(MV) No.186 of 2006, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 1.1.2006, while he was riding a motorcycle bearing Reg.No.KCE3692. At the place of accident, it was hit by another motorcycle bearing Reg.No.KL-7/P-2149, ridden by the first respondent. The second respondent is the owner of the said motorcycle, the third respondent is its registered owner and the fourth respondent is its insurer. Alleging that the accident occurred due to the rash and negligent riding of the motorcycle by the first respondent rider, claim petition was filed before the Tribunal claiming a total compensation of ₹2,97,500/-, under different heads. 2. Before the Tribunal, Exts.A1 to A15 were marked on the side of the appellant/claimant and the doctor who issued Ext.A12 disability M.A.C.A.No.2439/2012 2 certificate was examined as PW1. On the side of the respondents a copy of the insurance policy of the offending motorcycle was marked as Ext.B1. The respondents have not chosen to adduce any oral evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at the conclusion that the accident occurred due to the rash and negligent riding of the motorcycle bearing Reg.No.KL-7/P2149 by the first respondent rider. Since the said vehicle was covered by a valid insurance policy at the time of accident, the fourth respondent insurer was held liable to indemnify the second respondent owner and the third respondent registered owner. Under different heads, the Tribunal awarded a total compensation of 1,99,721/- and₹ directed the fourth 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 the date of deposit 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 for the fourth M.A.C.A.No.2439/2012 3 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 under different heads. 7. The accident is of the year 2006 and at the time of accident the appellant was aged 40 years. He claimed a monthly income of ₹5,000/- as the Managing Partner of the Hydro Power Construction company. However, no reliable materials were produced before the Tribunal to prove his monthly income. The appellant has also not chosen to mount the box. It was in the said circumstances that the Tribunal fixed the monthly income of the appellant notionally at ₹3,000/- for the purpose of assessing compensation under different heads. 8. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ the Apex Court re-fixed the notional monthly income of a coolie who met with a motor accident in the year 2004 at 4,500/-. In the instant case,₹ the accident is of the year 2006 and at the time of the accident the appellant was an able bodied person aged 40 years. Considering the economic conditions prevailing as on the date of accident, we find M.A.C.A.No.2439/2012 4 no reason to disbelieve the version of the appellant that he was earning a monthly income of 5,000/- as on the date of the accident.₹ Therefore, we find it appropriate to assess the compensation payable under different heads fixing the monthly income of the appellant notionally at 5,000/-. ₹ 9. The injuries sustained by the appellant, as borne out from Ext.A3 wound certificate reads thus:- “Multiple abrasion left knee, left big toe, right little toe, lacerated wound (tendon exposed) right dorsum foot and lacerated wound upper half right leg.” Ext.A7 treatment certificate would show that on 14.1.2006 he was admitted at MBMM hospital, Kothamangalam with infected open fracture right 5[th] metatarsal, laceration dorsum of right foot with sloughing. He was treated with wound care, antibiotics and plaster immobilisation. Ext.A9 discharge summary issued from MOSC Medical College Hospital, Kolenchery would show that CT scan of head showed right temporo parietal intracerebral hemorrhage, right occipital bone fracture with small epidural hematoma. X-ray of right foot showed open fracture right foot shaft and 5[th] metatarsal. Ext.A10 discharge summary issued from the said hospital would show that the appellant was again admitted in that hospital on 7.11.2006 with complaints of one episode M.A.C.A.No.2439/2012 5 of seizure and loss of consciousness and was discharged on 811.2006. Ext.A11 is the certificate issued by the MOSC Medical College Hospital, Kolenchery which would evidence that, the appellant, after a lapse of two years and 8 months of post trauma, is still having left hemianopia (loss of vision one half of visual field), memory disturbance and behavioural changes. He is still getting recurrent episodes of seizures and is on regular outpatient treatment. 10. In Ext.A12 disability certificate issued by PW1 doctor the percentage of disability has been certified as 49%. PW1 deposed that the appellant is having permanent partial loss of sight. But, PW1 admitted that he had assessed only the neurological impairment and the disability thereof could have been assessed by the Medical Board constituted for that purpose. Therefore, the Tribunal found that 49% neurological impairment noted in Ext.A12 disability certificate issued by PW1 doctor cannot be equated to permanent disability or loss of earning power. Though there was absolutely no material on record for fixing actual loss of earning power on account of the neurological impairment noted in Ext.A12, the Tribunal fixed the loss of earning power as 20% for the purpose of assessing compensation under different heads. The assessment so made by the Tribunal warrants no M.A.C.A.No.2439/2012 6 interference in this appeal, in the absence of any vitiating circumstances pointed out by the learned counsel for the appellant. 11. The compensation awarded by the Tribunal under different heads reads thus:- |ds reads thus:-||| |---|---|---| |**_Head_**|**_Amount_**<br>**_claimed_**|**_Amount_**<br>**_awarded._**| |Compensation for loss of earning|₹50,000/-|₹12,000/-| |General expenses: Transport to hospital,<br>damage to clothe, extra nourishment,<br>attendance expenses etc.|₹37,500/-|₹5,000/-| |Medical expenses|₹60,000/-|₹46,721/-| |Pain and suffering|₹50,000/-|₹16,000/-| |Loss of amenities|₹50,000/-|₹12,000/-| |Compensation for loss of earning power<br>3000x12x20x15/100|₹30,000/-|₹12,000/-| |Total|₹2,97,500/-|₹1,99,721/-| 12. Towards loss of earning, the Tribunal awarded a sum of ₹12,000/-, at the rate of 3,000/- for a period of four months.₹ Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we deem it appropriate to grant loss of earning for a period of five months as against the four months granted by the Tribunal. Since we have already re-fixed the monthly income of the appellant at ₹5,000/-, the compensation under this head is reworked as 25,000/- (5000x5),₹ M.A.C.A.No.2439/2012 7 resulting an additional compensation of **₹ 13,000/-** . 13. Under the head `general expenses', the Tribunal awarded a sum of 5,000/-. Considering the fact that the appellant had undergone₹ inpatient treatment for a total period of 12 days under different spells, he is entitled for a sum of 2,000/- as transportation expenses. Since₹ the accident is of the year 2006, he is entitled for a sum of 1,800/-₹ (12x150) towards bystanders expenses and a further sum of 1,200/-₹ (12x100) towards extra nourishment. He is also entitled for a sum of ₹1,000/- towards damage to clothing. Therefore, the compensation under the head general expenses is re-fixed as 6,000/-, resulting an₹ additional compensation of **₹ 1,000/-** . 14. The Tribunal awarded 46,721/- towards medical expenses,₹ covered by Ext.A15 series of medical bills. In the absence of any further materials, the appellant is not entitled for any additional compensation under this head. 15. Towards pain and suffering, the Tribunal awarded a sum of ₹16,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we deem it appropriate to re-fix the compensation under this head as 20,000/-, resulting an additional compensation of ₹ **₹ 4,000/-** . M.A.C.A.No.2439/2012 8 16. Towards loss of amenities, the Tribunal awarded a sum of ₹12,000/-. Considering the nature of injuries sustained and the disability that had arisen therefrom, as certified in Ext.A12, we deem it appropriate to re-fix the compensation under this head as 20,000/-,₹ resulting an additional compensation of **8,000/-₹** . 17. Towards disability, the Tribunal awarded a sum of ₹1,08,000/-, taking the monthly income as 3,000/-, applying the₹ multiplier of `15' and the percentage of disability as 20%. Since the appellant was aged 40 years as on the date of the 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 only `14'. Since we have already re-fixed the monthly income of the appellant/claimant notionally at 5,000/-, applying the multiplier of `14'₹ and percentage of disability as 20%, the compensation under this head is re-worked as ₹1,68,000/(5,000x12x14x20/100), resulting an additional compensation of **₹ 60,000/-** . 18. In the result, the appellant/claimant will be entitled for an additional compensation of **₹ 86,000/-** (13,000+1,000+4,000+8,000+ 60,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. M.A.C.A.No.2439/2012 9 19. Since the insurance coverage of the offending vehicle is not in dispute, the fourth respondent insurer shall deposit the additional compensation awarded in this appeal 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