Saneesh v. Kirankumar and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943 MACA NO. 1030 OF 2011** **AGAINST THE AWARD DATED 30.10.2010 IN O.P.(MV) NO.51/2008 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA.** **APPELLANT:** **SANEESH, S/O.VISWAMBARAN, PULLARKATTIL(H), NARAYANAMANGALAM, THRISSUR DISTRICT.** **BY ADVS. SRI.NAGARAJ NARAYANAN SRI.I.J.AUGUSTINE SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI SRI.PRATHAP PILLAI SRI.RAJAN VELLOTH SRI.RAFEEK. V.K. SRI.SAIJO HASSAN SRI.SEBIN THOMAS** ## **RESPONDENTS/RESPONDENTS:** **1 KIRANKUMAR, S/O.RADHAKRISHNAN, 'MAKAYIRAM', CINGOLI P.O., KARTHIKAPALLY, ALAPPUZHA DISTRICT, PIN-690 532.** **2 AJITHKUMAR, S/O.NEELAKANDA PILLAI, 'ANJANAM', THEKKUMMURIKARA, THULAMPARAMNU, HARIPPAD P.O. VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN-690 514.** **3 THE NATIONAL INSURANCE CO.LTD. PUTHUVIDAM,KAYAMKULAM,ALAPPUZHA, PIN-690 502.** **MACA NO.1030 OF 2011** -2- - **4 GOPALAKRISHNA PILLAI, SARITH BHAVAN, KOTTUVALLY P.O., ERNAKULAM DISTRICT, PIN-683 572.** - **5 UNITED INDIA INSURANCE COMPANY LTD., MAIN ROAD, PARAVUR, PIN-691 301.** ## **BY ADV. KIRAN PETER KURIAKOSE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.1030 OF 2011** -3- ## **C.S. DIAS, J. ----------------------------------------------------MACA No.1030 of 2011 ----------------------------------------------------Dated this the 20[th] day of January, 2022** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.51/2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 06.10.2007. It was his case that, on the aforesaid date, while he was riding a motorcycle bearing registration No.KL-7/AD-3102 through the National a car Aloor-Edappally Highway, bearing registration No.KL-4/U-1664, driven by the second respondent in a negligent manner, hit the motorcycle. The petitioner sustained serious injuries and was **MACA NO.1030 OF 2011** -4- treated at the Ernakulam Medical Centre, Palarivattom as an inpatient for a period of 5 days. The appellant suffered an open fracture of both bones of his right forearm. The car was owned by the first respondent and insured by the third respondent. A motorcycle was owned by the fourth respondent and insured with the 5[th] respondent. The appellant was a mason by profession. He was earning a monthly income of Rs.5,000/-. Hence the appellant claimed a compensation of Rs.2,40,000/from the respondents, which claim was limited to Rs.2,00,000/-. 3. The respondents 1, 2 and 4 did not contest the proceeding and were set ex-parte. 4. The third respondent had filed a written statement admitting that the car had a valid insurance policy. 5. The fifth respondent had filed a written statement admitting that the motorcycle had a valid insurance policy. But it was contended that, as per the **MACA NO.1030 OF 2011** -5- final report, it was the driver of the car who was negligent in causing the accident. Therefore, the fifth respondent may be exonerated from any liability. 6. The appellant had produced and marked Exts.A1 to A9 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.55,287/- with interest and cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 9. Heard; Sri. Saijo Hassan, the learned counsel appearing for the appellant/petitioner and Sri. Kiran Peter Kuriakose, the learned counsel appearing for the third respondent insurer. 10. The point that emanates for consideration in this appeal is whether the quantum of compensation **MACA NO.1030 OF 2011** -6- ## awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext.A2 charge sheet laid by the Kochi City Traffic Police in Crime No.6619/2007 proves that the accident occurred due to the negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext.A2. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was a mason by profession and earning a monthly income of Rs.5,000/-. For want of material, the Tribunal fixed the notional monthly income of the appellant at Rs.2,000/-. 13. In **Ramachandrappa v. Manager, Royal** **MACA NO.1030 OF 2011** -7- ## **Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** , the Hon’ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2007, I re-fix the notional monthly income of the appellant at Rs.5,000/- as claimed in the claim petition. ## **Loss of earnings** 15. The Tribunal found that the petitioner was indisposed for a period of three months. I confirm the said finding. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I award him an amount of Rs.15,000/- towards 'loss of earnings', instead of Rs.6,000/- awarded by the Tribunal. ## **Disability** 16. The appellant had produced Ext.A7 disability certificate issued by an Orthopedic Surgeon. As per ## **MACA NO.1030 OF 2011** -8- Ext.A7, it is seen that the appellant has a permanent disability of 9%, as he has difficulty in carrying heavy weights, grip things and also rotate his forearm. As he is mason by profession, the doctor found that the appellant has the above disability as per the Mcbride scale. Without any apparent reason, the Tribunal has scaled down the disability to 3%. 17. In **Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC]** , the Hon’ble Supreme Court has categorically held that in case of an injury claim, if the Tribunal is not satisfied with the disability certificate, the Tribunal has to refer the injured/claimant to a duly constituted medical board. It is also observed that what needs to be looked into is the functional disability of the injured and that if the medical certificate is marked with the consent of the parties, the same can be accepted in evidence. 18. In the instant case, Ext.A7 is seen marked in evidence without any objection or protest from the respondents. The Tribunal has also not referred the **MACA NO.1030 OF 2011** -9- appellant to a duly constituted medical board. Therefore, the scaling down of the disability, without any apparent reason, is erroneous and wrong. Hence, I set aside the finding and fix the functional disability of the appellant at 9% as certified in Ext.A7. ## **Multiplier** 19. The appellant was aged 30 years at the time of accident. In the light of the law laid down in **Sarla Verma and others v. Delhi Transport Corporation [(2009) 6 SCC 121)]** , the relevant multiplier is ‘17’. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.5,000/-, his functional disability at 9% and the multiplier at '17', I award the appellant an amount of Rs.91,800/- towards 'loss due to disability', instead of Rs.12,240/- awarded by the Tribunal. ## **- Bystander expenses and Extra nourishment** 21. It is proved and established that the appellant ## **MACA NO.1030 OF 2011** -10- was treated as inpatient for a period of 5 days. Accordingly, I award an amount of Rs.500/- per day for 5 days towards bystander expenses, which works out to Rs.2,500/- and Rs.250/- per day for a period of 5 days towards extra-nourishment, which works out to Rs.1,250/-. ## **Pain and suffering and loss of amenities** 22. The Tribunal has awarded the appellant an amount of Rs.8,000/- under the head 'pain and suffering' and Rs.3,000/- under the head 'loss of amenities'. I find the amounts to be on the lower side. 23. Taking into consideration the fact that the appellant was treated as inpatient for a period of 5 days, that he was indisposed for a period of three months and that he has suffered a functional disability of 9%, I award the appellant a further amount of Rs.2,000/- and Rs.7,000/-, respectively, under the heads 'pain and suffering' and 'loss of amenities'. 24. With respect to the compensation awarded **MACA NO.1030 OF 2011** -11- under the heads 'transportation expenses' and 'medical expenses', I find the same to be reasonable and just. 25. On a re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given under the table for easy reference. |**Sl.**<br>**No**|**Head of claim**|**Amount awarded**<br>**by**<br>**the**<br>**Tribunal(Rs.)**|**Amount**<br>**modified and**<br>**recalculated by**<br>**this**<br>**Court**<br>**(Rs.)**| |---|---|---|---| |1|Loss of earnings|6,000/-|15,000/-| |2|Transportation expenses|500/-|500/-| |3|Bystander expenses|500/-|2,500/-| |4|Extra nourishment|-|1,250/-| |5|Medical expenses|25,047/-|25,047/-| |6|Pain and sufferings|8,000/-|10,000/-| |7|Loss of amenities|3,000/-|10,000/-| |8|Loss due to disability|12,240/-|91,800/-| ||**Total**|**55,287/-**|**1,56,097/-**| **MACA NO.1030 OF 2011** -12- In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,00,810/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after ‒ deducting the interest for the period from 01.07.2011 ‒ the date on which the appeal was instituted till 29.09.2021 ‒ the date on which the appellant served notice on the Standing Counsel for the third respondent, and a cost of Rs.8,000/-. This Court is constrained to deduct interest for the said period because the appellant had failed to take steps to effect service of notice on the respondents even though the same was ordered to the respondents on 28.07.2011. Therefore, it would a travesty of justice to direct the third respondent to pay interest for a decade when they were unaware of the pendency of the appeal. Thus, the appellant has to be denied interest for the whole period and cannot make unlawful gains due to his own wrong. The third **MACA NO.1030 OF 2011** -13- respondent is ordered to deposit the enhanced compensation with interest as ordered above and cost. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. Sd/- **C.S. DIAS JUDGE** bpr