Sangameswaralayar v. Premnath and ors

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 ``` ## `MACA NO. 2796 OF 2012` ``` AGAINST THE AWARD DATED 20.09.2012 IN OP(MV)NO.304/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA ``` ## `APPELLANT/ PETITIONER:` ``` SANGAMESWARALAYAR, S/O.VEERA RAGHAVAIDYAR, PULIKUTTYMADAM HOUSE, CHERUMUCK TEMPLE ROAD, MANAVALACHERRY VILLAGE, IRINJALAKUDA 680 121. ``` ``` BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1PREMNATH, S/O.K.G.MENON, PRASANTHI, KUDAPPUZHA DESAM, POTTA VILLAGE, 680 307. ``` ``` 2THE ORIENTAL INSURANCE CO.LTD BRANCH OFFICE CITY HEIGHTS BUILDINGS, CHALAKUDY, 680 307. ``` - `3 KUNJIPPALLU` - `4 ROSY WO.KUNJIPPALU.` - `5 MARY D/O.KUNHIPPALU.` ``` 6ALIS D/O.KUNJIPPALU. (RESPONDENTS 3 TO 6 RESIDING AT EDATHUKKARAN VEEDU, ASHTAMICHIRA P.O) 680 731. ``` M.A.C.A.No.2796/2012 -:2:- ``` BY ADVS.SMT.K.S.SANTHI SRI.K.SUNILKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2796/2012 -:3:- Dated this the 1[st] day of February,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P(MV) No.304/2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries he sustained in an accident on 07.04.2001. It was his case that, on the above said day, while he was riding his motorcycle bearing registration No.KLC-9280 through the Pulikuttimadam road, another motorcycle bearing registration No.KRH-3094 (offending motorcycle), driven by the second respondent in a rash and negligent manner, hit his motorcycle. The appellant sustained serious injuries, including a fracture of his left leg. He was treated at the Metropolitan Hospital, Thrissur, as an inpatient for a period of 22 days. The M.A.C.A.No.2796/2012 -:4:- offending motorcycle was owned by the first respondent and insured with the third respondent. The appellant was a bus conductor by profession and earning a monthly income of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.1,87,500/from the respondents. 3. Pending the claim petition, the first respondent died. His legal representatives were impleaded as respondents 4 to 7. 4. The second respondent had filed a written statement refuting the allegations in the claim petition. It was contended that as the offending motorcycle was insured with the third respondent, the third respondent was liable to pay the compensation. 5. The third respondent had filed a separate written statement, also denying the allegations in the claim petition. The third respondent contended that the compensation claimed was excessive. 6. The appellant had produced and marked M.A.C.A.No.2796/2012 -:5:- Exts.A1 to A9 in evidence. The third respondent produced the insurance policy, which was marked as Ext.B1. 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.49,473/- with interest and cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. T.C.Suresh Menon, the learned counsel appearing for the appellant/petitioner and Smt. K.S. Santhi, the learned counsel appearing for the third respondent -insurer. 10. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? M.A.C.A.No.2796/2012 -:6:- ## **Negligence and liability:** 11. Ext.A5 chargesheet filed by the Irinjalakuda police in Crime No.296/2001 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the offending motorcycle. The respondents have not let in any evidence to discredit Ext.A5 chargesheet. 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 bus conductor by profession and earning a monthly income of Rs.5,000/-. For the want of material, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. Going by the law laid down in M.A.C.A.No.2796/2012 -:7:- **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], I find that the notional monthly income fixed by the Tribunal to be reasonable and just. ## **Loss of earnings:** 13. As per Ext. A8 disability certificate, the appellant was using crutches for a period of four months. Being a bus conductor by profession, he was unable to carry on his avocation with crutches. Thus, I hold that he was indisposed for a period of four months. 14. Consequentially, I award the appellant a further amount of **Rs.9,000/-** under the head 'loss of earnings'. ## **Disability:** 15. The appellant had produced Ext.A8 disability certificate issued by the Assistant Professor of Orthopedics, Medical College Hospital, Thrissur. The Doctor had certified that the appellant has mal-united M.A.C.A.No.2796/2012 -:8:- fracture of his tibia upper end involving articular surface of knee, united fracture of the medial malleolus with pain and stiffness of his knee and ankle. Hence, the appellant has a permanent disability at 12%. 16. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, in the case of injury claims, what needs to be looked into is the functional disability of the injured/claimant. It is also held that, if the Tribunal is not satisfied with the disability certificate produced before it, it is imperative for the Tribunal to refer the injured/claimant to a duly constituted Medical Board. It is further held that, if the disability certificate is marked in evidence with the consent of all parties, the same can be accepted in evidence. 17. In the instant case, the Tribunal after marking Ext.A8 in evidence with the consent of the parties has perfunctorily rejected Ext.A8. The M.A.C.A.No.2796/2012 -:9:- Tribunal has also failed to refer the appellant to a Medical Board. The course adopted by the Tribunal is in egregious violation of the law laid down in **Rajkumar** (supra). In the above situation, especially taking note that Ext.A8 was marked with the consent of the parties, I accept Ext.A8 on record. 18. On a scrutiny of Ext.A8, it is seen that the appellant has a mal-united fracture of the tibia upper end which has impaired him to the extent of 5%, stiffness of his knee and ankle of 5% and a united fracture of the malleolus with pain of 2%. Taking note of the above disabilities and the fact that the appellant was a conductor by profession, I fix his functional disability at 7%. ## **Multiplier:** 19. The appellant was aged 53 years at the time of the accident. In the light of the law laid down in **Sarla Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier to be M.A.C.A.No.2796/2012 -:10:- adopted is ‘11’. ## **Loss due to disability:** 20. On a consideration of the above mentioned factors, namely; the notional monthly income of the petitioner at Rs.3,000/-, his ‘functional disability’ at 7% and the ‘multiplier’ at ‘11’, I award the appellant an amount of **Rs.27,720/-** towards ‘loss due to disability’. ## **Bystander expenses and Extra nourishment:** 21. The Tribunal has awarded an amount of Rs.300/- each under the heads ‘bystander expenses’ and ‘extra nourishment’. This according to me, is too meager. 22. In view of the fact that the appellant was indisposed for a period of 22 days, I award him Rs.250/- per day for a period of 22 days towards ‘bystander expenses’ which works out to **Rs.5,500/-** and Rs.150/- per day for a period of 22 days for ‘extra nourishment’ which comes to **Rs.3,300/-** . M.A.C.A.No.2796/2012 -:11:- ## **Pain and sufferings:** 23. The appellant had claimed an amount of Rs.20,000/- as compensation for ‘pain and sufferings’. The Tribunal had awarded only an amount of Rs.10,000/- under the said head. 24. On a consideration of the fact that the appellant had sustained a fracture that he was indisposed for a period of four months, and he has suffered a functional disability of 7%, I award him a further amount of Rs.10,000/- under the head ‘pain and sufferings’. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and M.A.C.A.No.2796/2012 -:12:- ## given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|3,000|12,000| |2|Transport|500|500| |3|Bystander<br>expenses|300|5,500| |4|Medical expenses|30,373|30,373| |5|Pain and sufferings|10,000|20,000| |6|Loss of amenities|5,000|5,000| |7|Extra nourishment|300|3,300| |8|Loss due to<br>disability|Nil|27,720| ||**TOTAL**|**49,473**|**1,04,393**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.54,920/-** with interest on the said amount at the rate of 7.5% per annum from the date of petition till the date of deposit and a cost of Rs.10,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the M.A.C.A.No.2796/2012 -:13:- Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. 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** DST/01.02.22 //True copy/ P.A.To Judge