Sanil @ Sanil Kumar v. N.C. Vincent and Others

MACA NO. 2342 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 11[TH] DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943** **MACA NO. 2342 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 2298/2002 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,TSR** ## **APPELLANT/S:** SANIL @ SANIL KUMAR, S/O.ARUMUGHAN, VADAKKOOTTU HOUSE,ERANELLUR DESOM AND VILLAGE,TALAPPILLY TALUK. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU ## **RESPONDENT/S:** 1 N.C.VINCENT, S/O CHACKKO, BROTHERS RESIDENCY,ANJUMOORTHIMANGALAM,, VADAKKANCHERY,ALATHUR. 2 K.K.BABUSO.K.S.KUMARAN KULANGAARAPARAMBIL HOUSE,, PUTHUKKARA LANE,CHEMBUKKAVU,THRISSUR. 3 MS.ORIENTAL INSURANCE COMPANY LIMITED TSM COMPLEX,RAILWAY STATION ROAD,PALAKKAD. BY ADVS. ALEXY AUGUSTINE GEORGE A.CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2342 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2298/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. 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 sustained to him in an accident on 10.06.2002. It was his case that, on the above said date, while he was traveling pillion on a motor cycle bearing registration No.KL 10H 8714 through Karuvatta, a van bearing registration No.KL-9 K 5365 (van), driven by the 2[nd] respondent in a negligent manner, hit the motor cycle. The appellant sustained multiple injuries including fracture of the left tibia and a head injury. He was treated as an inpatient for a period of 10 days at the West Fort Hospital, Thrissur. The appellant was a goldsmith by profession and was earning a monthly income of Rs.4,000/-. The van was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence the appellant claimed a compensation of Rs.2,00,000/- from the respondents. MACA NO. 2342 OF 2009 3 3. In the same accident, the other inured also filed OP(MV) Nos.2201/2002 and 1647/2003 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1 and 2 filed separate written statements in the claim petitions, inter-alia, contending that there was no negligence on the part of the 2[nd] respondent and that the compensation claimed was excessive. It was stated that, as the van was insured with the 3[rd] respondent, it was the 3[rd] respondent who was to indemnify the 1[st] respondent of his liability arising out of the accident. 5. The 3[rd] respondent had filed separate written statements in all the claim petitions admitting that the van had a valid insurance coverage. The 3[rd] respondent disputed the age, income and occupation of the petitioners in all the claim petitions. The 3[rd] respondent prayed for dismissal of the claim petitions. 6. The Tribunal consolidated and jointly tried all the claim petitions. The petitioner in OP(MV) No.2201/0002 was examined as PW1, who produced and marked Exts.A1 to A19 in evidence. The 3[rd] respondent produced and marked Exts.B1 and MACA NO. 2342 OF 2009 4 ## B2 in evidence. 7. The Tribunal, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.53,900/- with interest and cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.Nagaraj Narayanan, the learned counsel appearing for the appellant/petitioner and Sri. Alexy Augustine, the learned counsel appearing for the 3[rd] respondent/insurer. 10. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 11. Ext.A3 final report filed by the Alathur Police in Crime No.226/2002 proves that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. The respondents have not let in any evidence to discredit Ext.A3 charge sheet. Likewise, the 3[rd] respondent MACA NO. 2342 OF 2009 5 has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was a gold-smith by profession and was earning a monthly income of Rs.4000/-. For want of materials, the Tribunal fixed the monthly income of the appellant notionally at Rs.2000/-. ## 13. In **Ramachandrappa vs. Manager, Royal Sundaram** **Alliance Insurance Company Ltd.** : (2011) 13 SCC 236, the Honourable 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 afore-cited decision and considering the fact that the accident occurred in the year 2002, I refix the notional monthly income of the appellant at Rs.3,500/-. ## **Loss of earnings** 15. It is proved and established as per Ext.A6 discharge MACA NO. 2342 OF 2009 6 summary and Ext.A9 disability certificate that the appellant had suffered a fracture of the tibia and a head injury. In the above circumstances, I hold that he was indisposed for a period of three months. 16. In view of the refixation of the notional monthly income of the appellant at Rs.3,500/-, I award him an amount of Rs.10,500/- towards ‘loss of earnings’, instead of Rs.6,000/awarded by the Tribunal. ## **Disability** 17. The appellant had produced Ext.A9 disability certificate issued by the Assistant Professor in Orthopaedics, Medical College Hospital, Thrissur. 18. As per Ext.A9, the appellant was found to have suffered a permanent disability of 6%. The Tribunal, for the reason that the appellant had not proved Ext.A9 through its author, discarded the disability certificate and did not award him any amount under the head 'loss due to disability'. 19. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has categorically held that in case the Tribunal is dissatisfied with the disability certificate MACA NO. 2342 OF 2009 7 produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. Further, it is also held that if the disability certificate is marked in evidence with the consent of the parties, the same can be accepted in evidence. Further, what needs to be looked into is the functional disability of the injured/claimant. 20. In the instant case, Ext.A9 was produced and marked in evidence, without any objection or protest from the respondents. Even though the Tribunal accepted Ext.A9 , the Tribunal entered into a finding that it was not proved through the proper person. If the Tribunal was dissatisfied with Ext.A9, it was imperative for the Tribunal to have referred the appellant to a Medical Board. Instead, the Tribunal disallowed the claim of the appellant for 'loss due to disability'. 21. In view of the ratio laid down in **Rajkumar** (supra), I accept Ext.A9 in evidence, particularly for the fact that the respondents have not objected to the marking of the document. Taking into consideration the fact that the appellant was a goldsmith by profession and that he had suffered a head injury and he has recurrent giddiness and headache, I assess his MACA NO. 2342 OF 2009 8 'functional disability' at 5%. ## **Multiplier** 22. The appellant was aged 19 years at the time of the accident. In view of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant multiplier to be adopted is “18”. ## **Loss due to disability** 23. Taking into account the above mentioned factors namely, the notional monthly income of the appellant at Rs.3,500/-, his functional disability at 5% and the multiplier at '18', I award him an amount of Rs.37,800/- under the head ‘loss due to disability’. ## **Bystander expenses** 24. The appellant was treated as an inpatient for a period of ten days. The Tribunal has awarded only an amount of Rs.1,000/- towards bystander expenses, which is on the lower side. As the accident had happened in the year 2002, I award the appellant an amount of Rs.250/- per day for a period of ten days which works out to Rs.2,500/- towards 'bystander expenses'. MACA NO. 2342 OF 2009 9 ## **Pain and sufferings and loss of amenities** 25. The Tribunal has awarded an amount of Rs.12,000/under the head pain and suffering and Rs.8,000/- under the head loss of amenities. 26. On a consideration of the fact that the appellant was treated as an inpatient for a period of ten days, that he was indisposed for a period of three months and that he suffered a functional disability of 5%, I award him a further amount of Rs.8,000/- under the head ‘pain and sufferings’ and a further amount of Rs.5,000/- under the head ‘loss of amenities’. 27. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 28. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: MACA NO. 2342 OF 2009 10 **==> picture [448 x 464] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 6,000 10,500<br> 2. Transportation expenses 1,000 1,000<br>3. Clothing 500 500<br>4. Bystander expenses 1,000 2,500<br>5. Extra nourishment 1,000 1,000<br>5. Treatment expenses 16,400 16,400<br>6. Pain and sufferings 12,000 20,000<br>7. Loss of amenities 8,000 13,000<br>8. Compensation for 8,000 0<br>discomfort<br>9 Loss due to disability 0 37,800<br>Total 53,900 1,02,700<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.48,800/- with interest @ 6% per annum from the date of petition till the date of deposit, after deducting interest for the period from 06.10.2009 till 26.10.2021, i.e. the period during which the MACA NO. 2342 OF 2009 **==> picture [12 x 9] intentionally omitted <==** appeal was pending, but the appellant had not taking steps to effect service of notice on the 3[rd] respondent and as ordered by this Court on 27.10.2021, and a cost of Rs.5,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest as stated above and cost, within a period of 60 days from the date of receipt of a copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/11.02.22