Santosh Kumar v. A.S. Shajahahan, M/S Faba Agencies, Abdul Sathar.N.K., United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939** **MACA.No. 1001 of 2011 ( )** **-------------------------AGAINST THE AWARD IN OPMV 318/2008 of MACT, IRINJALAKUDA DATED 28-04-2011** **-------------------** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **SANTHOSH KUMAR, S/O.RAMAN, VALATHARAYIL HOUSE, P.O.NADAVARAMBU, THRISSUR.** **BY ADVS.SMT.JEENA JOSEPH SRI.G.D.PANICKER** ## **RESPONDENT(S)/RESPONDENTS :-** **--------------------------** **1. A.S.SHAJAHAN, M/S.FABA AGENCIES, HOUSE NO.32/307 IF PONNURUNNY, BYE-PASS ROAD, VYTTILA.P.O., KOCHI, PIN - 682 019.** **2. ABDUL SATHAR.N.K., S/O.HAMEED, NADAPANTHIPARAMBIL HOUSE, P.O.ELOOR,, ERNAKULAM DISTRICT, PIN - 682 011.** **3. UNITED INDIA INSURANCE CO.LTD., CITY BRANCH OFFICER, KOCHI, PIN - 682 017.** **R3 BY ADV. SRI.P.MURALEEDHARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **C.T.RAVIKUMAR, J. & ANIL K. NARENDRAN, J. --------------------------------------M.A.C.A. No.1001 of 2011 ---------------------------------------Dated this the 20[th] day of July 2017** ## **J U D G M E N T** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Irinjalakuda dated 28.4.2011 in O.P. (MV)No.318/2008, a claim petition filed under Sec.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 8.1.2008, while he was travelling in a motorcycle bearing registration No.KL-8/AH-968 as pillion rider. When the motorcycle reached the place of accident, it was hit by a lorry bearing registration No.KL-7/Z-6669 owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the lorry by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.3,16,000/- under different heads. M.A.C.A. No.1001 of 2011 -: 2 :- 2. Before the Tribunal, Exts.A1 to A6 were marked and PW1 was examined on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the lorry by the 2[nd] respondent driver. Since the said vehicle was covered with a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.1,07,380/- and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7% per annum from the date of the petition till realisation 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 the arguments. M.A.C.A. No.1001 of 2011 -: 3 :- 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 already awarded by the Tribunal under different heads. 7. The accident is of the year 2008 and at the time of the accident, the appellant/claimant was aged 48 years. He claimed a monthly income of Rs.5,000/- as a land broker. However, no reliable evidence was placed before the Tribunal to substantiate the said claim. The appellant/claimant has also not chosen to mount the box. In the absence of any reliable evidence, the Tribunal fixed the monthly income notionally at Rs.2,000/-. 8. In **Ramachandrappa** v. **The Manager, Royal Sundaram Alliance Insurance Company Limited** [AIR 2011 SC 2951], the Apex Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 at Rs.4,500/-. Considering the fact that in the instant case, the accident is of the year 2008 and at the time of the accident, the appellant/claimant was an able bodied M.A.C.A. No.1001 of 2011 -: 4 :- person aged 48 years, we deem it appropriate to refix his monthly income at Rs.5,000/-,which is the monthly income claimed in the claim petition for the purpose of assessing compensation under different heads. 9. The injuries sustained by the appellant/claimant, as a result of the accident, is evident from Ext.A3 wound certificate, which reads thus :- “Bleeding from (R) ear, pain swelling right shoulder, fracture (R) clavicle, extensive multiple abrasions with skin loss over (R) forearm extensor aspect 10 x 3 cm, multiple abrasions 15 x 10 cm (R) gluteral region, contusion (R) occipital region 5 x 5 cm, CT-Head-Extradural haematoma (R) temporo parietal region, acute subdural haematoma (R) temporo with comminuted fracture and (R) tempo parietal bone with gross oedema and mass effect.” Ext.A4 reference card issued from the hospital would show that the appellant/claimant had undergone inpatient treatment for a period of 16 days. 10. Ext.A5 is the disability certificate issued by PW1 doctor, who had certified a permanent partial disability of 7%. The Tribunal found that in Ext.A5 certificate, PW1 has not made an objective assessment of the disability sustained by M.A.C.A. No.1001 of 2011 -: 5 :- the appellant/claimant. It was in the said circumstances that the Tribunal scaled down the percentage of disability to 4%, for the purpose of assessing compensation under different heads. In the absence of any vitiating circumstances pointed out by the appellant/claimant in the assessment so made by the Tribunal, we find no reason to interfere with the said finding in the impugned award. Hence, we take the percentage of disability as 4% for the purpose of assessing compensation under different heads. 11. The compensation awarded by the Tribunal under different heads reads thus :- |Sl.<br>No.|Head of Claim|Amount<br>Claimed<br>(Rs.)|Amount<br>Awarded<br>(Rs.)| |---|---|---|---| |1|Loss of Earning (Total)|30,000/-|6,000/-| |2|Medical and miscellaneous<br>expenses|80,000/-|62,800/-| |3|By-stander expenses|5,000/-|1,600/-| |4|Transportation expenses|1,000/-|500/-| |5|Pain and suffering|50,000/-|20,000/-| |6|Loss of dependency|1,00,000/-|12,480/-| |7|Loss of amenities and<br>conveniences, etc.|50,000/-|4,000/-| ||TOTAL|3,16,000/-|**1,07,380/-**| M.A.C.A. No.1001 of 2011 -: 6 :- 12. Towards 'loss of earning' the Tribunal awarded a sum of Rs.6,000/- at the rate of Rs.2,000/- for a period of three months. Considering the fact that the injuries sustained by the appellant/claimant, as borne out from Ext.A3 wound certificate, includes multiple fractures, we deem it appropriate to grant compensation under the head 'loss of earning' for a period of five months. Since we have already refixed the monthly income of the appellant/claimant notionally at Rs.5,000/-, the compensation under this head is re-worked at Rs.25,000/- (5,000 x 5), resulting an additional compensation of **Rs.19,000/-.** 13. Towards 'medical expenses', the Tribunal awarded a sum of Rs.62,800/- accepting the amount covered by Ext.A6 series of medical bills. In the absence of any additional materials, we find no reason to interfere with the said assessment made by the Tribunal. 14. Towards 'bystander expenses', the Tribunal awarded a sum of Rs.1,600/- at the rate of Rs.100/- per day for a period of 16 days. No amount has been awarded under the head 'extra nourishment'. Considering the fact that the M.A.C.A. No.1001 of 2011 -: 7 :- accident is of the year 2008, the appellant/claimant is entitled for Rs.200/- per day towards 'bystander expenses' and Rs.100/- per day towards 'extra nourishment'. In the result, the compensation under the head 'bystander expenses' is refixed at Rs.3,200/- (200 x 16), resulting an additional compensation of **Rs.1,600/-.** Towards 'extra nourishment' the appellant will be entitled for a sum of **Rs.1,600/-** (100 x 16). 15. Towards 'transportation expenses', the Tribunal awarded a sum of Rs.500/- only. Considering the fact that the accident is of the year 2008, we deem it appropriate to refix the compensation under this head at Rs.1,000/-, resulting an additional compensation of **Rs.500/-.** 16. Towards 'pain and suffering', the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we find that the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which warrants no interference. M.A.C.A. No.1001 of 2011 -: 8 :- 17. Towards 'loss of dependency', the Tribunal awarded a sum of Rs.12,480/-, taking 2,000 as the multiplicand, applying the multiplier of 13 applicable to the age group of the appellant/claimant and adopting the percentage of disability as 4%. Since we have already refixed the monthly income of the appellant/claimant as Rs.5,000/-, the compensation under this head is re-worked at Rs.31,200/- (5,000 x 12 x 13 x 4/100), resulting an additional compensation of **Rs.18,720/-.** 18. Towards 'loss of amenities', the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained and the disability that had arisen from, as borne out from Ext.A5 disability certificate, we deem it appropriate to refix the compensation under this head as Rs.15,000/-, resulting an additional compensation of **Rs.11,000/-.** 19. Towards damage to clothing, no amount has been awarded by the Tribunal. Considering the fact that the accident is of the year 2008, we deem it appropriate to grant a sum of **Rs.1,000/-** under this head. M.A.C.A. No.1001 of 2011 -: 9 :- In the result, the appellant/claimant will be entitled for an additional compensation of **Rs.53,420/-** (19,000+1,600+ 1,600+500+18720+11,000+1,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation. Since the insurance coverage of the offending vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. The appeal stands disposed of as above. No order as to costs. **Sd/C.T.RAVIKUMAR JUDGE Sd/ANIL K. NARENDRAN J UDGE** //TRUE COPY// **Sd/ANIL K. NARENDRAN** P.A. TO JUDGE Jvt/25.7.2017