Santosh v. Reggie & Sabu.K.R & National Insurance Company

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 ``` ``` MACA NO. 32 OF 2009 ``` ``` AGAINST THE AWARD IN OPMV 380/2006 OF MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL, PALA`** ## **`APPELLANT/PETITIONER:`** ``` SANTHOSH S/O.BALAKRISHNAN, NILAPANAVAYALIL HOUSE, KOODALLOOR KARA, KIDANGOOR VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SMT.A.K.RANI SRIPRAMOJ ABRAHAM SRI.RENDEEP PREM SRI.SHIJU VARGHEESE ``` ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`REGGIE`**| |---|---| ||**`S/O. KUNJUKUTTY,`**| ||**`PAZHUPLACKAL HOUSE, (OTTUPURACKAL),`**| ||**`MARIDOM KARA, KIDANGOOR VILLAGE,`**| ||**`KOTTAYAM DISTRICT.`**| |**`2`**|**`SABU.K.R`**| ||**`S/O. RAGHAVAN`**| ||**`KOLLAPALLIL HOUSE,`**| ||**`KADAPALAMATTOM.P.O, MARIDOM,`**| ||**`KOTTAYAM DISTRICT.`**| |**`3`**|**`NATIONAL INSURANCE COMPANY`**| ||**`PALA, KOTTAYAM DISTRICT.`**| ||**`BY ADVS.`**| ||**`SRI.A.K.HARIDAS`**| ||**`SRI.P.JACOB MATHEW`**| ||**`SRI.MATHEWS JACOB SR.`**| ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.32 OF 2009 ``` ``` 2 ``` ## **CR** ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 assailing award dated 10.07.2008 in O.P.(MV) No.380/2006 on the files of Motor Accidents Claims Tribunal, Pala. The appellant herein is the original petitioner before the Tribunal where the original respondents before the Tribunal are the respondents. 2. Heard the learned counsel for the appellant and the learned counsel appearing for the third respondentInsurance Company. 3. An interesting question emerges in this appeal is; whether 1/3[rd] reduction towards personal expenses of the injured is legally permissible in so far as compensation granted towards disability is concerned? 4. The short facts of the case are as follows: ``` MACA NO.32 OF 2009 ``` ``` 3 ``` The appellant, who alleged to have sustained injuries pursuant to a motor accident occurred at about 6.30 p.m. on 25.09.2005, while he was travelling as a pillion on a motor cycle bearing registration No.KL-5/N-1045, through Kummannoor – Kadaplamattom road, when the motor cycle was dashed by an autorickshaw driven by the first respondent in a rash and negligent manner, had lodged claim petition under Section 166 of the MV Act before the Tribunal, alleging negligence on the part of the first respondent. 5. Respondents 1 and 2 were declared ex parte by the Tribunal. 6. The third respondent Insurance Company filed written statement and disputed the negligence alleged against the first respondent. The quantum of compensation under various heads is also disputed while admitting policy to the autorickshaw bearing registration ``` MACA NO.32 OF 2009 ``` ``` 4 ``` No.KL-5/C-3965. The liability is disputed on the ground that there was no fitness certificate to the vehicle at the time of accident. 7. The Tribunal recorded evidence confined to PW1 and Exts.A1 to A10 on the part of the appellant. Ext.B1, Certified copy of policy was marked on the side of the insurer. After appraising the evidence, the Tribunal granted Rs.78,060/- along with 9% interest. 8. The learned counsel for the appellant would submit that the amount granted under various heads by the Tribunal is insufficient. According to him, eventhough the appellant claimed his income at Rs.4,500/- as an autorickshaw driver, the Tribunal fixed the same at Rs.3,000/-. Further, the Tribunal reduced 1/3[rd] from the disability compensation towards personal expenses and the said procedure adopted by the Tribunal is wrong. Accordingly, he pressed for re-visit of the monthly income ``` MACA NO.32 OF 2009 ``` ``` 5 ``` and disability income without deduction. 9. In this matter, admittedly, no evidence adduced to prove monthly income of the appellant. However, following the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** Rs.4,500/- claimed by the appellant is liable to be accepted and this aspect is not disputed by the learned counsel for the Insurance Company also. Therefore, the monthly income is re-fixed at Rs.4,500/-. 10. The learned counsel for the appellant would urge that the Tribunal accepted only 8% disability though as per Ext.A9 disability certificate dated 21.06.2008 issued by Dr.C.Padmakumar, 15% disability was assessed in relation to the appellant. He submitted that in the disability certificate mal-united fracture with 1.5 inch shortening is stated as the reason for 15% disability and ``` MACA NO.32 OF 2009 ``` ``` 6 ``` therefore, the Tribunal could not be justified in the matter of fixing 8% disability alone. 11. However, the learned counsel for the insurer zealously opposed increase in the percentage of disability mainly on the ground that the treatment records do not justify any shortening as certified in Ext.A9 and also, Ext.A9 was issued by a Doctor, who had not treated the appellant at any point of time. It is submitted that the appellant approached Dr.C.Pradeepkumar for the purpose of getting disability certificate alone. That apart, the Doctor was not examined to prove 15% disability. 12. In this matter, Ext.A6 is the discharge card issued from the Medical College, Hospital, Kottayam. The same would go to show that the appellant sustained Type I open fracture shaft of tibia (right) leg lower third and he was treated at Medical College Hospital for a period of six days from 26.09.2005 to 01.10.2005 by applying A/K POP ``` MACA NO.32 OF 2009 ``` ``` 7 ``` cast. As per Ext.A7, it could be gathered that he was admitted on 01.10.2005 itself at the Government Hospital, Kadaplamattom and continued inpatient treatment for a period upto 02.11.2005. The treatment records would go to show that on removal of A/K POP Slab, fracture united properly. Nothing noted in the treatment records to suggest malunion, shortening or any other infirmities. Thus, it appears that, the treatment records do not suggest any malunion or shortening as certified in Ext.A9. In such a case, examination of the author of Ext.A9 should have been opted by the appellant to prove 15% disability. In view of the matter, 15% disability shown in Ext.A9 cannot be accepted. Therefore, I concur with 8% disability fixed by the Tribunal for the purpose of compensation and I am not inclined to re-visit the same. 13. It is submitted by the learned counsel for the Insurance Company that the multiplier applied by the ``` MACA NO.32 OF 2009 ``` ``` 8 ``` Tribunal as ‘18’ is not correct and the proper multiplier is ‘17’ since the appellant is aged 26 years. This submission not opposed by the other side and the same appears to be correct following the ratio in **Sarla Verma (Smt) & Ors v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)].** Therefore, multiplier is re-fixed as ‘17’. 14. In this matter, the Tribunal granted ‘loss of earnings’ for a period of four months at the rate of Rs.2,000/ - per month. Since the monthly income is refixed, 'loss of earnings' requires re-calculation on the basis of Rs.4,500/- as the monthly income of the appellant. Thus, the appellant is entitled to get Rs.18,000/- towards 'loss earnings'. Accordingly, **Rs.10,000/-** (18,000– 8,000) more is granted under the head 'loss of earnings'. 15. A bare perusal of the award would go to show that the Tribunal reduced 1/3[rd] of the amount assessed towards loss on account of disability as pointed out by the ``` MACA NO.32 OF 2009 ``` ``` 9 ``` learned counsel for the appellant. In fact, in claims filed under Section 166 of the Motor Vehicles Act also, following the schedule appended to Section 163A of the MV Act, 1/3[rd] reduction towards personal expenses is followed only in cases of death on the premise that the said amount would have incurred by the deceased towards maintaining himself had he been alive. It is true that as per the ratio in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** , deduction towards personal expenses of the deceased was re-visited. As per which, in the case of bachelor 50% is the deduction, when the family members are 2 to 3, deduction is 1/3, when the family members are 4 to 5, deduction is ¼ when and the family members are 6, deduction is 1/5. However, in cases of injury the injured is alive and therefore, deduction from the disability income towards personal expenses cannot be justified since the said ``` MACA NO.32 OF 2009 ``` ``` 10 ``` amount is required to survive the injured who is alive. Therefore, such deduction in cases of injury is not legally permissible. Therefore, I have no hesitation to hold that the learned Tribunal lost sight of this fundamental principle regarding assessment of compensation in cases of injury and the Tribunal wrongly reduced 1/3[rd] of the amount granted towards disability income. Therefore, the compensation under the head ‘loss of disability’ also requires recalculation, without any deduction and at the rate of Rs.4,500/- as the monthly income. 4,500 x 12 x 17 x 8/100 = 73,440/- Out of which, Rs.34,560/- was granted by the Tribunal. Thus, **Rs.38,880/-** more is granted under the head 'loss of disability income'. 16. In this case, it is noted that the Tribunal granted Rs.18,000/- under the head ‘pain and suffering’. The same found to be reasonable. However, the Tribunal granted ``` MACA NO.32 OF 2009 ``` ``` 11 ``` Rs.8,000/- only under the head ‘loss of amenities’. Therefore, the same increased by **Rs.10,000/-** more. 17. It is submitted by learned counsel for the insurer that the Tribunal granted recovery right in respect of the award amount in favour of the Insurance Company from the owner of the vehicle, on the finding that there was no fitness certificate to the autorickshaw at the time of accident. On perusal of the award and the records of the Tribunal, submission appears to be true. Nonproduction of fitness certificate by the owner on getting specific direction from the Tribunal is the reason for granting recovery right. Therefore, recovery right in so far as the enhanced sum granted in this appeal also is allowed, where the owner or the driver of the autorickshaw did not appear before this Court even on proper notice and failed to produce the fitness certificate at least before this Court. ``` MACA NO.32 OF 2009 ``` ``` 12 ``` In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.1,36,860/- as compensation out of which Rs.78,060/- was granted by the Tribunal and the balance amount of **Rs.58,800/-** (Rupees fifty eight thousand and eight hundred only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the first and the second respondents jointly and severally, from the date of petition till the date of deposit or realisation. The Insurance Company is directed to deposit the same in the name of the appellant within two months from today and proceed to recover the same thereafter from the owner of the autorickshaw, the second respondent along with interest accrued thereof as per law. ## **Sd/-** ## **A. BADHARUDEEN** ## **JUDGE** nkr