SASI @ SASEENDRAN v. CIPANKAJAKSHAN, MAJEESH MATHEW and The Manager Oriental Insurance Co. Ltd., Palakkad Branch

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943** ## **MACA NO. 2547 OF 2009** **AGAINST THE AWARD DATED 07.03.2008 IN OPMV 1145/2003 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER:** SASI @ SASEENDRAN, AGED 41 YEARS, S/O.RAMAN, KUTTIKATTIL HOUSE, KARAMKAYAM PO,, PALAKKAD DISTRICT. BY ADV SRI.N.KRISHNANKUTTY PILLAI ## **RESPONDENTS/RESPONDENTS:** - 1 C.I.PANKAJAKSHAN, S/O ITTAMAN CHITIYATH HOUSE, NAYARANGADI, KODASSERY PO,, (VIA)CHALAKUDY, THRISSUR DISTRICT. - 2 MAJEESH MATHEW, S/O.M.V.MATHEW MANJAPARAYIL HOUSE, MANGALAM DAM P.O., PALAKKAD DISTRICT. - 3 THE MANAGER ORIENTAL INSURANCE CO.LTD PALAKKAD BRANCH,T.S.N. COMPLEX, RAILWAY STATION, ROAD, PALAKKAD DISTRICT. BY ADV SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No2547-2009 ## **Dated this the 10[th] day of December, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1145/2003 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 that he sustained in an accident on 26.04.2003. It was his case that, on the aforesaid date, while he was travelling in a jeep bearing registration No. KL 8/U 8024 along the Palakkad – Ernkulam National Highway road, due to the rash and negligent driving of the jeep by the second respondent, the jeep hit a lorry and then hit against an electric post. The appellant was thrown out of the jeep 3 MACA No2547-2009 and sustained serious injuries. He was treated at the Aswani Hospital, Thrissur as an inpatient for a period of 33 days. The appellant sustained fracture of humerus left arm, fracture of left ribs 6,7,8,9,10,11 fracture of the psychometric arch left and fracture of the left maxilla. He also had a haematoma of the left frontal area. The jeep was owned by the first respondent and insured with the third respondent. The appellant was a coolie worker by profession and earning a monthly income of Rs.4000/-. Hence the appellant claimed a total compensation of Rs.3,26,000/- from the respondents, but limited the claim to Rs.3,00,000/-. 3. The respondents 1 and 2 had filed written statement admitting the accident, but denied negligence on the part of the second respondent. 4. The third respondent had filed a written statement admitting that the jeep had a valid insurance coverage. However, the third respondent raised a contention that the second respondent did not hold a 4 MACA No2547-2009 valid driving license and a badge. 5. The appellant produced and marked Exhibits A1 to A8 in evidence. The third respondent produced the insurance policy, which was marked as Exhibit B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,79,900/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. N.Krishnankutty Pillai, the learned counsel appearing for the appellant/petitioner and Sri. V.P.K. Panickar, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? 5 MACA No2547-2009 ## **Negligence and liability** 10. Exhibit A2 charge sheet filed by the Alathur police in Crime No.142/2003, substantiates the fact that the accident occurred due to the negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the jeep. The respondents have not let in any evidence to discredit Exhibit A2 charge sheet. Similarly, the third respondent has 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** 11. The appellant had claimed that he was a coolie worker by profession and earning monthly income of Rs.4000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at 6 MACA No2547-2009 Rs.2000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2003, I re-fix the notional monthly income of the appellant at Rs.4000/-. ## **Disability** 14. The appellant had produced Exhibit A5 disability certificate issued by the consultant orthopedic and arthroscopic surgeon of Aswini hospital, Thrissur, where he was treated as an inpatient. The Doctor has assessed the permanent disability of the appellant at 20% due to the painful restriction of the appellant’s left shoulder, loss of motion at the right elbow, pain while 7 MACA No2547-2009 lifting weights and loss of muscle bulk by 1.5 cm. 15. The Tribunal, for the reason that the appellant had not examined the Doctor who issued Exhibit A5 disability certificate, scaled down the permanent disability of the appellant to 8%. 16. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable Supreme Court has categorically held that, if the Tribunal is dissatisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injuredclaimant to a duly constituted Medical Board. Similarly, it is observed ,what needs to be looked into a case of an injury, is the functional disability of the injured-claimant. 17. In the instant case, the Tribunal after accepting and marking Exhibit A5 in evidence, without any demur or protest from the respondents, ought not to have scaled down the percentage of permanent disability assessed by the Doctor in Exhibit A5. If the Tribunal felt any doubt in Exhibit A5, the Tribunal should have 8 MACA No2547-2009 referred the appellant to a duly constituted Medical Board. Without resorting to above method as laid down by the Honourable Supreme Court, the Tribunal ought not to have scaled down the percentage of permanent disability. Therefore, considering the fact that the appellant was a coolie worker by profession and going by the nature of injuries and the permanent disability assessed by the Doctor in Exhibit A5, I fix his functional disability at 21%. ## **Multiplier** 18. The appellant was aged 41 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘14’. ## **Loss due to disability** 19. Taking into account the above mentioned factors, namely, the monthly income of the appellant at 9 ## MACA No2547-2009 Rs.4000/-, his functional disability at 21% and the multiplier at 14, I award the appellant an amount of Rs.1,41,120/- towards ‘loss due to disability’, instead of Rs.28,800/- awarded by the Tribunal. ## **Loss of earnings** 20. The Tribunal has found that the appellant was indisposed for a period of five months. I accept the assessment of the Tribunal in this regard. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I enhance the compensation for loss of earnings by an amount of Rs.10,000/-. ## **- By stander expenses** 21. It is proved and established that the appellant was treated as inpatient for a period of 33 days. The Tribunal has awarded only an amount of Rs.3,300/towards by-stander expenses, which is on the lower side. 22. Taking into account the fact that the accident 10 MACA No2547-2009 occurred in the year 2003 and that the appellant was treated as an inpatient for a period of 33 days, I award him an amount of Rs.250/- per day for a period of 33 days, which works out to Rs.8250/-. ## **Extra nourishment** 23. As the appellant was treated as an inpatient for a period of 33 days, I award him an amount of Rs.150/per day for a period of 33 days towards extra nourishment, which comes to an amount of Rs.4,950/-. ## **Loss of amenities** 24. It is on record that the appellant was treated as an inpatient for a period of 33 day, that he was indisposed for a period of five months and that he has suffered a functional disability of 21%. Therefore, I hold that the appellant is entitled to a further amount of Rs.13,000/- i.e. total amount of Rs.21,000/- under the head ‘loss of amenities’. 25. With respect to other heads of claim, I find that 11 MACA No2547-2009 the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings and 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 given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|10,000|20000| |2|Transportation|1000|1000| |3|By stander expenses|3300|8250| |4|Extra nourishment|0|4950| |5|Medical expenses|108800|108800| |6|Pain and suferings|20000|20000| |7|Loss of amenities|8000|21000| |8|Loss due to disability|28800|1,41,120| ||||| ||Total|**1,79,900**|**3,25,120**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,45,220/- with interest at the rate of 7% per annum 12 ## MACA No2547-2009 from the date of petition till the date of realisation, after deducting interest for a period of 485 days viz. the period of delay in filing the appeal and as ordered by this Court on 20.10.2021 in C.M.Application No. 1/2009, and a cost of Rs.15000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm/10.12.2021