Sasikumar v R @ Sumesh

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 26TH DAY OF SEPTEMBER 2016/4TH ASWINA, 1938 MACA.No. 494 of 2014 () -----------------------AGAINST THE AWARD IN O.P(MV)NO.1387/2005 of ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 13-05-2011 APPELLANT/PETITIONER: --------------------------- SASIKUMAR V R @ SUMESH, S/O.REGHU, VADAKKEKALA HOUSE, KUZHIMATTOM, P.O., VELLOOTHURUTHYU, PANACHIKADU VILLAGE, KOTTAYAM. BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP RESPONDENTS/RESPONDENTS: ---------------------------------- 1. ANEESH ABRAHAM, S/O.ABRAHAM, ATHIYALIL HOUSE, CHERIMALA BHAGOM, TEEKOY P.O., PALA - 686 001. 2. THE UNITED INDIA INSURANCE CO. LTD. KALOOR BRANCH, ERNAKULAM REP. BY THE DIVISIONAL MANAER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, M.C.ROAD, KOTTAYAM - 68 001. R2 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.494 of 2014 -------------------------------Dated 26[th] September, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is preferred by the injured petitioner seeking enhancement of the compensation granted by the Motor Accidents Claims Tribunal, Kottayam in O.P.(M.V)No.1387 of 2005. The petitioner sustained injuries in a motor vehicle accident occurred on 25.5.2004 and it is seeking for compensation thereof that he filed the said claim petition. As against a claim of 3,00,000/- the Tribunal granted a total₹ compensation of 1,52,541/- as per the impugned award. It is in the₹ said circumstances that soliciting enhancement of the quantum of compensation the captioned appeal has been preferred. 2. We have heard Adv.Sri.Sreekumar.G., the learned counsel for the appellant and also Adv.Sri.John Joseph Vettikad, the learned counsel appearing for the 2[nd] respondent. 3. There is no dispute regarding the accident, cause of the accident as the negligence on the part of the first respondent, the M.A.C.A.No.494/2014 2 owner-cum-driver of the Jeep bearing Reg.No.KL-5L-6621, the offending vehicle and also the insurance coverage of the said vehicle. In such circumstances, we are called upon to consider only the question of entitlement of the appellant to get enhanced compensation. 4. The learned counsel for the appellant submitted that the Tribunal had not properly appreciated the fact that the accident occurred in the year 2004 and on the date of the accident the appellant was aged only 26 years, while fixing the monthly income for calculation purpose. The Tribunal fixed the monthly income only as 3,000/-₹ notionally and it is the erroneous fixation of the monthly income that virtually deprived the appellant the just compensation, it is submitted. It is further submitted by the learned counsel that the compensation granted by the Tribunal under the heads pain and sufferings, loss of amenities and compensation for permanent disability are also on the lower side. It is submitted that for the purpose of calculating compensation for permanent disability the Tribunal ignored the percentage of disability assessed as per Ext.A8 disability certificate. Ext.A8 is a medical certificate issued by a duly constituted Medical Board and the percentage of disability is certified therein as 22.62%. Despite the said certification the Tribunal took whole body disability for calculation purpose only as 9%. In the said circumstances, it is M.A.C.A.No.494/2014 3 submitted that an upward modification of the compensation under the aforesaid heads are inevitable. 5. Per contra, the learned counsel for the 2[nd] respondent submitted that a perusal of the schedule of compensation given in the impugned award would reveal that the Tribunal granted just compensation for the injuries sustained by the appellant in the accident and therefore, no appellate interference is called for. 6. Having heard the learned counsel on both sides and going through the impugned award we are of the view that the impugned judgment invites interference. As noticed hereinbefore, the accident occurred on 25.5.2004. The appellant was then driving his autorickshaw along Pala - Erattupetta road. When he reached near the Keezhampara waiting shed, the offending vehicle which is a Jeep dashed against his autorickshaw. He sustained the following injuries in the said accident:- - “1. Comminuted type I compound fracture to both bones of right leg. 2. Fracture on the 5[th] and 6[th] ribs of right side and lacerated wound on the face. 3. Comminuted segmental sub trochantic fracture of right femur.” M.A.C.A.No.494/2014 4 He had been an inpatient from 1.6.2004 to 7.6.2004. Evidently, the injuries sustained in the accident resulted in permanent disability. The said fact is evident from Ext.A8 disability certificate issued by the Medical Board attached to Medical College Hospital, Kottayam. Going by the same, the percentage of permanent disability is 22.62%. The Tribunal, however, took only 9% disability for the purpose of calculating compensation under the head `loss of earning capacity'. The fact that the appellant was an autorickshaw driver by profession cannot be disputed in this case. He has produced Ext.A9 which is the copy of the driving licence. In fact, the fact that he was possessing a driving licence is not at all in dispute. That apart, it is a fact that the very accident had occurred while he was driving the autorickshaw. The accident occurred in the year 2004 and the appellant was then aged only 26 years. In the decision of the Hon'ble Apex Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ in respect of a coolie who met with an accident in the year 2004 the Hon'ble Apex Court fixed the monthly income for calculation purpose as 4500/-.₹ Taking note of all the aforesaid aspects we are of the view that the Tribunal fixed the monthly income so meagrely. In such circumstances, taking into account the aforesaid factors we are inclined to fix the monthly income of the appellant as 5500/- for calculation purpose. A₹ M.A.C.A.No.494/2014 5 perusal of the impugned judgment itself would reveal that even after the accident the appellant got renewed his licence. In such circumstances, it cannot be said that the injuries sustained by him had reduced his functional disability. At the same time, taking note of the fact that the injuries resulted in permanent disability we have no hesitation to hold that the appellant has to be compensated therefor. The Tribunal took only 9% as permanent disability for calculation purpose. Taking note of the injuries referred hereinbefore, which includes comminuted type I compound fracture to both bones of right leg, fracture on the 5[th] and 6[th] ribs of right side and lacerated wound on the face and comminuted segmental sub trochantic fracture of right femur, we are of the view that the Tribunal erred in fixing the percentage of disability taking into account the nature of the injuries and we are of the view that it ought to have been fixed as 15% for calculation purpose. Accordingly, the percentage of disability for calculation purpose is fixed as 15%. The Tribunal adopted the multiplier as `18'. We are of the view that the learned counsel appearing for the 2[nd] respondent is right in contending that the adoption of the multiplier cannot be sustained in the light of the decision of the Hon'ble Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC)).**_ Going by the said decision and also taking note of the age of the appellant on the date of the accident viz., M.A.C.A.No.494/2014 6 26 years, the correct multiplier applicable in this case is `17'. In such circumstances, taking into account the monthly income as also the percentage of disability fixed by us and the correct multiplier viz., `17' the amount of compensation has to be re-assessed. On such reassessment the appellant would be entitled to get a compensation of ₹ 1,68,300/- (5,500 x 12 x 17 x 15/100) under the head `permanent disability'. But, the Tribunal has granted only an amount of 58,320/-₹ under that head. In such circumstances, the appellant would be entitled to get an amount of 1,09,980/- additionally under the said₹ head. It is awarded. In the light of the fixation of monthly income as ₹ 5,500/- the appellant is entitled to get a corresponding increase in the compensation under the head `loss of earning'. The Tribunal took the period of loss of earning as 6½ months. We do not find any reason to interfere with the same. Based on the re-fixed monthly income the appellant would be entitled to get an additional amount of 16,250/-₹ under that head. It is granted. Towards `pain and sufferings' the Tribunal granted 22,000/-. Taking note of the nature of the injuries₹ as revealed from the medical records and expatiated hereinbefore, we are of the view that an amount of 5,000/- has to be granted₹ additionally. Accordingly, it is granted. Taking note of the nature of the injuries and the period of convalescence we are of the view that it is only appropriate to grant 10,000/- additionally for loss of amenities as₹ M.A.C.A.No.494/2014 7 evidently, he must have endured severe pain due to the injuries. Accordingly, it is granted. In the light of the aforesaid discussion, the appellant is entitled to get an additional compensation of 1,41,230/- which is₹ rounded off to 1,41,300/-. It is awarded. The said additional₹ compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The 2[nd] respondent is directed to deposit the said amount along with interest within a period of two months from the date of receipt of copy of this judgment. The parties have to bear their respective costs. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **K.P.JYOTHINDRANATH Judge** TKS