Sathyan v. Jyothi Kumar, Siva Kumar A, and United India Insurance Company Ltd.

M.A.C.A.267/2013 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944** ## **MACA NO. 267 OF 2013** **AGAINST THE ORDER/JUDGMENTOPMV 1522/2004 OF SPECIAL COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR** ## **APPELLANT/PETITIONER:** SATHYAN, S/O.RAMAN, R/A.NANDIKARA HOUSE, ATTUMANA DESOM, CHERPU, THRISSUR DIST BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** 1 JYOTHI KUMAR, R/A.'JYOTHIS',VAIKKARA ROAD, NADAVARAMBA POST, THRISSUR DIST, PIN-680661 2 SIVA KUMAR A,S/O.PRABHAKARAN, R/A.'JYOTHIS',AMARIPADATHU HOUSE, NADAVARAMBU, VELLUKKARA VILLAGE, THRISSUR DIST, PIN-680661, 3 UNITED INDIA ASSURANCE COMPANY LTD, DIVISINAL OFFICE,PARK HOUSE, ROUND NORTH, THRISSUR-680001 BY ADV SMT.P.A.REZIYA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.267/2013 2 ## **C.JAYACHANDRAN, J. ---------------------------------------------M.A.C.A.267 of 2013 --------------------------------------------Dated this the 20[th] day of July, 2022** ## **J U D G M E N T** **1.** The injured in an accident which took place on 27.02.2004, who was the claimant in O.P(C).No.1522 of 2004, is the appellant herein. He impugns the award dated 31.05.2011 of the Motor Accident Claims Tribunal, Thrissur, especially with respect to the quantum of compensation granted under various heads. **2.** Heard Sri.T.C.Suresh Menon, learned counsel for the appellant and Sri.P.A.Reziya, learned counsel for the third respondent/insurance company. Perused the records. **3.** Learned counsel for the appellant submitted that the petitioner was engaged in selling fish at the time of accident and he was earning an income of Rs.6,000/- per 3 ## M.A.C.A.267/2013 month, whereas, the Tribunal has reckoned only Rs.2,500/towards monthly income. It is true that, no document in proof of income was produced before the Tribunal. However, going by the authoritative pronouncement in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [2011 KHC 4675], the notional income fixed for the year 2004 is Rs.4,500/-. Therefore, this Court is inclined to take Rs.4,500/- as the monthly notional income. **4.** The second contention is with respect to the disability found by the Tribunal. As per Ext.A7 certificate issued by the Assistant Professor attached to the Medical College Hospital, Thrissur, 15% disability has been certified. However, the Tribunal took only 9%. According to the learned counsel, the disability indicated in Ext.A7 is liable to be taken. This contention is opposed by the learned counsel appearing for the insurance company. Neither the doctor who issued 4 ## M.A.C.A.267/2013 Ext.A7, nor the petitioner/appellant mounted the box is the argument. Learned counsel also pointed out that the doctor who issued Ext.A7 had not treated the petitioner/appellant and that he had relied only upon Ext.A9 x-ray to arrive at a finding with respect to the disability. **5.** Having heard learned counsel appearing on both sides, this Court is of the view that the disability certified by a Government Doctor attached to the Medical College Hospital need not be doubted for want of examination before the Court. That apart, this Court finds that, Ext.A7 is an exhaustive certificate, taking into account all parameters, including clinical and radiological aspects, to arrive at a finding that the whole body disability is 15%. The contention that he had not treated the appellant/petitioner cannot be sustained. There is no such mandate in law. Per contra, learned counsel for the appellant pointed out that, as per ## M.A.C.A.267/2013 5 Government Order dated 15.05.1997, there is a clear mandate to the effect that the doctor who treated the patient should not issue a disability certificate, in order to ensure neutrality. Having regard to the attendant facts and circumstances, this Court is of the view that, it would be reasonable to take the disability as 12%, instead of 9% reckoned by the Tribunal. **6.** The third contention is with respect to the compensation towards loss of amenities, which was not reckoned at all by the Tribunal. As indicated in Ext.A9, this is a case where the petitioner/appellant suffered a permanent disability to the extent of 15%, which, this court reckoned at 12% as found above. Needless to say that the petitioner is entitled to loss of amenities. Ext.A7 would indicate that the petitioner/appellant had temporary disability for a period of eight months. In the circumstance, this Court estimates compensation on account of loss of amenities at Rs.15,000/-. M.A.C.A.267/2013 6 **7.** Resultantly, M.A.C.A is allowed. The amount of compensation payable to the petitioner/appellant is reworked as indicated in the tabular statement shown below. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|Loss of earning|15,000|27,000 [4500x6]| |2|Transportation|2,000|2,000| |3|Extra Nourishment|3,000|3,000| |4|Bystander Expenses|4,000|4,000| |5|Treatment Expenses|25,055|25,055| |6|Damage to clothing|500|500| |7|Pain and Suffering|30,000|30,000| |8|Disability|45,900|1,10,160<br>[4500x12x17x12/100]| |9|Loss of Earning Power|-|-| |10|Loss of Amenities|-|15,000| M.A.C.A.267/2013 7 Total 1,25,455 2,16,715 Amount enhanced = Rs.2,16,715/ – Rs.1,25,455/ = **Rs.91,260/** **8** . The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 490 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in the order dated 19.01.2022 in C.M.A.No.1/2013. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run ## M.A.C.A.267/2013 **==> picture [7 x 9] intentionally omitted <==** on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. **Sd/-** **C.JAYACHANDRAN JUDGE** Sbna/