Sekhar Achary v. K. Khalid, Sri Abdul Rahiman and The Branch Manager, National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 28TH DAY OF MARCH 2016/8TH CHAITHRA, 1938 ## MACA.No. 1388 of 2006 ( ) -------------------------- AGAINST THE AWARD IN OPMV 334/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL , KASARAGOD DATED 06-02-2006 ## APPELLANTS/CLAIMANTS: --------------------------------SEKHAR ACHARY, 41 YEARS, SON OF ACHUTHA ACHARY, PACHAMBALLA,, ICHALAMKODU P.O. AND VILLAGE, KASARAGOD TALUK, AND DISTRICT. BY ADV. SMT.R.PADMAKUMARI ## RESPONDENTS/RESPONDENTS: |RESPONDENTS/RESPONDENTS:|RESPONDENTS/RESPONDENTS:| |---|---| |----------------------------------------------|| |1.|K.KHALID, S/O.PODIABBA,| ||ADKA HOUSE, P.O.MANGALAPPADY,| ||KASARAGOD DIST.| |2.|SRI.ABDUL RAHIMAN, S/O.AVVUMMA,| ||R/AT MANNAM KUZHIKUNNU, P.O.UPPALA,| ||KASARAGOD.| |3.|THE BRANCH MANAGER,| ||NATIONAL INSURANCE CO.LTD.,| ||HIGH LANE PLAZA, P.O.KASARAGOD.| ## R3 BY ADV. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN MACA.1388/06** ## **APPELLANT'S ANNEXURES:** ANNEXURE A1: ORIGINAL OF DISCHARGE CARD ISSUED FROM THE MALLYA CITY HOSPITAL. ANNEXURE A2: ORIGINALS OF CASH BILLS FOR AN AMOUNT OF ₹3,457.52 FOR PURCHASING THE MEDICINES. ANNEXURE A3: ORIGINAL HOSPITAL CHARGES-SLIP FOR AN AMOUNT OF ₹7,980/- ISSUED FROM MALLYA CITY HOSPITAL. ANNEXURE A4: ORIGINAL OF BILL DT.15.4.09 ISSUED BY DR.SURESH MALLYA K. FOR AN AMUNT OF ₹4,800/-. ANNEXURE A5: ORIGINAL OF RECEIPT ISSUED BY DR.SANTHOSH KAMATH K. FOR AN AMOUNT OF ₹1,500/- AS HIS PROFESSIONAL CHARGES. ANNEXURE A6: ORIGINAL OF RECEIPT ISSUED BY AHAMED FAYAS, CONSULTANT PHYSIOTHERAPIST FOR AN AMOUNT OF ₹375/AS HIS PROFESSIONAL CHARGES. ANNEXURE A7: ORIGINAL OF CASH PAID VOUCHER GIVEN TO THE APPELLANT. ANNEXURE A8: ORIGINAL OF MEDICAL CERTIFICATE ISSUED TO THE APPELLANT. RESPONDENTS' ANNEXURES : NIL TRUE COPY P.S.TO JUDGE dsn **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.1388 OF 2006** **-------------------------------------------------DATED THIS THE 28[th] DAY OF MARCH, 2016** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J** . Appellant is the claimant in O.P.(MV)No.334/2003 on the file of the Motor Accidents Claims Tribunal, Kasaragod, an application filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation in respect of injuries sustained to the appellant, pursuant to the road traffic accident occurred on 7.9.2002. 2. The factual position revealed from the proceedings is that while the appellant was travelling in his motor cycle bearing Registration No.KA-21/E-3220 as rider and when he reached at B.C. Road an autorickshaw bearing Registration No.KA-14/A-9354 driven, owned and insured by respondents 1 to 3, came in a rash and negligent manner and hit against the motor cycle, causing serious injuries to the appellant, which led to the claim petition filed by him before the Tribunal seeking to compensate the loss. 3. Before the Tribunal, the 3[rd] respondent filed written statement admitting the existence of a valid policy. However, they MACA No.1388/06 -2- contended that the accident occurred due to the negligence on the part of the appellant. It is also contended that the compensation claimed is exorbitant. 4. Before the Tribunal, Exts.A1 to A12 series were marked on the side of the appellant. Ext.X1 certificate issued by the District Hospital, Kanhangad was marked as a court exhibit. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred solely because of the negligence on the part of the driver of the autorickshaw and proceeded to fix the compensation accordingly. 6. Awarding amounts under different heads, total compensation was fixed as 2,02,050/-, which was directed to₹ be satisfied with interest @9% per annum from the date of petition. The 3[rd] respondent being the insurer of the vehicle was directed to deposit the amount of compensation awarded. 7. Inadequacy of the compensation awarded by the Tribunal is the subject matter of this appeal. 8. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the 3[rd] respondent MACA No.1388/06 -3- insurer. 9. The amounts awarded by the Tribunal under different heads as given in paragraph 7 of the Award are as follows : |Loss of earning|:₹|4,500/-| |---|---|---| |Extra nourishment|:|500/-| |Damage to clothing|:|200/-| |Treatment expenses|:|1,11,852/-| |Transport to hospital|:|1,000/-| |Pain and suffering|:|12,000/-| |Permanent disability|:|72,000/-| |||------------| |Total|:|2,02,050/-| |||=======| 10. At the time of accident, the appellant was aged 38 years. He claimed a monthly income of 3,000/- as a carpenter.₹ However, no reliable materials were produced before the Tribunal in order to substantiate the aforesaid contention. The appellant has also not chosen to enter the box. It was in such circumstances, the Tribunal reckoned only a notional monthly income of 1,500/- for awarding compensation under different₹ heads. However, considering the fact that the accident is of the year 2002 and at the time of accident, the appellant was an able bodied person aged 38 years, we deem it appropriate to reckon MACA No.1388/06 -4- ₹3,000/- as the notional monthly income of the appellant. 11. In the accident, the appellant sustained serious injuries as stated in para.4 of the Award, which read as follows: “Patela fracture commuted, Right hand fracture phalanx of ring finger, Fracture of left tibia and Fracture of upper end of right fibula.” The appellant had undergone inpatient treatment for a period of 81 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the Tribunal granted loss of earning for a period of three months, at the rate of 1,500/-₹ per month, thereby awarding a sum of 4,500/- under this head.₹ Since we have already re-fixed the notional monthly income of the appellant as 3,000/-, the compensation under this head will₹ be reckoned as 9,000/-, resulting in an additional compensation₹ of **₹4,500/-** . 12. The appellant produced medical bills to the tune of ₹2,48,028/- towards treatment expenses. After considering the documents on record, the Tribunal arrived at a finding that a sum of 1,11,852/- covered by Ext.A12 series alone would represent₹ MACA No.1388/06 -5- proper compensation towards medical expenses. We find absolutely no grounds to interfere with the said finding made by the Tribunal. 13. Along with I.A.No.1076/2016, the appellant has produced certain additional documents regarding hospitalisation for implant removal for which he was admitted at Mallya City Hospital, Kasaragod on 2.4.2009 and discharged on 15.4.2009. Out of the additional documents so produced, Annexure A3 is a charges-slip dated 15.4.2009 for 7,980/- issued from the Mallya₹ City Hospital, Kasaragod. Annexure A5 is a receipt dated 15.4.2009 towards payment of 1,500/- as professional charges₹ to Dr.K.Santosh Kamath and Annexure A6 is another receipt for payment of 375/- towards professional charges to Dr.Ahamed₹ Fayas. Most of the medical bills produced as Annexure A2 series do not have serial number, date, name of patient, etc. However considering the nature of treatment undergone, we deem it appropriate to grant a lump sum amount of 1,000/- towards₹ medical expenses. Relying on Annexure A4 bill, the appellant claimed a sum of 4,800/- towards consultation fee. Since the₹ MACA No.1388/06 -6- said bill does not bear the signature or seal, the same cannot be accepted. In the result, the appellant will be entitled for an additional amount of **₹10,855/-** (i.e.7980+1500+375+1000) towards treatment expenses in connection with the implant removal undergone in the year 2009. However, it is made clear that this amount will carry interest only from the date of this judgment. 15. Towards pain and suffering, the Tribunal awarded a sum of 12,000/-. As certified in Ext.X1, the injuries sustained in₹ the accident has resulted in permanent disability of 25%. The appellant had also undergone inpatient treatment for a period of 81 days. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as ₹20,000/-, resulting in an additional compensation of **₹8,000/-** . 16. Towards loss of amenities, no compensation has been awarded by the Tribunal. Considering the nature of injuries sustained and the permanent disability of 25% that had arisen therefrom as certified in Ext.X1, we deem it appropriate to grant MACA No.1388/06 -7- a sum of **₹20,000/-** towards compensation for loss of amenities. 17. Towards compensation for permanent disability, the Tribunal awarded a sum of 72,000/-. Since the appellant has₹ crossed the age of 38 years, proper multiplier applicable is '15', as against '16' adopted by the Tribunal, in view of the law laid down by the Apex Court in **Sarla Verma v. Delhi Transport Corporation (2009 (6) SCC 121).** Reckoning the notional monthly income as 3,000/-, percentage of disability as 25% and₹ the multiplier as '15', the compensation under this head is re-worked as 3000x12x15x25/100=₹1,35,000/-. In the result, the appellant will be entitled for an additional amount of **₹63,000/-** towards compensation for permanent disability. 18. The compensation awarded under other heads represent just and reasonable compensation, which requires no enhancement in this appeal. 19. 14. In the result, the appellant will be entitled for an additional compensation of 1,06,355/- in this appeal together₹ with interest @9% per annum from the date of petition till deposit on a sum of **₹95,500/-** and interest @9% per annum MACA No.1388/06 -8- from the date of this judgment on **₹10,855/-** granted towards treatment expenses in connection with implant removal. Since the insurance coverage of the vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the due amount before the Tribunal within a period of one month from the date of receipt of a copy of this judgment. The appeal is disposed of as above. Sd/- ## **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge