Shaji s/o Kunjappan v. Jayachandran, Binu V.J. and The National Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939 MACA.No. 1925 of 2012 () ------------------------- AGAINST THE AWARD IN OPMV 156/2005 of MACT,THRISSUR DATED 16-05-2012 APPELLANT(S): ------------ ## SHAJI S/O.KUNJAPPAN, RESIDING AT VADAKKAN THAZHATH HOUSE, PATTILAMKUZHI, P.O PEECHI, THRISSUR DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD SRI.K.A.ANAS RESPONDENT(S):RESPONDENTS ---------------------------------- 1. JAYACHANDRAN - S/O.THANKAPPAN, RESIDING AT 71/RS- VARANKOVIL ROAD, KUNNATHUR P.O, PERUNDURAI, ERODE, TAMILNADU, PIN 638 052. 2. BINU V.J - S/O.JOHNY, RESIDING AT VELLAKUDIYIL HOUSE, CHENNAIPARA, THRISSUR, PIN 680 653. 3. THE NATIONAL INSURANCE COMPANY LIMITED, KOLLANNUR BUILDING, THRISSUR, PIN 680 001. R3 BY ADV. SMT.SARAH SALVY R3 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.1925 OF 2012 ==========================** Dated this the 30[th] day of August, 2017 ## **JUDGMENT** _Anil K. Narendran, J._ This appeal arises out the award passed by the Motor Accidents Claims Tribunal, Thrissur dated 16.5.2012 in O.P.(MV)No.156 of 2005, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 12.11.2004. At the place of accident, while the appellant/claimant was walking through a public road, he was knocked down by a tractor bearing Reg.No.TN-33/R-6150 owned and driven by respondents 1 and 2 and insured with the third respondent. As a result of the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the **M.A.C.A.1925/2012** 2 tractor by the second respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/under different heads. 2. Before the Tribunal, Exts.A1 to A8 series were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the tractor by the second respondent driver. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.1,00,600/- and directed the third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of petition, i.e., from 22.1.2005, till realisation. 4. Dissatisfied with the quantum of compensation awarded by **M.A.C.A.1925/2012** 3 the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. Heard arguments. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2004 and at the time of the accident, the appellant/claimant was aged 35 years. In the claim petition, he claimed monthly income of Rs.6,000/- as a quarry worker. However, no reliable materials were produced before the Tribunal in order to prove his monthly income at the time of the accident. He has also not chosen to mount the box. It was in such circumstances that the Tribunal fixed the monthly income of the appellant/claimant notionally at Rs.3,000/-. 8. In **Ramachandrappa v. Manager, Royal Sundaram** **Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Apex Court notionally re-fixed the monthly income of a coolie, who met **M.A.C.A.1925/2012** 4 with a motor accident in the year 2004 at Rs.4,500/-. In the instant case, the accident is of the year 2004 and at the time of the accident, the appellant/claimant was an able bodied person aged 35 years. In such circumstances, we deem it appropriate to re-fix his monthly income notionally at Rs.4,500/-, for the purpose of assessing compensation under different heads. 9. The injuries sustained by the appellant/claimant, as borne out from Ext.A3 wound certificate, are as follows:- “Blunt injury on abdomen, fracture of superior and inferior pubic rami left, fracture of 8[th] rib right.” As a result of the accident, he had undergone inpatient treatment for a total period of 22 days in two different spells. Ext.A8 series of medical bills are for a total sum of Rs.37,798/-. Ext.A6 is the disability certificate issued by one Dr.Vijayakumar in which a permanent disability of 16% has been assessed. The appellant has not chosen to prove the disability assessed in Ext.A6 by examining the doctor concerned. However, considering the nature of injuries **M.A.C.A.1925/2012** 5 sustained and the disabilities that have been noted in Ext.A6 disability certificate, the Tribunal took 5% permanent disability for the purpose of assessing compensation under different heads. Since the appellant/claimant has not chosen to prove Ext.A6 disability certificate in accordance with law, we find absolutely no reason to interfere with the finding of the Tribunal in scaling down the percentage of disability as 5%, as against 16% assessed in Ext.A6. 10. The compensation awarded by the Tribunal under different heads reads thus:- |**Head of claim**|**Amount claimed**|**Amount awarded**| |---|---|---| |Loss of earnings|30000/-|9000/-| |Transportation|2500/-|1500/-| |Bystander expenses|6000/-|3300/-| |Pain and suffering|16000/-|12000/-| |Disability||27000/-| |Loss of amenities|16000/-|10000/-| |Medical expenses|25000/-|37798/-| |**Total**||100598<br>**100600/-**| 11. Towards permanent disability, the Tribunal awarded a sum of Rs.27,000/- taking Rs.3,000/- as the monthly income, applying the **M.A.C.A.1925/2012** 6 multiplier of '15' applicable to the age group of the appellant and the percentage of disability as 5%. Since we have already re-fixed the monthly income of the appellant/claimant notionally at Rs.4,500/-, the compensation payable under this head is re-fixed as Rs.40,500/(4,500x12x15x5/100), resulting an additional compensation of **Rs.13,500/-** . 12. Towards loss of earnings, the Tribunal awarded a sum of Rs.9,000/- at the rate of Rs.3,000/- for a period of three months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the Tribunal was justified in granting loss of earning for a period of three months. Since we have already re-fixed the monthly income of the appellant as Rs.4,500/-, the compensation under this head is reworked as Rs.13,500/- (4500x3), resulting an additional compensation of **Rs.4,500/-.** 13. Towards transportation expenses, the Tribunal awarded a sum of Rs.1,500/-. Considering the fact that the accident is of the year **M.A.C.A.1925/2012** 7 2004 and that the appellant/claimant had undergone inpatient treatment for a period of 22 days under two different spells, we deem it appropriate to re-fix the compensation under this head as Rs.2,000/-, resulting additional compensation of **Rs.500/-** . 14. Towards bystander's expenses, the Tribunal awarded a sum of Rs.3,300/-. Under the head extra nourishment, no amount has been awarded. Since the appellant/claimant had undergone inpatient treatment for a period of 22 days and considering the fact that the accident is of the year 2004, he is entitled for compensation under the head bystander's expenses at the rate of Rs.150/- per day and that under the head extra nourishment, at the rate of Rs.100/- per day. Therefore, the appellant has already been adequately compensated by the Tribunal by awarding Rs.3,300/- under the head bystander's expenses. Under the head extra nourishment, the appellant/claimant will be entitled for a sum of **Rs.2,200/-** (100x22). 15. Towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. Considering the nature of the injuries sustained and the **M.A.C.A.1925/2012** 8 treatment the appellant had undergone, as borne out from the medical records, we deem it appropriate to grant a sum of Rs.15,000/-, resulting additional compensation of **Rs.3,000/-** . 16. Towards loss of amenities, the Tribunal awarded a sum of Rs.10,000/-. Though in Ext.A6 disability certificate, the percentage of disability has been certified as 16%, the appellant has not chosen to prove the said document by examining the doctor concerned. It was in such circumstances that the Tribunal took the percentage of disability as 5%. However, a perusal of Ext.A6 disability certificate would show that, as a result of the injuries sustained in the accident, the appellant is having various disabilities. Considering the nature of disabilities as reflected from Ext.A6 disability certificate, we deem it appropriate to re-fix the compensation under this head as Rs.16,000/-, resulting additional compensation of **Rs.6,000/-** 17. Towards medical expenses, the Tribunal awarded a sum of Rs.37,798/- covered by Ext.A8 series of medical bills. The compensation awarded by the Tribunal represents just and reasonable **M.A.C.A.1925/2012** 9 compensation, which requires no enhancement in this appeal. 18. In the result, the appellant/claimant will be entitled for an additional compensation of **Rs.29,700/-** (13,500+4,500+500+ 2,200+3,000+6,000) in this appeal which will carry interest at the rate of 8% per annum from the date of the petition till realisation. 19. Since the insurance coverage of the vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.1925/2012** 10 **M.A.C.A.1925/2012** 11 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1925/2012** 12