Shaji v. P.G. Stephen & Others (MACA No. 2119 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939** **MACA.No. 2119 of 2012 ()** **------------------------OPMV. NO.2503/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR.** **........** **APPELLANT/PETITIONER:** **---------------------------------------** **SHAJI, AGED 45 YEARS, S/O. MATHAI, PANANAL HOUSE, KUNNATHUPADAM P.O,AMBALLUR VIA, THRISSUR DISTRICT.** **BY ADVS.SRI.C.HARIKUMAR, SMT.C.B.ANUROOPA, SRI.VIPIN VARGHESE.** ## **RESPONDENTS/RESPONDENTS:** **-------------------------------------------------** **1. P.G. STEEPHEN, S/O. GEORGE, VETTIYADAN HOUSE, EDAYATHOOR, MELADOOR P.O., IRINJALAKKUDA-680 121.** **2. DEVADASAN, S/O. KURUMANI, KIZHAKKUMPATTUKARA HOUSE, SOORYAGRAMAM, CHENGALOOR P.O. THRISSUR-680 312.** **3. NEW INDIA ASSURANCE COMPANY LTD, DIVISIONAL OFFICE, THRISSUR -680 001.** **4. BENNY T.P., S/O. PAULSON, THOTTAYAN HOUSE, KODAKKARA, P.O. MATTATHUKUNNU, THRISSUR DISTRICT -680 684.** **MACA.No. 2119 of 2012** **5. UNITED INDIA INSURANCE COMPANY LTD., SREEKUMAR BUILDING , CHALAKKUDY- 680 307.** **R3 BY ADVS. SRI.P.JAYASANKAR, SRI.A.A.ZIYAD RAHMAN. R5 BY ADVS. SRI.A.R.GEORGE,** **SRI.JOHN JOSEPH VETTIKAD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.2119 of 2012 **-----------------------------------------------** Dated this the 17[th] day of July, 2017 ## **J U D G M E N T** ## Ravikumar, J. The injured petitioner comes up in appeal, on being aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Thrissur, as per the judgment and award in O.P.(MV) No.2503/2005. He sustained injuries in a motor vehicle accident occurred on 30.7.2005 at about 3 p.m. involving the motorcycle bearing registration No.KL-8/AD-206 and the Mahindra Tempo bearing registration No.KL-4/H-5162. He was a pillion rider on the motor cycle. In the accident, he sustained compound fracture supra condylar and inter condylar of right femur and also multiple bodily injuries. He remained as an inpatient for a period of 133 days. The injuries resulted in permanent disability. It is in the said circumstances that the appellant moved the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking a compensation of Rs.7,70,000/-. M.A.C.A.No.2119 of 2012 :-2-: 2. The evidence before the Tribunal consisted only of the documentary evidence on the side of the appellant, viz., Exts.A1 to A21. The Tribunal granted a total compensation of Rs.2,15,520/- with interest at the rate of 8% per annum from the date of petition till realisation. 3. We have heard Sri.C.Harikumar, the learned counsel for the appellant and also Sri.A.R.George, the learned counsel appearing for the 3[rd] respondent. 4. After appreciating the evidence on record, the Tribunal arrived at a conclusion that the accident occurred solely due to the negligence of the 2[nd] respondent, the driver of the Mahindra Tempo which was insured with the 3[rd] respondent. Since the offending vehicle was having a valid insurance coverage at the time of the accident, the 3[rd] respondent was held liable to indemnify the insured owner, the 1[st] respondent and consequently a direction to satisfy the award was also issued. Despite such findings and consequential direction, no appeal was preferred by the 3[rd] respondent. The 1[st] respondent has also not filed any appeal. None of them have taken up any cross objection in this appeal. Hence the sole question to be decided in this appeal is whether or not the appellant is entitled to get enhanced M.A.C.A.No.2119 of 2012 :-3-: compensation. 5. The learned counsel appearing for the appellant submitted that the Tribunal has fixed the monthly income for calculation purpose only as Rs.3,000/- and the said erroneous fixation of the monthly income has deprived just compensation to the appellant. The appellant is also having grievance with respect to the assessment of disability by the Tribunal. It is the further submission that the Tribunal has granted only meagre amounts towards compensation for pain and suffering, bystander expenses and expenses towards extra nourishment. It is the further submission that no amount whatsoever was granted by the Tribunal towards compensation for disfigurement. In short, it is the submission that the compensation granted is totally inadequate and therefore an upward modification of the compensation under different heads, is required. The learned counsel for the 3[rd] respondent insurer submitted that a glance at the schedule of compensation given in the impugned judgment would reveal that the appellant was adequately compensated and what was granted by the Tribunal is nothing but just compensation. Hence according to the learned counsel, no appellate interference is called for. M.A.C.A.No.2119 of 2012 :-4-: 6. Having given our anxious consideration to the rival contentions, we are of the view that the impugned award invites interference. The Tribunal fixed the monthly income of the appellant notionally as Rs.3,000/-. In the claim petition, it is averred that the appellant was a coolie worker and he was also doing rubber tapping. At the same time, it is evident that he had failed to adduce evidence to establish his averments regarding occupation and income. When that be so, the Tribunal cannot be said to have erred in fixing the monthly income notionally. Still, we are of the view that fixation of the monthly income as Rs.3,000/- warrants interference, especially taking into account the fact that the accident had occurred in the year 2005 and the appellant was then aged only 38 years. So also, in the light of the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236]** , there is absolutely no justification in fixing the monthly income of the appellant as Rs.3,000/-. We are of the view that it is only proper and just to fix the monthly income as Rs.5,000/- based on the aforesaid aspects and the decision in **Ramachandrappa** 's case (supra) for calculation purpose. Taking note of the fact that the appellant was aged 38 years, the M.A.C.A.No.2119 of 2012 :-5-: multiplier was correctly identified by the Tribunal as '15'. Though the petitioner has grievance regarding the assessment of the permanent disability, we do not find any reason to sustain the same. True that in order to prove that the injury sustained in the accident resulted in permanent disability, the appellant had produced Ext.A17 before the Tribunal. It is certified therein that he has incurred whole body disability of 18%. The doctor who issued Ext.A17 was not examined before the Tribunal. Ext.A17 is also not a disability certificate issued by a duly constituted Medical Board. Still the Tribunal assessed the permanent disability of the appellant as 10% for calculation purpose, evidently considering the physical condition of the petitioner when he was brought before the Tribunal. In such circumstances, we do not propose to interfere with the fixation of the extent of disability by the Tribunal for calculation purpose. Certainly, the petitioner cannot have a further grievance regarding the fixation of the assessment of disability in such circumstances. In short, a re-assessment of the compensation for permanent disability is required only by substituting the re-fixed monthly income. On such re-assessment, the appellant will be entitled to get a compensation of Rs.90,000/- (5,000x12x15x M.A.C.A.No.2119 of 2012 :-6-: 10/100). After deducting the amount granted by the Tribunal viz., Rs.54,000/-, he is entitled to get an amount of Rs. **36,000** /- additionally hereunder. 7. The appellant had been an inpatient for a period of 138 days. The Tribunal granted an amount of Rs.20,000/- towards bystander's expenses and Rs.15,000/- towards extra nourishment. We have already noted the nature of injuries. Paragraph 7 of the impugned judgment would reveal that puss was oozing from the injured area of the appellant. From the evidence on record, the Tribunal itself found that the appellant was laid up continuously for a period of one year and infact he had continued with the treatment for a period of two years. The nature of the injuries and its impact specifically mentioned in the impugned judgment itself would reveal that the appellant had to sustain severe pain owing to the injuries sustained in the accident. All the aforesaid aspects would constrain us to hold that the amount of compensation granted by the Tribunal towards bystanders expenses and extra nourishment require enhancement. We are of the view that towards bystander's expenses, the appellant ought to have been granted an amount at the rate of Rs.200/- per day and towards extra nourishment, he ought to have been granted M.A.C.A.No.2119 of 2012 :-7-: an amount at the rate of Rs.150/- per day. In that view of the matter, for a period of **133 days** , the appellant is entitled to get an additional amount of Rs. **4,950** /- towards 'extra nourishment' and an amount of Rs. **6,600** /- towards 'bystander expenses'. No amount was granted by the Tribunal towards damage to clothing. The nature of the injuries would undoubtedly indicate that the dresses worn by him at the time of accident must have been spoiled. Therefore, we are inclined to grant a sum of Rs. **1,000** /- towards damage to clothing. 8. The detail discussion by the Tribunal in the impugned judgment regarding the nature of the injuries and their impact would constrain us to hold that the appellant is entitled to Rs. **10,000** /- additionally, towards 'pain and suffering'. This is because it is held by the Tribunal that for a period of one year, the appellant was laid up and he was constrained to continue his period of treatment for 2 years. The condition of his right leg, as explained by the Tribunal, would undoubtedly show that it must have resulted in disfigurement. No amount whatsoever has been granted by the Tribunal under that head. We are inclined to grant Rs. **10,000** /- under that head. In the light of the assessment and re-assessment made by M.A.C.A.No.2119 of 2012 :-8-: us, the appellant is entitled to get total compensation of Rs. **68,550** /- (36,000+4,950+6,600+1,000+10,000+10,000). It is awarded. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. Since there is no dispute regarding the liability of the 3[rd] respondent to indemnify the insured owner of the vehicle, the 3[rd] respondent is directed to deposit the said amount along with interest thereon within a period of 2 months from the date of receipt of certified copy of this judgment. No order as to costs. This appeal is accordingly, disposed of. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **JUDGE** ## **ANIL K.NARENDRAN** ami/31.7.17 //True copy// P.A.to Judge