Shajimon P.C. v. Saju Joseph, Joy & National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 18TH DAY OF DECEMBER 2014/27TH AGRAHAYANA, 1936** **MACA.No. 2998 of 2014 () -------------------------** **AGAINST THE AWARD IN OPMV 621/2010 ON THE FILE OF THE COURT OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL II(ADDL.DISTRICT JUDGEII), PATHANAMTHITTA DATED 14.8.2014.** ## **APPELLANT/PETITIONER:** **----------------------** **SHAJIMON P.C, S/O.CHACKO, THOTTUCHIRAYIL HOUSE, VENPALA P.O. THIRUVALLA.** **BY ADV. SRI.S.SUBHASH CHAND** ## **RESPONDENTS/RESPONDENTS:** **-------------------------** **1. SAJU JOSEPH S/O.JOSEPH, PLAMOOTTIL HOUSE, CHEMPAKASSERI PADI KUMBANADU P.O.** **2. JOY, KANIYAMUTTOM HOUSE, KOIPPURAM P.O., THIRUVALLA-689547.** **3. NATIONAL INSURANCE CO.LTD., BRANCH PATHANAMTHITTA, REPRESENTED BY ITS MANAGER. R3 BY ADV. SMT.RAJI T.BHASKAR R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.A.C.A. No.2998 of 2014 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 18[th] day of December 2014 ## **JUDGMENT** ## **Asha, J.,** The appellant is the injured in a motor accident which occurred on 31.1.2010. He was knocked down by a Hero Honda Motor cycle bearing Registration No. KL-27/880, while he was walking through the southern side of Thiruvalla-Kozhencherry public road. He sustained very severe injuries and was taken to the Kottekkattu Medicare Hospital immediately. Thereafter he was admitted in Government Hospital, Thiruvalla. 2. Ext.A6 wound certificate, shows that appellant sustained contusion (Lt) leg lower 3[rd] . Ext.A7 discharge card, issued from the Government Hospital, Thiruvalla shows the following diagnosis: - (i). Comminuted fracture lower end of (Lt)tibia. (ii). Fracture lower 1/4[th] of (Lt) Fibula. 3. The appellant was undergoing treatment as inpatient for the period 31.1.2010 to 10.3.2010. Subsequent to this, he was M.A.C.A. No.2998 of 2014 **==> picture [14 x 9] intentionally omitted <==** again admitted in the Taluk Hospital, Thiruvalla on 30.7.2012 and was discharged on 7.8.2012. As per Ext.A9, his disability was assessed by the District Medical Board as 17%. The disability certificate shows the following: _“ He has sustained comminuted fracture lower end of left tibia and fibula following alleged road accident on 31.1.2010. Now the fracture united clinically and radiologically with following disabilities:_ _(i) Chronic infection lower end of fibula (L)._ _(ii)Malunion of tibia and fibula leading to deformity of left lower leg._ _(iii)Implants insitu on left lower fibula._ _(iv)Limitation of dorsiflexion and plantarflexion of left ankle joint._ 4. Claiming that appellant has been working as an agricultural labourer earning an income at the rate of Rs. 7500/per month, he filed the Claim petition before the Motor Accidents Claims Tribunal, Pathanamthitta, seeking compensation to the tune of Rs. 2,25,000/-. The Tribunal awarded a sum of Rs. 2,18,720/-. Learned counsel for the appellant submits that the compensation awarded under various heads is thoroughly inadequate. 5. We heard learned counsel for the Insurance Company also who vehemently opposed the claim for enhancement. M.A.C.A. No.2998 of 2014 **==> picture [14 x 9] intentionally omitted <==** 6. We find that the Tribunal reckoned the monthly income of the appellant as Rs. 4,000/- as against his claim of Rs. 7500/-. As per the decision of the Supreme Court, in _**Ramachadrappa**_ _**v. Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236,**_ the monthly income of persons engaged in unorganised sector can be reckoned as Rs. 4,500/-. It was a case where the accident occurred in the year 2004. Therefore, we reckon the monthly income of the appellant as Rs. 4500/-, for assessing compensation under the head of loss of earnings as well as under the head of permanent disability. The Tribunal has reckoned only a period of two months for loss of earnings. It is seen that the appellant was undergoing treatment as inpatient itself for a period of 39 days in two spells. He had sustained fracture and very severe injuries. In the normal course of circumstances, any person with so many injuries would not have been able to undertake any work at least for a period of four months. Therefore, we fix the duration for loss of earnings as 4 months. Therefore, he will be entitled to a sum of Rs.18000/- (4500x4). Under the head of M.A.C.A. No.2998 of 2014 :4: bystander expenses, the Tribunal has awarded only a sum of Rs. 5800/-@ Rs.200/- per day. We enhance it @ Rs. 300/per day. Thus he will be entitled to a sum of Rs. 11700/(300x39) towards bystander expenses. Towards pain and sufferings, the Tribunal has awarded a sum of Rs. 25,000/- only. Having regard to the nature of injuries sustained and prolonged treatment and sufferings he had undergone and which he continues to suffer, we find it necessary to enhance the same to Rs.40,000/-. The compensation under the head of permanent disability, is also re-assessed, reckoning the income at the rate of Rs. 4500/- per month, applying the multiplier of 17 and reckoning the disability factor at 17%. Thus the appellant will be entitled to a compensation of Rs. 156060/- (4500x12x17x17). Accordingly, we modify the award as follows: |Sl.<br>No.|Heads of claim|Amt.<br>awarde<br>d|Modified<br>award<br>amount|Basis| |---|---|---|---|---| |1|Loss<br>of<br>future<br>earnings|138720<br>(8160x<br>17)||| |2|Loss of earnings|8000|18000|| |3|Transport to hospital|1000|1000|| |4|Extra nourishment|2000|2000|| M.A.C.A. No.2998 of 2014 :5: |5|Damage to clothing<br>and articles|500|500|| |---|---|---|---|---| |6|Others;<br>(a) Medical expenses|1700|1700|| ||(b)Bystanders<br>expenses|7800|11700|| |7|Pain and sufferings|25000|40000|| |8|Permanent disability||156060<br>(4500x12x17X17)|| |9|Loss of amenities|34000|34000|| ||TOTAL|218720|264960|| 7. The Tribunal has attributed 25% of contributory negligence on the part of the appellant. The Tribunal found that the place of occurrence was 2.38 metres inside the tarred portion from the northern road margin and that the accident occurred since the appellant crossed the road abruptly. What we find in Ext A2 scene mahazar is that place of occurrence is 2.38 metres towards the north of the southern margin of the trarred road, where the road is having a width of 7.89 metres. Therefore, there is no basis for the conclusion that the appellant contributed towards the accident. Moreover appellant was a pedestrian. The findings of the Tribunal regarding contributory negligence cannot be accepted, in the light of the entries in Ext A2 mahazar M.A.C.A. No.2998 of 2014 :6: and also in view of the fact that he was a pedestrian. Therefore, we vacate the findings of the Tribunal attributing 25% contributory negligence on the part of appellant. Therefore appellant will be entitled to the entire compensation without any deduction. 8. We are of the view that the interest at the rate of 8.5% p.a. is too low and we fix the interest at the rate of 9% p.a from the date of petition by relying upon the decision of the apex court reported in **Supe Dei(Smt.) & Ors. v. National Insurance Co. Ltd. and Anr.** [(2009)4 SCC 513]. The Insurance Company is directed to deposit the entire amount less the amount already deposited within a period of three months from the date of receipt of a copy of this judgment. 9. The appellants will be entitled to proportionate cost. The counsel for the appellant submitted that the proportionate cost was not allowed. Even though, the Tribunal had allowed it, as it is seen from paragraph 24, the operative portion of the judgment. The reason for the same is the non-production of the certificate. Therefore, three weeks time granted to produce the M.A.C.A. No.2998 of 2014 **==> picture [14 x 9] intentionally omitted <==** certificate. The appeal is allowed as above **.** Sd/- **T.R.RAMACHANDRAN NAIR (JUDGE)** Sd/- AL/- **P.V.ASHA (JUDGE)** True copy **P.A to Judge**