SHAJU v. SAJEEVAN and UNITED INDIA INSURANCE CO. LTD. and E.G. SASI EDATHADATH HOUSE AVINISSERY, THRISSUR

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 ``` ## **`MACA NO. 1650 OF 2011`** ``` OPMV 3225/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` SHAJU, S/O. ANTONY CHERUPAKARAN HOUSE, SWATHI NAGAR, P.O.OLLUR,, THRISSUR DISTRICT. ``` ``` BY ADV SRI.P.V.CHANDRA MOHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SAJEEVAN, S/O. ARAVINDAKSHAN, KALARIKKAL HOUSE, MARATHAKKARA.P.O.,, THRISSUR DISTRICT.` - `2 UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, PARK HOUSE,, ROUND NORTH, THRISSUR.` - `3 E.G. SASI EDATHADATH HOUSE AVINISSERY, THRISSUR. BY ADVS. SRI.JOHN JOSEPH VETTIKKAD SMT.RAJI T.BHASKAR` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1650/2011 : 2 : ## JUDGMENT The appellant is the petitioner in OP(MV) No.3225/2004 on the files of the Motor Accidents Claims Tribunal, Thrissur. 2. The claim petition was submitted by the petitioner seeking compensation for the injuries sustained to him in a motor accident that occurred on 25.06.2004. According to him, the accident occurred when he was about to get down from the tempo van bearing registration No.KL-08/N-108, the driver of the said vehicle, moved the vehicle forward, and thereupon, he fell down and sustained injuries. The vehicle was owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent at the relevant time. The 4[th] respondent was the person who was in possession of the vehicle at the relevant time. The appellant was a seller of sawdust with a monthly income of Rs.4,500/- and he was aged 35 years at the time of the accident. The claim was submitted seeking a total compensation of Rs.1,53,500/-. 3. The 1[st] and 2[nd] respondents remained ex-parte. The M.A.C.A. No.1650/2011 : 3 : 3[rd] respondent filed a written statement admitting the coverage of policy in respect of the vehicle, but the liability was denied. The 4[th] respondent filed a written statement denying any relationship with the goods vehicle. According to him, he had already sold the said vehicle. 4. The evidence in this case consists of Exts.A1 to A8 from the side of the appellant, and Ext.B1 was marked from the side of the respondents. After examining the materials placed on record, the Tribunal concluded that the accident occurred due to the negligence of the driver of the tempo van. Accordingly, being the insurer of the said vehicle, the 3[rd] respondent herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.43,000/- and the 3[rd] respondent was directed to deposit the said amount along with 8% interest per annum from the date of petition till realisation with proportionate costs. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri. P.V. Chandramohan, the learned counsel appearing for the appellant and Smt. Raji T. Bhaskar, the learned counsel appearing for the 3[rd] respondent insurance company. M.A.C.A. No.1650/2011 : 4 : 6. The main contest on the part of the appellant is relating to the quantum of compensation. It was pointed out that the compensation granted for disability was extremely on the lower side. It was pointed out that the monthly income claimed was Rs.4,500/- but only Rs.2,500/- was taken by the Tribunal. Even though a disability certificate was produced as Ext.A6, showing the percentage of disability as 15%, the same was not accepted, and the disability the tribunal took for computing the compensation was 2%. After carefully going through the materials placed on record, I find some force in the contentions put forward by the learned counsel for the appellant in this case. It is true that even though they claimed to be engaged in selling saw dust, nothing was produced to establish the same. 7. However, in the light of the observations made by the Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], even in the absence of any evidence, the monthly income for an ordinary worker can be fixed as Rs.4500/- in respect of an accident occurred in the year 2004. In this case, the accident occurred in the year 2004 and therefore, even in the absence of M.A.C.A. No.1650/2011 : 5 : any evidence, the monthly income of Rs.4,500/- as claimed by the appellant can be accepted since it is reasonable. When it comes to the question of disability, the tribunal discussed the impact of the injuries on the physical condition of the appellant in paragraph 12 of the award, and it was observed that consequent to the injuries, the appellant has sensory inattention, loss of memory, poor registration, language abnormality in the form of anomia, poor comprehension and reduced ability to talk to the point. He had occasional violent behaviour also. Indeed, the Doctor was not examined to prove the said certificate. But the contents of the said certificate were not seriously disputed. It is also a relevant fact to note that the certificate was issued by the Associate Professor in Neurosurgery, Medical College Hospital, Thrissur. Going through the materials placed on record, I am unable to find any discrepancy that warrants the rejection of the said certificate in its entirety. It is a well settled position of law, in the absence of any such discrepancy, the tribunal should not reject the contents of the medical certificate merely because the Doctor was not examined. In this case, considering the reasons based on which the disability was assessed, I find nothing unreasonable in it. M.A.C.A. No.1650/2011 : 6 : Therefore, I find that the disability of 15%, as certified in Ext.A16, is to be accepted, and it is ordered accordingly. Since the appellant was aged 35 years at the time of the accident, the multiplier applicable is 15. In such circumstances, when compensation for physical disability is re-assessed in the aboverevised criteria, it would come to Rs.1,21,500/- (4500 x 12 x 15 x 15/100). The amount awarded by the tribunal is only Rs.9,600/-. Thus, the additional amount would come to Rs.1,11,900/-. 8. Consequent to the revision of monthly income, the appellant would also be entitled to revision in compensation for the loss of income. In this regard, it is to be noted that the tribunal has awarded compensation under this head for three months. It is evident that the appellant sustained severe head injuries, and he had undergone inpatient treatment for a period of 19 days. Considering the nature of injuries as reflected in the medical documents, it is evident that, at least for a period of six months, he would have been prevented from pursuing his avocation. Therefore, six months is a reasonable period to calculate the compensation for loss of income. Since I have already fixed Rs.4,500/- as monthly income, the additional : 7 : M.A.C.A. No.1650/2011 compensation under this head would be Rs.19,500/- [(4500x6)7500]. 9. Another crucial aspect to be noticed is that, despite the serious physical disability, including the neurological disability, no amount is granted under the head of loss of amenities. I have already discussed the consequences of injuries in the earlier part of this judgment. Considering the said aspect, I am of the view that, an amount of Rs.30,000/- would be a reasonable figure under the head of loss of amenities. Considering the serious nature of the injuries, the period of hospitalisation and the difficulties he had faced consequent to the same, I am of the view that, Rs.12,000/- granted by the Tribunal under the head of pain and suffering is also inadequate. Therefore, I deem it appropriate to grant a further sum of Rs.13,000/- under the said head. Thus, the total additional compensation receivable by the appellant is fixed as Rs.1,74,400/- [111900 + 19500+ 30000+ 13000]. In the light of the above observations and findings, the award dated 30.05.2011 in OP(MV) No.3225/2004 passed by the Motor Accident Claims Tribunal, Thrissur, is hereby modified by granting an additional compensation of Rs.1,74,400/- (Rupees : 8 : M.A.C.A. No.1650/2011 one lakh seventy four thousand four hundred only) which shall be deposited by the 3[rd] respondent/insurance company with interest at the rate of 8% per annum and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd