Shiju N.M v. ICICI Lombard General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940** ## **M.A.C.A.No. 974 of 2015** **AGAINST THE AWARD IN O.P.(M.V)No.844/2012 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 23-01-2014** ## **APPELLANT/PETITIONER:** **SHIJU N.M AGED 28 YEARS S/O.MURALI, ALINGAL VEEDU, KARANAKODAM,THAMMANAM PO, COCHIN-25.** **BY ADVS. SRI.K.JANARDHANAN SRI.K.J.MANU RAJ** ## **RESPONDENT/3RD RESPONDENT:** **ICICI LOMBARD GENERAL INSURANCE CO. LTD. SHANMUGHAM ROAD, ERNAKULAM,COCHIN-31.** **BY ADV. SRI.LATHEESH SEBASTIAN, S.C** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 974 of 2015 2** ## **JUDGMENT** This appeal is filed by the appellant challenging the award dated 23.01.2014 in O.P.(M.V.) No.844 of 2012 on the files of the Motor Accident Claims Tribunal, Ernakulam (for short 'the Tribunal'). 2. The facts of the case in brief are to the following effect: On 03.03.2012 at about 7.40 p.m, the appellant who was a pedestrian through Thammanam-Pullepady road was knocked down by an autorickshaw bearing registration No. KL-7/BS-2292, driven by its driver in a rash and negligent manner. He sustained serious injuries and was rushed to Medical Trust Hospital, Ernakulam for treatment. He availed treatment from Nikhil Dental Clinic also. A sum of Rs.27,149/- was also spent towards his treatment. Alleging that the accident was occurred due to rash and negligent driving by the driver of the autorikshaw and seeking for a compensation of Rs.60,000/-, a claim petition was preferred before the Tribunal as above. The owner, driver and insurer of the autorickshaw were arrayed as respondent Nos. 1 to 3 in the claim petition. **M.A.C.A.No. 974 of 2015 3** 3. The driver and owner of the autorickshaw remained exparte before the Tribunal. The third respondent, the insurer of the autorickshaw had filed written statement before the Tribunal admitting insurance coverage of the autorickshaw with them as on date of the accident. The age, occupation and income of the appellant, the negligence of the driver of the autorickshaw and the quantum of compensation claimed by the appellant were disputed. 4. Before the Tribunal the appellant had adduced documentary evidence as Exts.A1 to A10 series. On appreciation of the evidence adduced as above, the Tribunal found that the driver of the autorickshaw was rash and negligent in driving the same and thereby responsible for causing the accident. The Tribunal has arrived at a sum of Rs.31,200/- as compensation payable to the appellant. Aggrieved by the quantum of compensation so awarded by the Tribunal and contending that it is on the lower side the appellant has approached this Court in the captioned appeal, seeking for enhancement. 5. Sri.K.Janardhanan, the learned counsel for the appellant has contended that though Ext.A10 series of medical **M.A.C.A.No. 974 of 2015 4** bills, which also takes in a bill issued from Nikhil Dental Clinic, showing a sum of Rs.12,000/- as expended by the petitioner towards replacement of his three teeth got fractured in the accident, have been produced before the Tribunal, the Tribunal failed to consider the same and grant the said sum as compensation under the head Medical Expenses. According to him, the injury to teeth was evidenced as caused in the accident and Rs.12,000/- was spent towards treatment. The Tribunal ought to have considered the same while calculating compensation towards medical expenses. According to the learned counsel, if the dental treatment was taken into account by the Tribunal, there would have been corresponding increase in the quantum of compensation payable under the heads pain and sufferings and loss of amenities and enjoyments in life. It is also contended that compensation for loss of earning was arrived at by the Tribunal, fixing the monthly income as Rs.4,000/-. According to him the fixation is on the lower side and interference and modification is highly warranted. 6. Shri.Latheesh Sebastian, the learned Standing Counsel for the third respondent, insurer has contended that absolutely no **M.A.C.A.No. 974 of 2015 5** evidence was available for the Tribunal to connect the treatment at Nikhil Dental Clinic with the injuries sustained in the accident. According to him, the Tribunal has discussed the injuries sustained by the petitioner elaborately in paragraph 9 of the impugned award and for want of absolute evidence to show that the appellant had sustained injuries on his teeth in the accident that it was disallowed. According to the learned Standing Counsel Rs.4,000/- was fixed by the Tribunal as monthly income for the purpose of computation of compensation for loss of earning and disability and the petitioner being a mason, that is a reasonable sum and interference is totally unwarranted. 7. Bearing the rival contentions in mind, this Court had ventured to have a scrutiny of the evidence on record. The parties to this appeal are referred to hereinafter as the claimant and respondents 1 to 3. As already stated the evidence on record is confined to documentary evidence alone. Ext.A10 series are medical bills. It is evidenced from Ext.A10 series that the same include a bill for Rs.12,000/- issued from Nikhil Dental Clinic. It is noted in the bill that three teeth of the upper jaw of the petitioner were replaced. I had gone through Paragraph 9 of the impugned **M.A.C.A.No. 974 of 2015 6** award and found therefrom that the said bill though included in Ext.A10 series was not considered by the Tribunal for the reason that no where in Ext.A5 wound certificate, a note on missing of teeth was found. Therefore, the Tribunal observed in the impugned award that absolutely no materials are available in evidence that the replacement of the teeth was necessitated by the injury sustained in the motor accident. Accordingly, the bill for Rs.12,000/- was discarded and compensation was declined on that count. I had a glance at Ext.A3, the final report, prepared in crime No.2288 of 2012, registered with reference to the motor accident in question and found from the description made therein that the petitioner had sustained fracture of three teeth of his upper jaw in the accident. It is also pertinent to note from Ext.A3 that the driver of the autorickshaw was chargesheeted by the police also for offence punishable under Section 338 of the Indian Penal Code. Therefore there is no reason to doubt that the petitioner had sustained fracture of three teeth of his upper jaw in the motor accident in question. It is true that in Ext.A5, the accident register cum wound certificate, any injury to teeth was not reported. It being evidenced from Ext.A3, that the petitioner **M.A.C.A.No. 974 of 2015 7** had sustained fracture of three teeth of his upper jaw, there is every justification for this Court to consider the bill issued from Nikhil Dental Clinic for Rs.12,000/- and available on record along with Ext.A10 series. Therefore, this Court is inclined to modify the compensation by granting Rs.12,000/- in excess to Rs.15,200/- already awarded under the head medical expenses. Therefore, a total sum of Rs.27,200/- is payable as compensation under the head medical expenses. 8. As rightly put forth by the learned counsel for the petitioner, the compensation for loss of earning was calculated by the Tribunal by fixing Rs.4,000/- as the monthly income. The accident was occurred in the year 2012, and in view of _**Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]**_ , wherein Rs.4,500/was fixed by the Apex court as the monthly income in the case of a coolie worker, the petitioner in the case on hand being a mason, this Court finds every justification in fixing Rs.4,500/- as the monthly income for the purpose of arriving at the compensation payable. The Tribunal has taken loss of earning only for a month. The period taken by the Tribunal being a reasonable period, this **M.A.C.A.No. 974 of 2015 8** Court is declined to interfere with. When the monthly income is refixed as Rs.4,500/-, there will be an enhancement of Rs.500/and the same is awarded under the head loss of earning. 9. A claim was also raised by the learned counsel for enhancement of compensation under the head pain and sufferings and loss of amenities and enjoyments in life. It is pertinent to note from the impugned award that the Tribunal has awarded Rs.5,000/- each under the above heads. It is relevant to notice that the petitioner must have suffered pain and suffering on account of fracture of three teeth of his upper jaw in the accident. But, as disclosed by the bill issued from Nikhil Dental Clinic, the petitioner’s fractured three teeth of the upper jaw were replaced by new teeth. Therefore, I am declined to grant any compensation under the head loss of amenities and enjoyments in life, but in view of the pain that he was constrained to suffer following the fracture of three teeth, I am inclined to grant a sum of Rs.5,000/- additionally. In the reassessment of computation as above, the petitioner will be entitled to get an additional sum of Rs.17,500/- (Rupees seventeen thousand five hundred only) as compensation. **M.A.C.A.No. 974 of 2015 9** The appeal stands allowed on terms as above stated. The third respondent, the insurer shall deposit the enhanced sum of Rs.17,500/- (Rupees seventeen thousand five hundred only) with interest at the rate of 8% per annum from the date of the claim petition till the date of realization, within a period of three months from the date of receipt of a copy of this judgment. Parties shall bear their respective costs. ## **Sd/-** **MARY JOSEPH JUDGE** NAB