Shiju v. State Express Transport Corporation and Madhavaraj G.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 ``` ``` MACA NO. 2384 OF 2012 AGAINST THE ORDER/JUDGMENT OPMV 973/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER:`** ``` SHIJU S/O.GEORGE, ARIKKATT HOUSE, ALOOR DESOM & VILLAGE, VELLANCHIRA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MANAGING DIRECTOR STATE EXPRESS TRANSPORT CORPORATION, PALLAVAN, SALAI, CHENNAI-600001. 2MADHAVARAJ.G. S/O.GANESH, 19A, MAJARA KOLLAPPATTY, SARKAR KOLLAPATTY, SALEM-636030. ``` ``` ADV SUBHASH CYRIAC-R1 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2384/2012 : 2 : ## **JUDGMENT** The appellant was the petitioner in OP(MV) No. 973/2008 on the files of Motor Accident Claims Tribunal, Irinjalakkuda. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 20/02/2008. 2. According to the appellant, the accident occurred, when the motor cycle ridden by him, was hit by a stage carriage driven by the 2[nd] respondent and owned by the 1[st] respondent. The appellant sustained serious injuries and had undergone treatment in St. James Hospital, Chalakkudi. According to him, he was working as a Higher Secondary School Teacher, in a Government Aided School with a monthly income of Rs.19,000/-. The compensation was sought in such circumstances. 3. The 1[st] respondent, the State Express Transport Corporation, the owner of the vehicle filed a written statement denying any negligence on the part of the 2[nd] respondent. According to them, the accident occurred due to the negligence on the part of the appellant himself. They also disputed the quantum M.A.C.A. No.2384/2012 : 3 : of compensation as well. 4. The evidence in this case consists of Ext. A1 to A9 from the side of the appellant and no evidence was adduced by the respondent. 5. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent in driving the said vehicle and being the owner/employer of the said vehicle, the 1[st] respondent was liable to pay the compensation. The quantum of compensation was fixed as Rs.73,000/-, and the said amount was directed to be deposited by the 1[st] respondent with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 6. Heard Sri. P.V. Baby, leaned counsel appearing for the appellant and Sri. Subhash Cyriac, the learned counsel appearing for the 1[st] respondent. 7. The main contest in this appeal relates to the quantum of compensation. The specific grievance highlighted by the learned counsel for the appellant is that, even though the appellant sustained serious injuries and consequential physical disability, no M.A.C.A. No.2384/2012 : 4 : compensation was granted for the same. It is pointed out that Ext.A6 Disability Certificate was produced wherein the percentage of disability was certified as 15%, but it was not accepted by the Tribunal merely because of the reason that the Doctor who issued the said certificate, was not examined. 8. After considering the materials placed on record, I find force in the contention put forward by the learned counsel for the appellant. Of course it is true that, to substantiate Ext.A6 Disability Certificate, the Doctor was not examined, but merely because of that reason the Tribunal should not have discarded the contents of the same as such. This is particularly because, it is evident from the observations made by the tribunal in paragraph 7 at page 5 of the award that, the tribunal was convinced of the nature of injuries and the consequences arising therefrom after personal examination of the appellant. The relevant observations in this regard are as follows: “However I fee that a substantial and reasonable amount can be granted towards discomfort relying upon this document for the purpose of computation of disability. I have also personally examined the person in the open court and seen that there were large wounds which were partially healed. He is a teacher. He could not raise his hand because of the stiffness. There was fracture on the right elbow. There was large wound. He could not twist or turned his hand. There M.A.C.A. No.2384/2012 : 5 : was fracture on the right side portion of the face. Depression was seen there. Depressed zygoma was also observed by the medical authorities. There was discoloration at the right palm of his leg. There was no proper blood circulation. He is not feeling any sensation therein. He would say that he cannot effect the teaching classes regularly as it was done by him. He continued treatment for his hand. Stiffness is there still. He cannot move his body in the morning. His injuries were contaminated with chronic discharges. Chronic ulser and discharge were noticed. I feel that this is a very sympathetic and discomfort situation.” 9. The pathetic physical condition of the appellant is very much evident from the above observations as well. Therefore, I am of the view that, the percentage of disability as certified in Ext.A6 was a probable one and hence compensation on the basis of the physical disability certified therein should have been granted by the tribunal. As held by this Court in **Manikandan.G v. K Janardhanan Nair and others (2021 KHC Online 539-2021(4) KLJ 195)** , in the absence of any discrepancies in the medical certificate, the same cannot be discarded by the tribunal, merely because of the nonexamination of the Doctor. In this case, I have already found that, the injuries as is discernible from the award itself, in all probabilities, would result in the disability to the extent as certified. In such circumstances, I am inclined to accept the percentage of disability certified therein. 10. The next aspect relates to the monthly income of the M.A.C.A. No.2384/2012 : 6 : appellant. Ofcourse it is true that, as per the salary certificate produced, the appellant was getting a monthly salary of Rs.18,789/-. However, it is a fact that, despite suffering the physical disablement he continued in his employment and therefore there was no actual reduction in the earning capacity. Therefore, the entire salary as shown in the salary certificate need not be taken. However, the fact that, he has to live with that disability and it would certainly cause serious difficulties for him in carrying out his obligation attached to his employment, cannot be ignored. He may also have to take extra efforts to fulfill his responsibilities in the employment and it is likely to affect his performance as well. In such circumstances, some compensation has to be granted for the disability, even though the same need not be assessed on the basis of the salary which he was actually receivable. It is to be noted in this regard that, if the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted the monthly income for an ordinary employee for the year 2008 can be taken as M.A.C.A. No.2384/2012 : 7 : Rs.6,000/- (by treating the basic monthly income as Rs.4,500 for the year 2004 and to add Rs.2500/- each per year). In this case, for the purpose of assessment of compensation for disability the said monthly income can be accepted. Thus while assessing the compensation with the above criteria, Rs.1,87,200/(6500x12x16x15/100). 11. The next head pertains to the amount awarded for pain and sufferings, discomfort and loss of amenities. The amounts awarded under these heads are Rs.15,000/-, Rs.15,000/- and Rs.10,000/- respectively. The learned counsel for the 1[st] respondent would point out that there is duplication in the said compensation, as despite granting Rs.15,000/- towards discomfort, a further amount of Rs.10,000/- was granted towards loss of amenities. Ofcourse it is true that, the compensation under both heads need not have been granted. However, even if both the said heads are taken together, the amount to be awarded appears to be on the lower side. The nature of injuries and the difficulties that are arising therefrom, are specifically dealt with in the award itself and the relevant portion is already extracted above. From the reading of the said observations, it is evident that, the appellant had to M.A.C.A. No.2384/2012 : 8 : undergo severe mental as well as physical difficulties, consequent to the said injuries. Moreover, such serious nature of injuries were sustained to him at a young age of 33 years and he has to live whole life with that disability. Therefore, I am of the view that, even the amount awarded under both the head referred to above are taken together, it is on the lower side and in the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.15,000/- under the said head of loss of amenities. 12. Similarly the amount awarded towards pain and sufferings also requires some enhancement considering the serious nature of the injuries and its impact. In such circumstances, a further sum of Rs.15,000/- is awarded under this head as well. Thus, the total additional compensation is determined as Rs.2,17,200/- (187200+ 15000+15000). 13. In the light of the aforesaid observations and findings this appeal is allowed. The award dated 22.11.2011 in OP(MV) No.973/2008 passed by the Motor Accident Claims Tribunal, Irinjalakuda, is modified by granting an additional compensation of Rs.2,17,200/- (Rupees two lakhs seventeen thousand two hundred only) and the 1st respondent is directed to deposit the said amount M.A.C.A. No.2384/2012 : 9 : along with interest at the rate as ordered by the tribunal with proportionate cost within a period of three weeks from the date of receipt of a copy of this judgment. However, it is clarified that as the delay of 138 days in filing the appeal was condoned subject to the condition that the additional compensation if any granted will not carry interest for the said period, the 1st respondent shall entitled to exclude the said period while calculating interest on the additional compensation. It is further ordered that the claimant shall furnish the details of the PAN card, Aadhar card and bank details within a period of two months from the date of receipt of a copy of this judgment, to enable the 1[st ] respondent to make the deposit as ordered above,. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **ZIYAD RAHMAN A.A. JUDGE** shams/ncd/