Sinil Chacko v. M.U. PONNAMMA @ ROHITH PONNAMMA; M.K. UTHAPPA; National Insurance Company

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938** **MACA.No. 1564 of 2012 () -------------------------** **AGAINST THE AWARD IN OPMV 465/2009 of MACT,KALPETTA DATED 12-04-2012** ## **APPELLANT/PETITIONER:** **---------------------------------** **SINIL CHACKO, S/O ESSO, KANAKAKUNNEL HOUSE, VIMALANAGAR P.O., AMBALAKOLLY, THALAPUZHA, MANANTHAVADY.** ## **BY ADV. SRI.ABRAHAM MATHEW (VETTOOR)** ## **RESPONDENTS/RESPONDENTS:** **--------------------------------------** **1. M.U.PONNAMMA @ ROHITH PONNAMMA,** - **S/O M.K. UTHAPPA, NADANGAL ROAD, KUTTA P.O, VIRAJPET TALUK, PIN:571150 (DRIVER OF THE JEEP NO.KA12/M 2700).** **2. M.K.UTHAPPA, S/O M.A.KURUMBAIAH, P.B.NO.50, NADANGAL ROAD, KUTTA P.O, VIRAJPET TALUK. PIN:571150. (OWNER OF THE JEEP NO.KA12/M 2700).** **3. NATIONAL INSURANCE COMPANY, KALPETTA (LOCAL BRANCH OF THE INSURER VIRAJPET, KODAGU) POLICY NO.602404/31/08/6100002075 VALID UP TO 11.8.2008 TO 10.8.2009) PIN:673 121.** **R3 BY ADV. SRI.LAL K.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1564 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of June, 2016 ## **JUDGMENT** ## Ravikumar, J. The injured petitioner comes up in appeal feeling dis-satisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Kalpetta as per judgment and award dated 12.4.2012 in O.P.(MV)No.465/2009. The petitioner filed the claim petition under Section 166 of Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident occurred on 22.07.2009 at 10.30 a.m. He was riding his motor cycle on that day from Mananthavady to Battagiri. When he reached Kutta town, the offending vehicle which is a jeep bearing Reg.No.K A 12M/2700, came from the opposite direction and hit against his motor cycle. Consequently, the appellant sustained serious injuries. It is seeking compensation of Rs.3,00,000/- that he MACA No.1564/2012 2 filed the aforementioned claim petition. Before the Tribunal the parties have not tendered any oral evidence though Dr.Suresh Kumar who was one of the members of the Medical Board who assessed the petitioner's disability was examined as CW1 and through him Ext.C1 disability certificate was marked. On the side of the appellant Exts.A1 to A10 were got marked. No evidence whatsoever has been tendered by the respondents. The Tribunal as per the impugned award granted an amount of Rs.96,100/ with interest @ 7.5% from the date of petition till realisation. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent. Evidently, there is no dispute regarding the accident, cause accident as negligence from the part of the first respondent and the insurance coverage of the offending vehicle. In short, the sole question to be considered in this appeal is whether or not the appellant is entitled to get enhanced compensation. In such circumstances, issuance of notice to respondents 1 and 2 is dispensed with and we are proceeding with the consideration of the appeal at the admission MACA No.1564/2012 3 stage itself. 3. Obviously, the main grievance of the appellant is that despite his specific assertion in the claim petition that he was working as a Technician in Tata Sky and was earning an amount of Rs.18,000/- per month and produced Ext.A10 job certificate to substantiate such contentions the Tribunal took the monthly income notionally only at Rs.3,000/-, for calculation purpose. According to the appellant, it is the erroneous fixation of the monthly income that resulted in deprivation of just compensation. The learned counsel for the appellant further contended that though the appellant did not seek specifically for any amount towards future treatment, taking note of the disability sustained by the appellant as a result of the accident, the Tribunal ought to have considered the said aspect and granted adequate amount to meet such expenses. The learned counsel further contended that the Tribunal was not justified in taking the percentage of disability only as 5% and according to the learned counsel taking note of the permanent disability incurred by him in the accident, the Tribunal ought to have taken 16% MACA No.1564/2012 4 permanent disability in the light of the oral testimony of CW1, for granting compensation therefor. 4. Per contra, the learned counsel appearing for the third respondent contended that the Tribunal cannot be found fault with in fixing the monthly income notionally for the purpose of computing compensation for permanent disability since the appellant had failed to establish his claim regarding the occupational income. It is further contended that the Tribunal went wrong in granting compensation towards loss of earning power after granting compensation for permanent disability as it amounts to duplication. It is contended that the appellant is entitled to get compensation under only one among the said grounds. It is also contended that the Tribunal has erred in adopting the multiplier as 18. It is submitted that Ext.A8 SSLC would reveal that the date of birth of the appellant is 22.5.1980 and therefore the Tribunal ought to have taken 17 as the multiplier with reference to the age of the appellant on the day of the accident. The learned counsel further contended that a bare perusal of the schedule appended to the award would reveal that in fact, the MACA No.1564/2012 5 Tribunal has granted compensation in excess and at any rate, there is no room for raising the grievance that adequate compensation was not granted under any of the heads. In short, it is contended that the appellant had not made out a case for getting enhanced compensation. 5. We will firstly consider the question whether the contention of the appellant that the Tribunal has erred in limiting the percentage of disability as 5%, instead of taking it as 16% taking note of the oral testimony of CW1. However, Ext.C1 is the disability certificate issued by the Medical Board attached to the District Hospital, Mananthavady and going by the same, the appellant incurred only a permanent disability of 3% as a result of the accident. Evidently, the foundation for the aforesaid argument of the learned counsel for the appellant is that from the box CW1 deposed that the permanent partial disability of the appellant is 16%. It is to be noted that CW1 is also one among the members of the Medical Board which assessed the permanent disability of the appellant as 3%. It is also to be noted that nowhere in Ext.C1, there MACA No.1564/2012 6 is a certification to the effect that the permanent partial disability of the appellant is 16%. In such circumstances, we are at a loss to understand the basis for the oral testimony of CW1 to the extent that the appellant had incurred a permanent partial disability to the tune of 16%. It cannot be accepted in the light of Ext.C1 and if the Board had made any such assessment that the appellant had incurred 16% permanent partial disability, definitely it would have found a place in Ext.C1 disability certificate. It is to be noted that after taking note of the deposition of CW1 and also the nature of the disability certified under Ext.C1, the Tribunal had the advantage of seeing the appellant. The Tribunal evidently fixed the permanent disability of the appellant as 5%. Taking note of all such circumstances, we are of the view that there is absolutely no scope for interfering with the assessment made by the Tribunal and for enhancing the permanent disability over and above 5% which was assessed the Tribunal for the of by purpose calculating compensation for permanent disability. 6. The next question to be looked into is whether the MACA No.1564/2012 7 appellant is justified in contending that the Tribunal went wrong in fixing the monthly income as Rs.3,000/-. While considering the said question, the fact that the accident occurred on 22.09.2009 and on the date of the accident, the appellant was aged only 29 years have also to be taken into account. True that the appellant had taken up the contention that he was working as a Technician under Tata Sky and was earning an amount of Rs.18,000/- per month. At the same time, it is a fact that despite taking up such contention, the appellant had failed to establish them before the Tribunal. In such circumstances, we do not find any flaw or fault with the Tribunal in fixing the monthly income notionally for calculation purpose. Taking into account the aforesaid factors i.e. the year of the accident and the age of the appellant on the day of the accident and bearing in mind the decision of the Apex Court in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. [( 2011) 13 SCC 236]** , wherein in respect of a coolie who met with an accident in the year 2004, for calculation purpose, the apex court fixed his monthly income as Rs.4,500/-, we are of the view that the monthly income of MACA No.1564/2012 8 the appellant can be taken notionally at Rs.5,000/-. Since we have modified the multiplicand as also the multiplier, the compensation for permanent disability has to be reassessed taking into account the said fact. On such reassessment, the appellant would be entitled to get an amount of Rs.51,000/- (5000 x 12 x 17 x 5/100) under that head. But the Tribunal has already granted an amount of Rs.32,400/- and therefore after deducting the said amount, the appellant would be entitled to get only an amount of Rs.18,600/additionally under that head. The nature of the injuries sustained by the appellant in the accident and also the permanent disability incurred by him in the accident would constrain us to hold that the Tribunal was not justified in limiting the period of loss of earnings as three months. Taking into account such aspects we are of the view that the period of loss of earnings ought to have been taken as five months. Since we have already fixed the monthly income of the appellant as Rs.5,000/-, for a period of five months, the appellant would be entitled to get an amount of Rs.25,000/-. The Tribunal has already granted an amount of Rs.9,000/- under that head. In such MACA No.1564/2012 9 circumstances, the appellant would be entitled to get an enhancement of Rs.16,000/- under that head. 7. Taking note of the evidence of CW1, it is obvious that the appellant has to undergo a further surgery to remove the implantation. The nature of injuries and their aftermath would also justify the said opinion of CW1. In such circumstances, towards expenses for future treatment, we are inclined to grant an amount of Rs.15,000/-. Accordingly, it is granted. 8. Towards bystander's expenses, the Tribunal granted an amount of Rs.1,100/- for a period of 11 days evidently @ Rs.100/per day. Taking note of the year of the accident, we are of the view that the rate ought to have been Rs.200/- per day and consequently the appellant would be entitled to Rs.1,100/- more under that head. 9. Towards damage to clothing, as against the claim of Rs.1,000/-, the Tribunal granted only an amount of Rs.500/-, we do not find any reason for not granting the entire claim made by the appellant under that head. In the result, Rs.500/- more is granted under that head. 10. There cannot be any doubt with respect to MACA No.1564/2012 10 the position that in the light of the settled position of law that an injured claimant cannot be granted compensation for permanent disability and then compensation for loss of earning power. Compensation is awardable only under any of them depending upon the evidence on record. In the said circumstances, we are of the view that since the appellant has already been granted compensation for permanent disability, the Tribunal went wrong in granting compensation for loss of earning power. The Tribunal granted an amount of Rs.3,000/- under the head compensation for loss of earning power after granting an amount of Rs.32,000/- ( 3000 x 12 x 18 x 5%) as compensation for permanent disability. At the same time, we are of the view that towards loss of amenities and conveniences, the Tribunal granted only an amount of Rs.2,000/and taking note of the nature of the permanent disability incurred by the appellant, we are of the view that the amount granted under the said head invites modification and consequently, we are inclined to granted Rs.3,000/- more under the said head. In other words, we award an amount of Rs.5,000/- under that head. MACA No.1564/2012 11 In the light of the discussion as above, the appellant is entitled to get a total enhanced amount of Rs.54,200/-. The said enhanced amount will carry interest @ 8% per annum from the date of petition till realisation. The third respondent is directed to deposit the said amount within two months from the date of receipt of a copy of this judgment, failing which, the amount remaining to be paid will carry interest @ 9% per annum from the date of petition. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 25/06/2016