Sivadas @ Das v. Ranjit Kumar and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944** **MACA NO. 2574 OF 2012** **AGAINST THE AWARD DATED 25.08.2012 IN O.P(MV) No.994/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** SIVADAS @ DAS, S/O.KUTTAPPA PANICKER, CHERUKATTIL HOUSE, PEERMADEKARA, PEERMADE VILLAGE, PRESENTLY RESIDING AT THAYILHOUSE, THEKKUMURI KARA,PULIYANOOR VILLAGE. BY ADVS. THOMAS ABRAHAM (NILACKAPPILLIL) K.B.ARUNKUMAR ## **RESPONDENTS/RESPONDENTS:** 1 RANJIT KUMAR, S/O. MANIKANDAN,DOOR NO.11/3, SIVADI STREET, SURULIPATTY(PO), UTHAMAPALAYAM TALUK, THENI DISTRICT, PIN-625 516. 2 KRISHNAMOORTHY.P, NO.67, KUZHALAR STREET, KAMAYAKAVANDANPATTY, UTHAMAPALAYAM TALUK, THENI DISTRICT, PIN-625 521. 3 THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD, GEPLAZA, AIRPORT ROAD, YERWADA,PUNE, PIN-411 006. 4 V.PALANI MURUGHAN, S/O.M.VASAGAR, 147-11, EAST STREET, SURULIPATTY(PO), UTHAMAPALAYAM TALUK, THENI DISTRICT, PIN-625 516. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 19.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2574 of 2012** 2 ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging award dated 25.08.2012 in O.P.(M.V) No.994/2009 on the file of the Motor Accidents Claims Tribunal, Pala, at the instance of the petitioner. The respondents before the Tribunal are the respondents herein also. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel appearing for the Insurance Company. 3. Brief facts of the case: In this case, the appellant, who alleged to have met with an accident on 08.04.2009 at about 11:30 a.m, while he was travelling in an autorickshaw bearing registration No.KL-376305 from Pampanar to Peerumedu bhagom and sustained injuries in the accident, had lodged claim petition under Section 166 of the Motor **M.A.C.A No.2574 of 2012** **==> picture [7 x 9] intentionally omitted <==** Vehicles Act, before the Tribunal. It is alleged by the appellant that a pick up jeep bearing registration No.TN-60X-9001, driven by the 1[st] respondent in a rash and negligent manner, dashed the auto and the same resulted in the accident. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the vehicle. On the above facts, the appellant claimed Rs.2,50,000/- from respondents 1 to 3, as compensation. **==> picture [375 x 14] intentionally omitted <==** statement disputing the negligence as well as quantum of compensation. 5. The Tribunal jointly tried this case (O.P(MV) No.994/2009) along with O.P.(M.V) No.1178/2009 and marked Exts.A1 to A27 on the side of the claimants. No evidence let in on the side of the respondents. 6. The Tribunal appraised the evidence and finally granted Rs.1,08,378/as compensation along with 7.5% interest per 4 ## **M.A.C.A No.2574 of 2012** annum. 7. The learned counsel for the appellant challenged the award on the ground of inadequacy. According to him, the Tribunal wrongly fixed the monthly income as Rs.4,000/-, in a case where the appellant earned monthly income at Rs.7,000/- as a mechanic. 8. Following the ratio in _**Ramachandrappa**_ ## _**v. Manager, Royal Sundaram Alliance Insurance**_ _**Company Ltd.**_ : **(2011) 13 SCC 236,** Rs.7,000/claimed is liable to be accepted in this case involving accident of the year 2009, and, therefore, the said aspect is not opposed by the other side. Therefore, the monthly income is re-fixed as Rs.7,000/- per month. 9. It is argued by the learned counsel for the appellant further that the disability certificate, Ext.A14 showing 18% disability was not accepted by the Tribunal and the Tribunal reduced the same to 8%. According to **M.A.C.A No.2574 of 2012** **==> picture [7 x 9] intentionally omitted <==** him, Ext.A14 is a certificate issued by the Medical Board and, therefore, 18% ought to be accepted by the Tribunal. 10. Per contra, it is submitted by the learned Standing Counsel for the insurer that though as per Ext.A14, 18% disability was fixed, the same is recorded under the category mild disability. That apart, the treatment records do not show any infirmity as noted in the disability certificate to fix 18% disability. Therefore, the learned Standing Counsel would submit that 8% disability accepted by the Tribunal is justified and there is no necessity to interfere with the said finding. 11. In view of the above submissions, it is necessary to look into the treatment records and the nature of injuries as well as the consequential treatment underwent by the appellant. Ext.A6, the copy of wound certificate and Ext.A7, the discharge card ## **M.A.C.A No.2574 of 2012** 6 would go to show that the treatment of the appellant was from 08.04.2009 to 16.04.2009 on the finding of open fracture lower pole right patella and pattelar tendon injury. Application of POP and removal of the same on proper union is the observation to be gathered from the discharge card. 12. In the disability certificate, 18% mild disability on the ground of partial ankylosis of right patello femoral joints was diagnosed. Considering the fracture patello and consequential treatment thereof, and in the interests of justice, I am inclined to accept 15% disability in this matter as against 8%, as accepted by the Tribunal. The learned counsel canvassed increased under the head 'loss of amenities' along with the claim for enhanced compensation under the head 'loss of earnings'. 13. In this case, the Tribunal granted Rs.16,000/- towards 'loss of earnings' for a ## **M.A.C.A No.2574 of 2012** 7 period of 4 months @ 4,000/- per month. Considering patello fracture and treatment, I am inclined to increase the 'loss of earnings' for a period of 5 months @ 7,000/- per month and the same would come to Rs.35,000/(7,000x5). Therefore, **Rs.19,000/-** more is granted under the head 'loss of earnings'. **==> picture [375 x 13] intentionally omitted <==** Tribunal is not in dispute. Therefore, 'loss of disability income' required to be re- calculated as under: **==> picture [245 x 13] intentionally omitted <==** Out of which, Rs.49,920/- was granted by the Tribunal. Thus, the appellant is entitled to the balance of **Rs.1,13,880/-** more under the head of 'loss of disability income'. **==> picture [375 x 13] intentionally omitted <==** Rs.12,000/- was granted by the Tribunal. Considering the injuries and treatment, I am inclined to grant **Rs.8,000/-** more under the head 'loss of amenities'. ## **M.A.C.A No.2574 of 2012** 8 16. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get Rs.2,49,258/- as total compensation, out of which Rs.1,08,378/- was granted by the Tribunal and the balance amount of **Rs.1,40,880/-** (Rupees One Lakh Forty Thousand Eight Hundred and Eighty Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 3[rd] respondent from the date of petition till the date of deposit or realisation. The 3[rd] respondent is directed to deposit the same in the name of the appellant within two months. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww