Sivankutty V.P (through legal heirs) and Omana Sivankutty, Arunkumar V.S., Ajithkumar V.S. v. Kumaran and Oriental Insurance Co. Ltd.

MACA.No.462/2014 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA,_ ## _1945_ ## _MACA NO. 462 OF 2014_ _AGAINST THE ORDER/JUDGMENT OPMV 1529/2010 OF ADDITIONAL_ _MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM_ ## _APPELLANT/PETITIONER:_ - _1 SIVANKUTTY V.P (EXPIRED),_ - _2 OMANA SIVANKUTTY, AGED 44 YEARS, WIFE OF SIVANKUTTY V.P., VADAKOTTU HOUSE,_ _KANGAZHA P.O., PATHANADU (VIA) CHANGANACHERRY._ _3 ARUNKUMAR V.S., AGED 25 YEARS, SON OF SIVANKUTTY V.P., VADAKOTTU HOUSE,KANGAZHA P.O., PATHANADU (VIA) CHANGANACHERRY._ _4 AJITHKUMAR V.S., AGED 22 YEARS, SON OF SIVANKUTTY V.P., VADAKOTTU HOUSE,KANGAZHA P.O., PATHANADU (VIA) CHANGANACHERRY._ _BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS KACHIRAMATTOM_ ## _RESPONDENTS/RESPONDENTS:_ _1 KUMARAN, SON OF CHEPPAN @ CHELLAPPAN, PANNIKKUZHIYIL HOUSE, VELLAVAOOR P.O. (VIA) CHANGANACHERRY._ MACA.No.462/2014 2 _2 ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM DIVISION._ _BY ADVS. M.K.SUMOD VIDYA M.K.(K/910/1990) RAJ CAROLIN V.(K/001117/2018) THUSHARA.K(K/1443/2020)_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.462/2014 3 ## **JUDGMENT** The appellants are the legal heirs of the deceased petitioner in O.P.(MV). No.1529 of 2010. The said claim petition was submitted by one Sivankutty V.P., seeking compensation for the injuries sustained to him in a motor accident that occurred on 09.01.2010. 2. According to the petitioner, the accident occurred when the scooter in which he was pillion riding was hit by an autorickshaw bearing registration No.KL-33A 5817. The said autorickshaw was owned and driven by the 1[st] respondent at the time of the accident and was insured with the 2[nd] respondent. According to him, he was 49 years old at the time of the accident and was working as an automobile broker with a monthly income of Rs.8,000/-. Injuries sustained by him resulted in physical disablement, and the claim petition was submitted in such circumstances seeking compensation for the injuries. 3. The 2[nd] respondent alone contested the matter by filing a written statement, wherein they admitted the coverage of policy with respect to the autorickshaw. However, they denied the liability on various grounds. They also disputed the quantum of compensation. MACA.No.462/2014 4 4. The evidence in this case consists of Exts.A1 to A13 from the side of the claimant and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1[st] respondent and being the insurer of the said vehicle, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.5,36,814/- and the 2[nd] respondent was directed to deposit the said amount along with interest at the rate of 8.5% per annum from the date of petition till realization with proportionate cost. After the award, the claimant passed away, and this appeal was submitted by the legal heirs of the claimant, seeking enhancement of compensation. 5. Heard Sri. Thomas Kachiramattam, learned counsel for the appellants and Sri.M.K.Sumod, learned counsel for the 2[nd] respondent, the Insurance Company. 6. The Tribunal found that, at the relevant time, two pillion riders were travelling on the scooter. Therefore, negligence was attributed to them, and the share of contribution was fixed at 5%. The learned counsel for the appellant submits that the finding of the contributory negligence of 5% is not at all proper. The learned counsel also placed reliance upon the MACA.No.462/2014 5 decision rendered by a Division Bench of this Court in **Binoj Antony v. New India Assurance Company Ltd. [2014(1) KLT** **393],** wherein it was held that mere fact that the motorcycle was carrying two pillion riders cannot ipso facto give rise to interference of contributory negligence unless there is evidence to prove that act of carrying of two pillion riders contributed to the accident. In this case, apart from the fact of having two pillion riders, there is absolutely nothing to show that the said act contributed to the accident. Therefore, the finding of the Tribunal, attributing the contributory negligence at the rate of 5% upon the claimant, is liable to be set aside, and it is ordered accordingly. 7. Another dispute in this case relates to the quantum of compensation. The learned counsel for the appellant submits that the amounts of compensation determined by the Tribunal under various heads are significantly on the lower side. On going through the materials placed on record, I find some force in the said contention, even though the learned counsel for the 2nd respondent stoutly opposed the said contention. To determine the compensation for loss of earning power consequent to the physical disability, the Tribunal fixed a monthly income of Rs.4,500/-. The claim made by the claimant MACA.No.462/2014 6 in this regard was Rs.8,000/- and according to him, he was working as an automobile broker. No evidence was adduced to substantiate the nature of his employment and income that he used to derive from the avocation. But the crucial aspect to be noticed is that as per the method of computation of monthly income evolved from the principles laid down by the Honorable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735],** even in the absence of any evidence, the monthly income of an ordinary worker can be fixed as Rs.4,500/- in respect of an accident in the year 2004. Usually, to determine the monthly income for subsequent years, Rs.500/is added per year. While computing the monthly income with the said method of computation, the monthly income for a person with respect to an accident in the year 2010 can be fixed as Rs.7,500/-. As the same appears to be a reasonable figure, it is accepted as the monthly income of the claimant in this case. 8. The next element is the percentage of disability. As per Ext.A11, issued by the doctor of the District Hospital, Kottayam, the extent of physical disablement was certified as 20%. It was stated in the said certificate that, the claimant was MACA.No.462/2014 7 not able to walk. He was bedridden with infected multiple discharging sinuses from the right lower limb. Also, his right leg is shortened. However, the Tribunal did not accept the said percentage of disability certified therein, mainly because the certificate was not proved by examining the doctor who issued the same. On going through the award passed by the Tribunal, it can be seen that even though the Tribunal did not accept the percentage of disability, the contents of the said certificate and the injuries sustained by the claimant were apparently accepted. Moreover, the Tribunal was convinced of the physical disability suffered by the claimant after his appearance before the Tribunal. As far as the necessity of examination of the Doctor is concerned, the position of law in this regard is well settled. In **Manikantan G. v. K.Janardhanan Nair and Others [2021(5) KHC 305], this Court has already held that** when the Doctor certifies the disability of an injured, the Tribunal cannot scale down the percentage of disability certificate therein in the absence of any discrepancy in the said certificate. In case the Tribunal has any doubt, steps should be taken to refer the injured to the Medical Board for assessment of disability. In this case, as observed above, no discrepancies were noted by the Tribunal in the certificate issued by the Doctor regarding the MACA.No.462/2014 8 percentage of disability and the incident, but the same was not accepted merely because the Doctor was not examined. In such circumstances, taking note of the nature of injuries and the reasons which prompted the doctor to assess the physical disability of 20%, I am of the view that the same can be accepted. While re-assessing the compensation with Rs.7,500/as the monthly income and the physical disability as 20%, the amount of compensation under the head of loss of earnings would come to Rs.2,34,000/- (7500 x 12 x 13 x 20/100]. The amount already awarded by the Tribunal under the said head was Rs.1,05,300/-; thus, the additional amount receivable by the claimant would be **Rs.1,28,700/-** . 9. Consequent to the revision of monthly income, the appellant would also be entitled to additional compensation for loss of earnings. It is seen from the records that the Tribunal has awarded compensation under the said head for a period of 12 months. Even though the learned counsel for the appellant seeks compensation for a longer period, I am not inclined to accept the same. Compensation for loss of earnings for a period of 12 months appears to be reasonable in the facts and circumstances of the case. Therefore, the additional MACA.No.462/2014 9 compensation under this head would be **Rs.36,000/-** [(7500 x 12) – 54000]. 10. The Tribunal awarded Rs.50,000/- towards pain and suffering. This is a case in which the claimant had undergone inpatient treatment for a period of 160 days. It is also discernible from Annexure-11 Medical Certificate that he was bedridden with infected multiple discharging sinuses from the right lower limb. Documents would also indicate that he availed of prolonged treatment due to the injuries sustained. There was shortening of limb as well. Therefore, considering the severe nature of injuries a further sum of **Rs.25,000/-** is granted under the head of pain and suffering. Similarly, the amount awarded towards the loss of amenities, which was Rs.25,000/- by the Tribunal, also requires reconsideration, considering the nature of the injuries, which are serious. In the facts and circumstances of the case, a further sum of **Rs.25,000/-** is granted. 11. The learned counsel for the appellant brought the attention of this Court to the documents he produced along with I.A.No.2 of 2014, which indicates subsequent treatment availed by him. Even though it was contended that the said documents were pertaining to the treatment availed by him in connection with the injuries sustained in the accident, there is nothing to MACA.No.462/2014 10 indicate that all the said documents relate to the same. The said documents are pertaining to the treatment availed by him in the year 2013 whereas the accident occurred in the year 2010. In the said documents, there is a reference to the treatment he underwent for other diseases as well. Therefore, I am of the view that the said documents cannot be accepted in the absence of any specific evidence to show that those are treatments availed by the appellant for the treatment in connection with the injuries sustained in the accident. Thus, the total compensation receivable by the appellant in addition to the amount already awarded by the Tribunal is fixed as Rs.2,14,700/[128700+36000+25000+25000] (Rupees two lakhs fourteen thousand and seven hundred only). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 03.7.2013 in O.P.(MV). No.1529 of 2010 passed by the Additional Motor Accidents Claims Tribunal, Kottayam, to the extent it attributed 5% contributory negligence on the part of the appellant, is hereby set aside. It is held that the accident occurred due to the negligence of the 1[st] respondent alone, and since the vehicle was covered with an insurance policy issued by the 2nd respondent, both the respondents are held liable to pay the compensation. MACA.No.462/2014 11 Further, the quantum of compensation is hereby modified by awarding a further amount of Rs.2,14,700/- (Rupees two lakhs fourteen thousand and seven hundred only). The said amount shall be deposited by the 2[nd] respondent Insurance Company along with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. In addition to the amount referred to above, the 2[nd] respondent shall deposit 5% of the amount awarded by the Tribunal, which was denied consequent to the contributory negligence attributed to the appellant. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/25.11.23