Sreedharan K. v. Jithin and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938 MACA.No. 3085 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 1147/2011 of M.A.C.T., THALASSERY DATED 17.12.2015 APPELLANT(S)/PETITIONER: ----------------------- SREEDHARAN K., S/O RAMUNNI, AGED 62 YEARS, COOLIE WORKER, SIVAJI NIVAS, KOTHERI P.O, MATTANNUR, KANNUR. ## BY ADV. SRI.RAJESH SUKUMARAN ## RESPONDENT(S)/RESPONDENTS: -------------------------------------- 1. JITHIN, - S/O. BHASKARAN, AGED 22 YEARS, KORAMBETH HOUSE, KEEZHALLUR P.O, ELAMBARA, KANNUR- 670 595. (OWNER- CUM DIRVER OF THE JEEP BEARING NO KL 13/B-2302) 2. UNITED INDIA INSURANCE CO. LTD, CHOVVA BRANCH, CALTEX JUNCTION, KANNUR -670 001 (INSURER OF THE JEEP BEARING NO KL 13/B-2302) POLICY NO 100 805/31/0802/00002115. 3. MADHUSOODHANAN P.P, S/O. MADHAVAN NAMBIAR, AGED 43 YEARS, KOVVUR P.O, PATTANNUR, KANNUR 670 595. - (OWNER -CUM- DIRVER OF THE MARUTHI CAR BEARING NO. KL 13/K3171) 4. NATIONAL INSURANCE COMPANY LTD, KANNUR 670 001. (INSURER OF THE MARUTHI CAR BEARING NO. KL 13/K-3171) POLICY NO. 2493438 PERIOD FROM 12-09-2007 TO 11-09-2008 ## R4 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & DEVAN RAMACHANDRAN, JJ. ========================== M.A.C.A. No.3085 OF 2016 ==========================** Dated this the 13[th] day of October, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-claimant preferred this appeal feeling dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Thalassery in O.P.(MV).No.1147 of 2011. He filed the said claim petition under section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 18.05.2008. On that day, he was travelling in a car bearing Reg.No.KL-13K/3171 driven by the third respondent, through Mattannur-Chalod when it collided with a jeep bearing Reg.No.KL-13B/2302, driven by the first respondent. It was alleging rashness and negligence in driving on the part of the first and third respondents as the cause of the accident that the claim petition **M.A.C.A.3085/2016** 2 has been filed. They were also the owners of the concerned vehicles. The insurer of both the vehicles were also made parties to the claim petition. 2.Before the Tribunal, the appellant got himself examined as PW1 besides getting marked Exts.A1 to A6. No evidence, either oral or documentary, was tendered by the respondents. While being examined, the appellant deposed that the accident had occurred due to the negligence on the part of the third respondent. After hearing the rival contentions and appreciating the evidence on record, the Tribunal found that the accident had occurred due to the rash and negligent driving of the third respondent and passed the impugned award for a total compensation of `70,600/- against a claim of `1,50,000/-. Since the fourth respondent admitted the insurance coverage of the offending vehicle, the fourth respondent was held liable to indemnify the third respondent. As noticed hereinbefore, it is dissatisfied with the quantum of compensation and seeking for its enhancement that the captioned appeal has been filed. **M.A.C.A.3085/2016** 3 3.We have heard Sri.Rajesh Sukumaran, the learned counsel for the appellant and Sri.M.A.George, the learned counsel appearing for the fourth respondent. 4.The rival contentions raised before us would reveal that the only point for consideration is whether the prayer for enhanced compensation is a rightful claim? No other issues are in dispute. Therefore, we are inclined to dispose of this appeal at the admission stage itself as notice to the other respondents is absolutely unessential. 5.The learned counsel for the appellant submitted that the Tribunal erroneously fixed the monthly income of the appellant at `4,000/- disregarding his claim that he was a salesman and was earning `5,000/- per month. It is the further submission that though Ext.A6 disability certificate certifying disability of the appellant as 1.5% was produced, the Tribunal unreasonably declined to accept and act upon the same and consequently, denied compensation for permanent **M.A.C.A.3085/2016** 4 disability. The learned counsel further submitted that the award under the other heads of pain and suffering, loss of amenities and loss of earning is inadequate and the appellant deserves higher compensation under those heads. 6.Per contra, the learned counsel for the fourth respondent submitted that the appellant had failed to adduce any evidence to establish his occupation and income. Ergo, the notional fixation of the monthly income by the Tribunal as `4,000/- calls for no further enhancement, it is submitted. According to the learned counsel, a glance at the schedule of compensation given in the impugned award itself would reveal that the Tribunal had granted adequate compensation under all heads and therefore, no appellate interference is called for. 7.Having heard the rival submissions and perusing the impugned award, we are of the view that there is some force regarding the contention of the learned counsel for the appellant that the **M.A.C.A.3085/2016** 5 Tribunal erred in fixing the monthly income. At the same time, we ween that the grievance against the notional fixation of the income is without rhyme or reason as the appellant had not adduced any evidence to establish his claim regarding occupation and income. In other words, according to us, the Tribunal has rightly decided to fix the monthly income notionally for calculation purpose. But then, the question is whether the Tribunal has fixed it reasonably reckoning the relevant factors. The accident occurred on 18.05.2008 and the appellant was then aged 62 years. We are of the view that in the matter of fixation of monthly income notionally for calculation purpose, in the absence of tangible data supported by evidence, the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** ought to have been taken as guidance. In that case, in respect of a coolie who met with an accident in the year 2004, the Apex Court fixed the monthly income notionally for calculation ` purpose as 4,500/-. The accident in question occurred about four **M.A.C.A.3085/2016** 6 years since the accident involved in **Ramachandrappa** 's case. The appellant was then aged 62 years. Taking into account such factors and guided by the decision in **Ramachandrappa** 's case, we are of the view that it is only proper and reasonable to accept the claim of the appellant regarding the monthly income. Accordingly, `5,000/- is fixed as the monthly income for calculation purpose. Based on such fixation, the appellant is entitled to get proportionate increase in compensation under the head loss of earning. Accordingly, for the period taken in that regard by the Tribunal, the appellant would be entitled to get `5,000/- additionally and it is granted. 8.As noticed hereinbefore, the appellant got a case that injuries sustained by him in the accident resulted in permanent disability. It is to establish the same that he had produced Ext.A6 disability certificate. Ext.A6 is not a certificate issued by the duly constituted medical board and the appellant had not examined the doctor who issued Ext.A6. In such circumstances and in the light of the decision of the Hon'ble Apex Court in **Raj Kumar v. Ajay Kumar [2011 (1)** **M.A.C.A.3085/2016** 7 **KLT 620],** the Tribunal cannot be said to have committed an error in declining to accept and act upon Ext.A6. On considering grievance of the appellant as relates inadequacy of award under other heads, we are of the considered view that the appellant had failed to bring out any ground for further enhancement. In the result, the appellant is entitled to get an additional compensation of `5,000/-. It is awarded. The said amount will carry interest @ 8% per annum from the date of the petition till realisation. The fourth respondent is directed to deposit the said amount along with interest thereon within a period of one month from the date of receipt of a copy of this judgment. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/DEVAN RAMACHANDRAN (JUDGE)** **spc/** **M.A.C.A.3085/2016** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.3085/2016** 9 **JUDGMENT September, 2010**