SRENI T.P. v P.A KOYA, M.M. MUSTHAFA and ICICI LOMBARD GENERAL INSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 18TH DAY OF SEPTEMBER 2017/27TH BHADRA, 1939 MACA.No. 20 of 2013 () ----------------------- OPMV 245/2010 of M.A.C.T.,KOZHIKODE APPELLANT/APPELLANT: -------------------------------------- SREENI T.P., S/O.GOVINDAN NAIR, RESIDING AT THARIPPAPOYIL HOUSE P.O.MYLALLAMPPARA, VIA PUTHUPPADY, THAMARASSERY, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN ## RESPONDENT(S)/RESPONDENTS: --------------------------------------------- 1. P.A KOYA, S/O.ALAVIKUTTY, RESIDING AT M/S.COORG COFFEE LINKS O.M.COMPLEX, MAIN ROAD, SIDAPUR, KODGU, KARNATAKA 571 218. 2. M.M.MUSTHAFA, S/O.MUHAMMED, MUNDAKKODE HOUSE, KARUMAD AMMATHI P.O., VEERAJ PETTA, MADIKKERI, KARNATAKA 571 218. 3. ICICI LOMBARD GENERAL INSURANCE CO.LTD., UGGAPPA COMMERCIAL COMPLEX, 2ND FLOOR, KOHINNOOR ROAD, MADIKKERI, KARNATAKA 571 218. ## R3 BY ADV. SRI.K.B.RAMANAND ADV.K B AJITH VERMA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - M.A.C.A. No.20 of 2013 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of September 2017 ## JUDGMENT ## **C.T.Ravikumar J.** , The appellant was the petitioner in O.P.(M.V.) No.245 of 2010 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. 2. In a collision between a motor cycle bearing reg. No.KL-10/Q 134 and a lorry bearing reg No.KA-12-8562, the petitioner who was the pillion rider on the motor cycle, got injured. On sustaining serious injuries, he was taken to Taluk Head Quarters Hospital, Vythiri and from there, he was referred to the Medical College Hospital, Kozhikode. M.A.C.A. No.20 of 2013 2 The injuries sustained in the accident resulted in permanent disability. It was in the said circumstances that the above said claim petition was filed seeking compensation for Rs.4,00,000/-, under Section 166 of the Motor Vehicles Act. As per the impugned award, the Tribunal granted an amount of Rs.2,16,641/- as compensation, with interest at the rate of 7% per annum, from the date of petition till the date of realisation. The petitioner seeks for enhancement of the said quantum of compensation. 3. We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the third respondent Insurance Company. 4. Despite service of notice on respondent Nos.1 and M.A.C.A. No.20 of 2013 **==> picture [7 x 9] intentionally omitted <==** 2, they have not chosen to enter appearance and contest the matter. It is also relevant to note in this context that before the Tribunal also, they remained ex-parte. Though issuance of notice by the Tribunal directing them to produce the permit of the offending vehicle, i.e.,the lorry, as also the driving license of the 2[nd] respondent, the driver of the said lorry at the time of accident, they had failed to produce those documents. Drawing adverse inference, in such circumstances, the Tribunal held that there was no valid permit to the offending vehicle at the time of the accident and further that the 2[nd] respondent was not having any valid driving license, the class of vehicle to which the offending vehicle belong, at the time of accident. M.A.C.A. No.20 of 2013 4 Consequently, the respondent Nos.1 and 2 were held jointly and severally ordered to compensate the petitioner. The Tribunal directed the third respondent to satisfy the award, but with liberty to recover the amount paid to satisfy the award **.** Despite such finding and granting of liberty to the third respondent to effect the recovery of amount paid for satisfying the award, respondent Nos.1 and 2 had failed to enter appearance and contest the matter, even after receipt of notice. That apart, they did not prefer any independent appeal against the impugned order or take cross-objection in this appeal. In such circumstances, the direction and liberty granted by the Tribunal to the third respondent to satisfy the award and then to realise the amount paid for M.A.C.A. No.20 of 2013 5 satisfying the award, have to be maintained. 5. We will now proceed to consider the question whether the appellant is entitled to get enhanced compensation. The learned counsel appearing for the appellant submits that the denial of the just compensation was owing to the erroneous estimation of the monthly income by the Tribunal. In elaboration of the said contention, it is submitted that the Tribunal ignored the specific averments in the claim petition, that the appellant, aged 32 years at the time of accident, was a coolie and he was earning Rs.8,000/- per month. The learned counsel submits that ignoring such averment, the Tribunal fixed the monthly income of the appellant/injured as Rs.3,500/- per M.A.C.A. No.20 of 2013 **==> picture [7 x 9] intentionally omitted <==** month for calculation purpose. Evidently, in this case the appellant has not produced any evidence, either orally/documentary, to establish his averments regarding the occupation and income. In the said circumstances, it cannot be said that the Tribunal went wrong in fixing the monthly income notionally for calculation purpose. Even then, the question is whether the fixation of the monthly income as Rs.3,500/- is erroneous and liable to be interfered with. Twin factors assumes relevant in this context. The accident had occurred in the year 2009. The appellant was then aged only 32 years. We are of the considered view that in the absence of evidence regarding the occupation and income, in the matter of fixation of the M.A.C.A. No.20 of 2013 7 monthly income of a person who claimed that he was a coolie, the decision of the Honourable Apex Court in **Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951) should act as guidance. In that decision, in respect of a coolie, who met with an accident in the year 2004, the honourable Apex Court fixed the monthly income as Rs.4,500/- for calculation purpose. Taking into account the above aspects as also the decision in **Ramchandrappa** 's case (supra), we are inclined to fix the monthly income as Rs.6,500/notionally for calculation purpose. 6. There is no dispute regarding the assessment of disability made by the Tribunal for calculation purpose and M.A.C.A. No.20 of 2013 8 also the adoption of the multiplier as 16. In such circumstances, a re-assessment of the compensation for permanent disability is required only by substituting the monthly income re-fixed by us. On such re-assessment, the amount payable to the appellant towards compensation for permanent disability will be Rs.3,12,000/-. After deducting the compensation already granted by the Tribunal under the said head, viz., Rs.1,68,000/-, the additional compensation payable to the appellant will be Rs.1,44,000/-. It is granted. It is to be noted that even after assessing the permanent disability as 25% and noting the nature of the injuries sustained by the appellant, the Tribunal granted only an amount of Rs.5,000/- towards the loss of amenities. M.A.C.A. No.20 of 2013 9 We ween that the amount granted towards loss of amenities requires modification. Paragraph No.8 of the judgment itself would reveal that in the accident in question the appellant sustained the following injuries:- “Type III open fracture both bone (left) leg and fracture fibula U/3 and lacerated wound over leg and knee with patellar tendon cut.” The Tribunal has already fixed the disability incurred owing to the injuries sustained in the accident, as 25%. It is thus evident that for quite a long time the appellant must not have been in a position to enjoy his life as before. Certainly in such circumstances, he has to be compensated adequately for the loss of amenities. We are of the view M.A.C.A. No.20 of 2013 **==> picture [13 x 9] intentionally omitted <==** that an amount of Rs.25,000/- can be granted additionally under that head, it is granted. Towards loss of earning the Tribunal has granted only an amount of Rs.14,000/- and in that regard, the Tribunal took only a period of four months. In the light of the nature of the injuries, referred hereinbefore and also taking note of the impact of the injuries as revealed from Ext.C1, we are of the view that the period fixed by the Tribunal in that regard also requires interference. We are of the view that the period in that regard should be taken as six months. Hence, based on re-fixed the monthly income, the appellant is entitled to proportionate enhancement towards loss of earning. The amount payable towards loss of earnings, taking into M.A.C.A. No.20 of 2013 **==> picture [13 x 9] intentionally omitted <==** account the aforesaid aspects, is Rs.39,000/-. After deducting the amount already granted by the Tribunal, the appellant is entitled to get an amount of Rs.25,000/additionally. Towards pain and suffering, the Tribunal has granted an amount of Rs.20,000/-. The nature of injuries would reveal that the appellant had to suffer excruciating pain for a long time. Hence, we are inclined to grant Rs.5,000/- more. Taking into account of the nature of injuries as also their impact, we are of the view that the appellant must had the service of a bystander at least for a period of one month. Hence, we grant Rs.200/- per day under that head. Consequently, the appellant will be entitled to get an amount of Rs.6,000/- towards bystander M.A.C.A. No.20 of 2013 12 expenses additionally. 7. In the light of the assessment and re-assessment made by us, the appellant is entitled to get an additional compensation of Rs.2,00,000/-, it is awarded. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till reaslisation. Since we maintained 'pay and recovery' as ordered by the Tribunal, the third respondent Insurance Company is directed to deposit the additional said amount along with interest thereon, within a period of two months from the date of receipt of a copy of this judgment and there will be free to recover the amount paid to satisfy the judgment and award, in full. Before, releasing the amount payable the M.A.C.A. No.20 of 2013 13 Tribunal shall realise the balance court fee payable. In the result, this appeal is allowed as above. There is no order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/19.12.16_ _// True Copy //_ _PA to Judge_