Subramanian s/o Appunni v. Prasad s/o Sivadasan, Ashbindh s/o Sivadasan and The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938 MACA.No. 959 of 2016 () -----------------------AGAINST THE AWARD IN OPMV 1522/2005 of ADDL.M.A.C.T., THRISSUR DATED 19-09-2014 APPELLANT(S)/PETITIONER: ----------------------- SUBRAMANIAN S/O. APPUNNI, AGED 46 YEARS, RESIDING AT POVIL THIRUVAMADATHIL HOUSE, THOLOOR VILLAGE, PARAPPUR DESOM, THRISSUR DISTRICT BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## RESPONDENT(S)/RESPONDENTS: -------------------------- 1. PRASAD S/O. SIVADASAN,RESIDING AT SIVA GEETHAM, MOOKUTHALA, MALAPPURAM DISTRICT, PIN 679 574 2. ASHBINDH S/O. SIVADASAN,RESIDING AT SIVA GEETHAM, MOOKUTHALA, MALAPPURAM DISTRICT, PIN 679 574 3. THE ORIENTAL INSURANCE COMPANY LIMITED, C.K.H BUILDING, THAZHEPPALAM, THIROOR, MALAPPURAM DISTRICT, PIN 676 101 R3 BY ADV. SMT.REKHA NAIR R3 BY ADV. SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.959 OF 2016 ==========================** Dated this the 20[th] day of October, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-petitioner is the appellant. He met with a motor vehicle accident on 22.04.2005 while travelling as a pillion rider on a motor cycle bearing Reg.No.KL-08/V 8560. When he reached Manjulal junction at Guruvayoor, the offending vehicle which is a motor cycle bearing Reg.No.KL-10-J-1449 ridden by the second respondent hit against the said vehicle. Consequently, he fell down and sustained injuries. He remained as an inpatient for a period of nine days and the injuries sustained by him resulted in permanent disability. It was in such circumstances that he moved the claim petition seeking a total compensation of `2,00,000/-. The said claim petition was jointly enquired into along with O.P.(MV).No.1529 of **M.A.C.A.959/2016** 2 2005. The evidence on the side of the appellant consisted of the oral testimony of the doctor who issued Ext.A8 disability certificate as PW1 and the documentary evidence of Exts.A1 to A13. No evidence whatsoever was adduced on the side of the respondents. Upon considering the rival contentions and the evidence on record, the Tribunal passed an award for a total compensation of `63,750/- with interest at 9% per annum from the date of the petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. 2.We have heard Sri.T.C.Suresh Menon, the learned counsel for the appellant and Smt.K.S.Santhi, the learned counsel appearing for the third respondent-insurance company. It is submitted that there is no dispute regarding the liability of the third respondent to indemnify the insured-owner of the offending vehicle. In such circumstances, it is absolutely unessential to issue notice to respondents 1 and 2. Therefore, issuance of notice to them is dispensed with. Upon hearing **M.A.C.A.959/2016** 3 the learned counsel on both sides, we are of the view that this appeal can be disposed of, at the admission stage itself. 3.The main grievance of the appellant is regarding the fixation of the monthly income. The learned counsel for the appellant submitted that ignoring the averments in the claim petition that the appellant was a marble and granite worker and was earning `5,000/per month, the Tribunal fixed the monthly income notionally at `3,000/-. It is further submitted that a perusal of the schedule of compensation given in the impugned award would reveal that the Tribunal granted only meagre amounts under the heads loss of earning, compensation for loss of convenience and enjoyment in life, pain and suffering etc. It is in the said circumstances that the appellant claims for upward modification of compensation granted under the aforesaid heads. 4.On the contrary, the learned counsel for the third respondent **M.A.C.A.959/2016** 4 submitted that since the appellant had not adduced any evidence to establish his occupation and income, the notional fixation of monthly income for calculation purpose and its fixation as `3,000/- cannot be said to be unreasonable. That apart, it is contended that the schedule of compensation given in the impugned award itself would reveal that adequate compensation has been granted under all heads and therefore, according to him, no appellate interference is warranted. 5.Having heard the rival submissions and perusing the impugned award, we are of the view that the appellant is entitled to enhancement of compensation under certain heads. Firstly, we will consider whether the fixation of the monthly income notionally invites any interference. True that, the appellant had taken up contentions to the effect that he was a marble and granite worker and was earning `5,000/- per month. However, he had failed to adduce any evidence to establish the said averments. In such circumstances, we are of the view that the Tribunal is justified in fixing the monthly income **M.A.C.A.959/2016** 5 notionally for calculation purpose. But at the same time, taking into account the fact that the accident occurred on 22.04.2005 and the appellant was then aged only 35 years and also in the light of the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236],** we are of the view that even on such failure on the part of the appellants -claimants, the Tribunal ought to have fixed the monthly income as `4,500/-. In such circumstances, we fix the monthly income of the appellant as `4,500/-, for calculation purpose. The learned counsel for the appellant contended that despite the production of Ext.A8 disability certificate and the examination of the doctor as PW1, the Tribunal declined to accept the entire percentage of disability recorded thereunder without assigning any specific reason. In Ext.A8, the permanent disability of the appellant was assessed as 10%. However, the Tribunal took only 6% disability, for calculation purpose. On going through the impugned award, it is evident that no reason whatsoever has been given by the Tribunal for **M.A.C.A.959/2016** 6 reducing the percentage of disability. We do not find any reason or justification for such an assessment of percentage of disability. In such circumstances, the entire percentage of disability certified under Ext.A8 is taken for assessing compensation for permanent disability. The multiplier was identified with reference to the age of the appellant on the date of the accident. In such circumstances, on re-assessment of compensation under the head permanent disability with re-fixed monthly income and percentage of disability viz., 10%, the appellant would be entitled to get an amount of `86,400/-. The Tribunal already granted an amount of `34,560/-. In such circumstances, the appellant is granted an amount of `51,840/- more under the said head. Based on the re-fixed monthly income, the appellant is entitled to get proportionate increase towards compensation for loss of earning. Accordingly, an amount of `4,500/- is granted under that head. The nature of the injuries sustained by the appellant and the percentage of disability incurred by him constrain us to hold that the appellant is entitled to get enhanced compensation under the head 'pain and **M.A.C.A.959/2016** 7 suffering' and compensation for loss of amenities. We are inclined to grant `5,000/- towards pain and suffering and `12,000/- towards loss of amenities and enjoyment in life. The appellant claimed an amount of `500/- towards damage to clothing and the Tribunal granted only `250/- We are inclined to grant `250/- more under that head. In view of the discussions as above, the appellant will be entitled for an additional compensation of `73,590/- which is rounded off to `73,600/-. The additional compensation will bear 8% interest from the date of the petition till realisation. The third 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. There will be no order as to costs. ## **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **Sd/-** ## **K.P.JYOTHINDRANATH (JUDGE)** ## **spc/** # **M.A.C.A.959/2016** 8