Sudheesh George v. Prajavathy S.N. and The Divisional Manager, National Insurance Company Ltd., MACA No.320 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 14TH DAY OF MARCH 2017/23RD PHALGUNA, 1938 **MACA.No. 320 of 2008 ( ) -------------------------** AGAINST THE AWARD IN OPMV 193/2005 of MACT,THODUPUZHA DATED 31.07.2007 APPELLANT/PETITIONER: ---------------------- SUDHEESH GEORGE~S/O.GEORGE, AGED 26 YEARS PUTHUSSERY HOUSE, MULLARINGADA KARA, VANNAPPURAM VILLAGE. BY ADVS.SRI.P.VIJAYA BHANU SRI.THOMAS J.ANAKKALLUNKAL RESPONDENT(S): -------------- 1. PRAJAVATHY.S.N, PROPRIETOR, BOOMI ELECTRONICS, XXXIX/'3897,PALLIMUKKU JUNCTION, ERNAKULAM. 2. THE DIVISIONAL MANAGER THE NATIONAL INSURANCE COMPANY LTD, STATUE JUNCTION, TRIPUNITHURA. R2 BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & A. M. BABU, JJ.** .............................................................................. **M.A.C.A.No.320 OF 2008** ......................................................................... **Dated this the 14[th] March , 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Inadequacy of the compensation awarded by the Tribunal in O.P.(MV)No.193 of 2005 of the M.A.C.T., Thodupuzha made the claimant to approach this Court by filing this appeal seeking for enhancement of compensation. 2. The case projected by the appellant is that on 28.01.2005, the appellant was riding a motor cycle bearing No.TN.28W/8427 and while so, a car, owned by the first respondent and insured by the second respondent, came to the wrong side and knocked him down causing serious injuries to him, which led to the claim petition before the Tribunal. 3. The first respondent chose to remain ex -parte. The claim was contested by the Insurance Company on quantum and negligence. The evidence adduced before the Tribunal consists of deposition made by the claimant as P.W.1 and the documents produced and marked as Exts.A1 to A9. No evidence was **2** ## **M.A.C.A.No.320 OF 2008** adduced, either oral or documentary, from the part of the respondent Insurance Company. After analysing the materials on record, the Tribunal held that the claimant was also charge sheeted by the Police, as borne by Ext.A4 for riding the motor cycle without any valid driving licence and further that there was negligence on his side as well. Accordingly fixation of negligence was effected in the ratio of 75:25, between the driver of the car and the claimant/appellant/rider of the motor cycle. Though a submission is made by the learned counsel for the appellant with reference to the law declared by the Apex Court in _**National Insurance Co. Ltd vs. Swaran Singh and others**_ **(AIR 2004 SC 1531),** this Court finds that violation of the statutory/Policy condition has been clearly established and as such, fixation of negligence made by the Tribunal, does not warrant any interference. 4. The injuries sustained by the appellant, as discussed in paragraph 9 of the award are in the following terms: - _“1. Laceration on anterio lateral aspect of right_ - _ankle with multiple tendon injury and exposed talus bone_ _2. Abrasion on right side of face_ _3. Abrasion on right shoulder anteriorily.”_ **3** ## **M.A.C.A.No.320 OF 2008** The consequences have been discussed by the Tribunal in paragraph 10 of the Award. The disability stated as suffered by the claimant/appellant has been certified to an extent of 16% by the Medical Board as per Ext.A9. But the Tribunal has reckoned only 6% as the permanent disability; for not examining any doctor, who was a member to the Medical Board. As against the claim of the appellant that he was a 'JCB driver' earning a monthly income of Rs.15000/-, a notional sum of Rs.2000/- was reckoned to fix the compensation for permanent disability. 5. The amounts awarded by the Tribunal under different heads, as given in paragraph 13 of the Award are in the following terms: |**Head**|**Amount**<br>**(Rs.)**| |---|---| |Loss of earning|5000| |Transportation expenses|1000| |Extra nourishment|1500| |By-stander expenses|2000| |Treatment expenses|22490| |Pain and sufferings|12000| |Permanent disability<br>(2000 x 12 x 17 x 6/100)|24480| |Total|**73470**| **M.A.C.A.No.320 OF 2008** **4** 25% of the total compensation as above, has been ordered to be deducted towards the proven negligence on the part of the claimant and the balance of Rs.55,200/- has been ordered to be satisfied with interest at the rate of 8% per annum from the date of filing the claim petition, till satisfaction. This is sought to be enhanced in this appeal. 6. During the course of hearing, the learned Counsel for the appellant concedes that no material was produced before the Tribunal to show that the appellant/claimant was having the requisite licence to drive the JCB, to eke out his living as a JCB driver. Admittedly, no licence is produced, even to drive the motor cycle or a light motor vehicle or a transport vehicle. The appellant has not chosen to produce any such licence/evidence even before this Court. In the absence of any material to substantiate the fact that the appellant/claimant was having any technical qualification or such other traits, to reckon higher income to an appropriate extent, this Court finds that only a notional income can be fixed for working out the compensation for disability. **M.A.C.A.No.320 OF 2008** **5** 7. However, it is to be noted that the accident was in the year 2005. The claimant was aged 26. Even if he was working as a general worker as on that date, he could have earned much more income than the extent reckoned by the Tribunal, which is abysmally on the lower side, having taken only Rs.2000/-. We find it appropriate to double the income and reckon Rs.4000/as the notional monthly income to work out the compensation. 8. Similarly, there is absolutely no rhyme or reason for having reduced the extent of disability from 16% certified by the Medical Board to just '6%', merely for not examining the Doctor. We have gone through the contents of the said certificate and we find it appropriate to reckon the entire 16% fixed by the Medical Board. On re-working the compensation for disability, it comes to Rs. **1,30,560/- [4000 x 12 x 17 x 16/100]** . After deducting the amount awarded by the Tribunal, the balance - payable under the said head comes to **Rs.106080/** [i.e.130560-24480]. The amount awarded towards 'pain and suffering' is only Rs.12000/-. Considering the nature and extent of injuries and also the disability, we find it appropriate to re-fix it as Rs.25000/-. Thus the balance payable under the above head **M.A.C.A.No.320 OF 2008** **6** comes to **Rs.13000/-.** The treatment expense, awarded by the Tribunal is Rs.22490 **/-** which does not warrant any interference. Same is the position with regard to Bystander's expenses of Rs.2000/- awarded by the Tribunal as the hospitalization was only for a period of 15 days. This Court also does not intent to interfere with the transportation expenses of Rs.1000/- or the extra nourishment to the tune of Rs.1500/- awarded by the Tribunal. But the loss of earning requires modification. Based on the enhanced monthly income reckoned, for a period of four months, it becomes Rs.16000/- instead of Rs.5000/-. Hence the balance payable under the said head comes to **Rs.11000/-** 9. This Court finds that no amount was awarded by the Tribunal towards 'loss of amenities and enjoyment in life'. Considering the age of the appellant, the nature of the injuries, the extent of disability certified at 16% and the adverse circumstances resulted, we find it appropriate to fix **Rs.25000/-** as compensation payable under this head. Thus, the total balance compensation payable comes to Rs.1,55,080/- . Since we have not interfered with fixation of negligence, deduction of 25% is necessary because of proven negligence on the part of **7** ## **M.A.C.A.No.320 OF 2008** the appellant/claimant. Accordingly, the actual balance amount of compensation payable to the appellant comes to Rs. **116310/(Rupees one lakh sixteen thousand thee hundred and ten only)** [155080 x 75/100]. This amount, after minusing the amount, if any, deposited by the Insurance Company, shall be deposited before the Tribunal with interest at the rate of 9% per annum from the date of the claim petition, till satisfaction, which shall be done at the earliest, at any rate, within 'one month' from the date of receipt of a copy of the judgment. The appeal stands allowed to the above extent. **P.R. RAMACHANDRA MENON, JUDGE** **A.M. BABU, JUDGE** lk