Sudheesh Kumar v. The Manager, Sri Ram General Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 ``` ``` MACA NO. 2198 OF 2013 ``` ``` AGAINST THE AWARD DATED 15.06.2013 IN O.P(MV) NO.832/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## `- APPELLANT/PETITIONER :` ``` SUDHEESH KUMAR S/O.KUNJAN, CHALAKKAL HOUSE, KULAITTIKKARA, AMBALLOOR VILLAGE, NOW RESIDING AT NEDUNGALIL HOUSE, KADAPPATTOOR P.O., PALA. ``` ``` BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR ``` ## `- RESPONDENT/2ND RESPONDENT :` ``` THE MANAGER SRI RAM GENERAL INSURANCE COMPANY LTD, E-8, EPIP, RIICO, SITAPURA, JAIPUR, RAJASTHAN, PIN-302 022, (HEAD OFFICE), AZAD TOWER, AMMANKOVIL CORSS ROAD, ERNAKULAM-682 035. ``` ``` BY ADVS. jacob mathew p MATHEWS JACOB (SR.)(M-186) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.2198 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 27[th] day of October, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Pala (for short ‘the Tribunal’) on 15.06.2013 in O.P.(MV) No.832 of 2010. 2. The appellant is the petitioner who had filed the above Original Petition before the Tribunal seeking for compensation for the injuries sustained by him in the motor accident. The Tribunal has arrived at a sum of Rs.1,77,300/- as the compensation payable to the appellant and an award was passed to the effect of directing the second respondent to deposit the same with interest at the rate of 7.5% per annum within three months from the date of the award and to pay interest at the rate of 9% per annum, on the deposit of the sum being defaulted. Challenging the said award the appeal on hand is filed. 3. Parties to the appeal will hereinafter be referred to as the petitioner and the second respondent in accordance with their status before the Tribunal in the above Original Petition. ``` MACA No.2198 of 2013 ``` ``` 3 ``` 4. It is urged by Sri.Thomas Abraham, the learned counsel for the petitioner that Rs.5,000/- fixed by the Tribunal as the monthly income on a notional basis in the year 2010 is too low. According to him, the petitioner was a construction worker and when examined as PW1 before the Tribunal he claimed to have a monthly income of Rs.8,000/- and that ought to have been fixed as his monthly income. 5. According to the learned counsel, the petitioner had undergone inpatient treatment for 21 days following the grievous injuries sustained in the motor accident of which discussion is made in paragraph 10 of the impugned award on the basis of Ext.A4 wound certificate, Ext.A5 discharge card and Exts.A6 to A8 O.P tickets. According to him, Ext.X1, was marked in evidence where his disability on account of the injuries sustained in the motor accident is certified as 29.02%. 6. It is contended by the learned counsel that though Ext.X1 certificate issued by the Medical Board is marked in evidence on the side of the petitioner, the Tribunal failed to take the disability assessed as such but took only 7%, which according to ``` MACA No.2198 of 2013 ``` ``` 4 ``` him is improper and incorrect. The learned counsel has pointed out that under the head transportation expenses, damages to clothing, extra nourishment, bystander expenses, pain and suffering and permanent disability, the compensation assessed by the Tribunal being too low and disproportionate, interference is required to make it just and reasonable. According to him, the Tribunal failed to grant compensation for loss of amenities and enjoyments in life. It was also pointed out by the learned counsel that the multiplier for the purpose of calculation of compensation for disability was adopted as 15 in the place of 16, the correct multiplier. The impugned award was canvassed to be modified on the basis of the arguments advanced. 7. Sri.P Jacob Mathew, the learned Senior Counsel for the second respondent has contended that materials are not made available to establish that the petitioner at the relevant time of the motor accident, was working as a construction worker and earning Rs.8,000/- as monthly income. According to him, when evidence to establish those aspects are lacking, the Tribunal was constrained to fix Rs.5,000/- as the monthly income notionally. ``` MACA No.2198 of 2013 ``` ``` 5 ``` The date of birth of the petitioner being 16.04.1974 he must be aged 36 years at the relevant time of accident and the correct multiplier will be 16. 8. It is noticed from Ext.X1 that assessment of 29.02% disability was based on fracture of patella, which was not caused to the petitioner in the motor accident. None of the medical documents received in evidence states that an injury of the nature was suffered by the petitioner. Therefore, there is every reason to hold that 29.02% of disability certified by the Medical Board in Ext.X1 is on the higher side. It is contended that just and reasonable compensation having been awarded by the Tribunal under various heads, interference is totally unwarranted 9. From the discussion of injuries in paragraph 10 of the impugned award this Court notices that the petitioner had sustained lacerated wound on the lower leg, bleeding from the mouth and punctured wound above left knee laterally and in the investigation supra clavicular fracture of left femur and fracture of right clavicle were diagnosed. The petitioner had undergone inpatient treatment for 21 days at Medical College Hospital, Kottayam and thereafter at ``` MACA No.2198 of 2013 ``` ``` 6 ``` Medical Trust Hospital, Ernakulam. Medical bills marked in evidence as Ext.A15 series disclose that Rs.54,386/- was spent on treatment and the Tribunal has awarded Rs.54,500/- as compensation for medical expenses. It is also noticed from the discussion of the Tribunal in the impugned award that after inpatient treatment for 21 days, the petitioner had also availed treatment in the outpatient department on several occasions till April, 2011. 10. This Court is inclined to take a higher sum as the monthly income of the petitioner on the basis of _**Ramachandrappa**_ _**v. Royal Sundaram Alliance Insurance Co.Ltd**_ **[(2011) 13 SCC 236]** . The accident being occurred in the year 2010, Rs.7,500/appears to be a reasonable sum to be fixed as monthly income. Compensation for loss of earning was assessed by the Tribunal by taking four months as the period during which the petitioner was unable to attend work and earn income. This Court finds on the basis of the injuries, that a period of eight months if considered is just and reasonable. Compensation for loss of earning when assessed with Rs.7,500/- as the modified monthly income and the ``` MACA No.2198 of 2013 ``` ``` 7 ``` period as eight months, the petitioner will get Rs.60,000/- as compensation. Rs.20,000/- have already been awarded by the Tribunal and therefore that when adjusted in the sum arrived at now, the petitioner will get Rs.40,000/- as additional compensation. 11. It is noticed that the petitioner had undergone treatment primarily at Medical College Hospital, Kottayam and later at Medical Trust Hospital, Ernakulam. He had inpatient treatment for 21 days and outpatient treatment till April, 2011. Therefore, he must have incurred expenses for transportation. It is true that he has not produced any documents to substantiate it. Considering the duration of treatment, this Court is inclined to award Rs.4,000/under the head transportation. Rs.2,000/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.2,000/- as additional compensation under that head. Rs.1,000/- stands awarded under the head extra nourishment being low, this Court is inclined to enhance it to Rs.3,000/-, so that the petitioner will get Rs.2,000/- as additional compensation. Under the head bystander expenses, the Tribunal has already awarded Rs.4,200/- by taking Rs.200/- per day for 21 days. This Court is inclined modify the sum ``` MACA No.2198 of 2013 ``` ``` 8 ``` to Rs.250/-, so that Rs.5,250/- is arrived at. The sum stands awarded by the Tribunal when adjusted the petitioner will get Rs.1,050/- as additional compensation under that head. Under the head pain and suffering against the claim of Rs.50,000/- the Tribunal has awarded Rs.20,000/-, which in the view of this Court is too low. The petitioner had sustained supra clavicular fracture of left femur and fracture of right clavicle and in the above context, this Court finds justified in awarding Rs.30,000/- as compensation for pain and suffering. Therefore, the petitioner will get Rs.10,000/as additional compensation. 12. It is found that the petitioner had sustained a punctured wound on his left knee. As revealed from Ext.A5, fracture of left femur was treated with fixation of screws and fracture of clavicle was treated with clavicular brace. At the time of discharge from the Hospital, medication, quadriceps exercises for strengthening muscles and knee mobilisation were advised to continue for a week. In the review after the above period also medication and the same exercise were directed to be continued. Due to difficulty in moving knee, knee mobilisation exercises were suggested. The ``` MACA No.2198 of 2013 ``` ``` 9 ``` petitioner had 3.15 mm shortening of left leg and knock knee deformity of left femoral condyle, ankylosis of left knee and malunion of right clavicle. Knock knee deformity was likely to be caused to the left femoral condyle due to the injuries caused to his left patella. Therefore, the Tribunal is unjustified in discarding that aspect for the reason that the petitioner has not sustained injury to the patella. 13. The Medical Board’s assessment of disability of the petitioner cannot be found fault with and the Tribunal went infirm in doubting it’s correctness. Since the assessment is supported by cogent reasons, this Court is inclined to take 29.02% itself for computation of compensation. Tribunal has awarded Rs.12,600/towards loss of earning capacity but, failed to award compensation for loss of amenities and enjoyments in life. 14. The learned counsel for the second respondent has pointed out that the date of birth of the petitioner being 16.04.1974, his age at the relevant time of the accident is 36 years. As per _**Sarla Verma v. Delhi Transport Corporation**_ [2010 (2) KLT 802 (SC)], the multiplier for a person upto the age of 36 years is 16. ``` MACA No.2198 of 2013 ``` ``` 10 ``` Therefore, ‘15’ stands adopted by the Tribunal needs to be substituted by ‘16’. When compensation for disability is assessed with Rs.7,500/- the modified monthly income, the multiplier as 16 and the disability as 29.02%, the petitioner will get Rs.4,17,888/(Rs.7,500/- x 12 x 16 x29.02%). Rs.63,000/- stands awarded by the Tribunal when adjusted, the petitioner will get Rs.3,54,888/- as compensation under the head disability. Rs.12,600/- stands awarded under the head loss of earning capacity is maintained as compensation granted for loss of amenities and enjoyments in life. 15. In the above re-assessment and modification, Rs.4,09,938/- (Rupees four lakhs nine thousand nine hundred and thirty eight only) is found payable as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, but, excluding the period of delay which already stands exempted by order passed by this Court on 18.11.2021 in C.M.A. No.1/2013. The second respondent shall deposit the said sum with interest fixed as above within a period of two months from the date of receipt of a certified copy of this judgment. ``` MACA No.2198 of 2013 ``` ``` 11 ``` 16. It is found that the claim in the Original Petition was for Rs.3,50,000/- and the Court Fee stands paid for that alone. In the event of the additional compensation now awarded being excessive of the claim, the petitioner is bound to pay Court Fee for the excess amount. The Tribunal shall take necessary steps to realise the additional Court Fee payable while disbursing the compensation in favour of the petitioner. MACA stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** **SMA**