Sunny Thomas v. Krishnamurthy and Siddalinga K.P. and Reliance General Insurance Company

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939** **MACA.No. 561 of 2013 () ------------------------** **OPMV 274/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA.** **.....** ## **APPELLANT/PETITIONER:** **---------------------** **SUNNY THOMAS, AGED 49 YERS, S/O.THOMAS, KANANGAMPOTHIYIL, PAYYAMPALLY PO, MANANTHAVADY TALUK.** ## **BY ADV. SRI.ABRAHAM MATHEW (VETTOOR)** ## **RESPONDENTS/RESPONDENTS:** **------------------------** - ***1. KRISHNAMURTHY, AGED 29 YEARS, S/O.PUTHARAJA NAIK. HAMBAPURA, K.R NAGAR, MYSORE, (DRIVER OF THE LORRY NO.KA-45/1780)(DELETED)** **2. SIDDALINGA.K.P, S/O.PANCHAKSHARI,7TH ROAD, A CROSS R BLOCK, K.R.NAGAR, MYSORE - 571 602, KARNATAKA(OWNER OF THE LORRY NO.KA-45/1780)** **3. RELIANCE GENERAL INSURANCE COMPANY, KOZHIKODE (LOCAL BRANCH OF THE INSURER, MYSORE POLICY NO.1403702334000466** - ***R1 IS DELETED FROM THE ARRAY OF PARTIES AS PER ORDER DATED 18.06.2015 IN IA.1949/2015.** ## **R3 BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** ## **-----------------------------------------------** M.A.C.A.No.561 of 2013 **-----------------------------------------------** Dated this the 19[th] day of June, 2017 ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** . This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Kalpetta, dated 6.10.2012 in O.P.(MV) No.274/2011, an application filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 10.12.2010 while he was travelling in a motor cycle bearing registration No.KL-12/A-1241. When the motor cycle reached the place of accident, it was hit by a lorry bearing registration No.KA-45/1780 driven and owned by the 1[st] and 2[nd] respondents and insured with the 3[rd] respondent. Alleging that the accident occurred due to the rash and negligent driving of the lorry by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of `6,00,000/under different heads. 2. Before the Tribunal Exts.A1 to A9 documents were M.A.C.A.No.561 of 2013 :-2-: marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. Ext.C1 is the disability certificate issued by District Medical Board, which was marked as a Court exhibit. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the lorry by the 1[st] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Under different heads, the Tribunal awarded a total compensation of `2,67,500/- together with interest at the rate of 7.5% per annum from the date of petition, i.e., 19.8.2011 till the date of payment and the 3[rd] respondent insurer was directed to deposit the said amount before the Tribunal with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard the arguments of the learned counsel for the appellant/claimant and also the learned counsel for the 3[rd] M.A.C.A.No.561 of 2013 :-3-: respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under different heads warrants any enhancement in this appeal. 7. As we have already noticed, the accident occurred on 10.12.2010, while the appellant was travelling as a pillion rider in a motor cycle. At the time of accident, the appellant was aged 49 years and he claimed a monthly income of `10,000/- as an agriculturist. However, no reliable materials were placed before the Tribunal in order to substantiate the said claim. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal reckoned the monthly income notionally as `3,000/- and awarded compensation under different heads, which are as follows :- |**_Sl._**<br>**_No._**|**_Head of claim_**|**_Amount claimed_**<br>**_(in Rupees)_**|**_Amount awarded_**<br>**_(in Rupees)_**| |---|---|---|---| ||Income/Notional income|`10,000.00|`3,000.00| |1|Loss of earning (Total)|`60,000.00|`9,000.00| |2|Loss of earning (Partial)|`30,000.00|Nil| |3|Medical and miscellaneous<br>expenses|`3,00,000/-|`92,000.00| |4|Future treatment|Nil|`5,000.00| |5|Bystander expenses|`10,000.00|`3,000.00| M.A.C.A.No.561 of 2013 :-4-: |**_Sl._**<br>**_No._**|**_Head of claim_**|**_Amount claimed_**<br>**_(in Rupees)_**|**_Amount awarded_**<br>**_(in Rupees)_**| |---|---|---|---| |6|Transportation expenses|`20,000.00|`8,000.00| |7|Extra nourishment|`2,000.00|`3,000.00| |8|Damage to clothing, etc.|`1,000.00|`500.00| |9|Pain and suffering|`50,000.00|`15,000.00| |10|Compensation<br>towards<br>injuries|Nil|Nil| |11|Loss of expectation of life|`1,000.00|`5,000.00| |12|Compensation<br>for<br>permanent disability|`1,50,000.00|`1,17,000.00| |13|Mental shock and agony|Nil|Nil| |14|Loss of earning power|`50,000.00|`5,000.00| |15|Loss of amenities|Nil|`5,000.00| |16||Nil|Nil| ||TOTAL|`6,74,000/-<br>limited to<br>`6,00,000/-|`2,67,500.00| 8. At the time of the accident, the appellant/claimant was aged 49 years. The said fact is not in dispute. Though the appellant/claimant claimed to be an agriculturist earning a monthly income of `10,000/-, no reliable materials were produced before the Tribunal to substantiate the said contention. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236]** , the Apex Court fixed the monthly income of a coolie, who met with an M.A.C.A.No.561 of 2013 :-5-: accident in the year 2004, at `4,500/-. Considering the fact that, in the instant case the accident occurred in December, 2010, and at the time of the accident, the appellant/claimant was an able bodied person aged 49 years, we deem it appropriate to re-fix his monthly income notionally at `7,500/- for the purpose of assessing compensation under different heads. 8. The injuries sustained by the appellant/claimant, as borne out from Ext.A5 wound certificate are as follows ; “1, Extensive crush injury over left thigh 60 cm x 10 cm. 2. Suspected fracture right forearm. ## 3. Muscle exposed.” Ext.A6 series of discharge summaries would show that the appellant sustained extensive degloving injury on the right thigh with skin loss, lateral ligament complex injury on the right knee and contusion on the right elbow. In paragraph 14 of the award, the Tribunal noted as under:- “xxxxx At the time of assessment, the Medical Board could find ugly puckered scar right thigh and leg, total ankylosis right knee, discharging sinus right thigh and leg and features ostemyelitis present. The claimant had appeared before the Tribunal whose disability was verified. His condition is really pitiable. The entire flesh from the right leg was lost and skin grafting done. But the M.A.C.A.No.561 of 2013 :-6-: right leg is in a pitiable condition even at the date of examination of the petitioner, i.e., on 31-12-2010, the wound was not properly healed. xxxxxx” 9. Due to the injuries sustained in the accident, the appellant/claimant had undergone as an inpatient for a period of 30 days. In Ext.C1 disability certificate issued by the District Medical Board, a permanent whole body disability of 25% is assessed as per Mc-Bride Scale. In the very same certificate, the disability as per National Institute of Orthopedically Handicapped Scale (N.I.O.H.) is shown as 72%. The Tribunal, for the purpose of assessing the disability compensation, reckoned the percentage of permanent disability as 25%, as certified in Ext.C1. The procedure adopted by the Tribunal in this regard is perfectly legal, which warrants no interference in this appeal. 10. Taking the notional income as `3,000/-, applying the multiplier as '13' and the percentage of disability as 25%, the Tribunal awarded `1,17,000/- (3,000x12x13x25/100) as disability compensation. Since we have already re-fixed the notional monthly income of the appellant as `7,500/-, the disability compensation payable is re-fixed as `2,92,500/- (7,500x12x13x 25/100), resulting an additional compensation of ` **1,75,500/-** . M.A.C.A.No.561 of 2013 :-7-: 11. Towards 'loss of earning', the Tribunal awarded a sum of `9,000/- (at the rate of `3,000 for a period of 3 months). Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, we deem it appropriate to grant 'loss of earning' for a period of 6 months. Since we have already re-fixed the notional income of the appellant/claimant as `7,500/-, the compensation payable under this head comes to `45,000/- (at the rate of 7,500x6). After deducting the sum of `9,000/-, the compensation awarded by the Tribunal under this head, the appellant/claimant will be entitled for an additional compensation of ` **36,000** /-, under the said head. 12. Towards 'bystander expenses', the Tribunal awarded a sum of `3,000/- (at the rate of `100/- for a period of 30 days). Considering the fact that the accident is of the year 2010, we deem it appropriate to re-fix the compensation under this head as `6,000/- (at the rate of `200/- for a period of 30 days), resulting an additional compensation of ` **3,000** /-. 13. Towards 'extra nourishment', the Tribunal awarded a sum of `3,000/- (@ `100/- for a period of 30 days). Since the accident is of the year 2010, we deem it appropriate re-fix the M.A.C.A.No.561 of 2013 :-8-: compensation under this head as `4,500/- (at the rate of `150/- for a period of 30 days), resulting an additional compensation of ` **1,500** /- under the head 'extra nourishment'. 14. Towards 'pain and suffering', the Tribunal awarded a sum of `15,000/-. Considering the nature of injury sustained by the appellant and the treatment he had undergone, we deem it appropriate to re-fix the compensation under this head at `30,000/-, resulting an additional compensation of ` **15,000** /-. 15. Towards 'loss of earning power', the Tribunal awarded a sum of `5,000/- and towards ' loss of amenities', a further sum of `5,000/- was awarded. Since disability compensation has been granted applying the appropriate multiplier applicable to the age group of the appellant, he is not entitled for any compensation under the head 'loss of earning power'. However, the compensation awarded by the Tribunal under the head 'loss of amenities' is on a lower side, considering the nature of disability that had arisen from the injuries sustained in the accident. In such circumstances, the compensation under the head 'loss of amenities' is re-fixed as `20,000/-. After deducting the sum of `5,000/- already awarded by the Tribunal under this head and M.A.C.A.No.561 of 2013 :-9-: also a sum of `5,000/- awarded under the head 'loss of earning power', the appellant/claimant will be entitled for an additional compensation of ` **10,000** /- under the head 'loss of amenities'. 16. In the result, the appellant/claimant will be entitled for an additional compensation of ` **2,41,000** /- (1,75,500+36,000+ 3,000+1,500+15,000+10,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. 17. Since the insurance coverage of the lorry is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal, within a period of 2 months from the date of receipt of a certified copy of this judgment. No order as to costs. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- ## **ANIL K.NARENDRAN** **JUDGE** ami/21.6.17 //True copy// P.A.to Judge