Suresh S/o Kunjippu v. Ranganathan P. S/o Palaniswami; Nazeer Khan S/o Muhammed Yusuf; National Insurance Company Limited; Velu S/o RAMASWAY

# IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 ## MACA NO. 812 OF 2013 AGAINST THE ORDER/JUDGMENT OPMV 1356/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA ## APPELLANT/PETITIONER: SURESH S/O. KUNJIPAPPU, PATTATHIPARAMBIL HOUSE, KOTTAVATHIL DESOM, KURUVILASSERY VILLAGE, KOTTAMURI P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## RESPONDENTS: - 1 RANGANATHAN P. S/O. PALANISWAMI, M/15 HOUSING UNIT, METTUPALAYAM P.O, TAMIL NADU. - 2 NAZEER KHAN S/O. MUHAMMED YUSAF, 86, MAHADWAPURAM, METTUPALAYM P.O, COIMBATORE. - 3 NATIONAL INSURANCE COMPANY LIMITED IST FLOOR, 638, CUDALORE MAIN ROAD, ATTU P.O, SALEM. - 4 VELU S/O. RAMASWAY, 45, ANGANAMUTHU ST, ATTUR DISTRICT, SALEM, TAMILNADU. BY ADV K.B.RAMANAND ADV DHANYA M B-R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 812 OF 2013 -2- ## JUDGMENT The appellant was the petitioner in O.P.(MV) No.1356/2008 on the files of the Motor Accidents Claims Tribunal, Irinjalakkuda. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 27.02.2008; when he was walking through the road, he was hit by a goods vehicle bearing Registration No.KL-TN-49/V 5505. The said vehicle was being driven by the 2[nd] respondent at the time of the accident. 1[st] respondent was the owner and it was insured with the 3[rd] respondent/Insurance Company. MACA NO. 812 OF 2013 -3- 3. The 3[rd] respondent contested the matter by filing a written statement wherein they admitted the coverage of policy for the said vehicle. However, they denied negligence on the part of the 2[nd] respondent, and they also disputed the quantum of compensation. 4. To substantiate the contentions, the appellant examined PWs 1 and 2, and Exhibits A1 to A9 were marked. No evidence was adduced by the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent in driving the vehicle, and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of the MACA NO. 812 OF 2013 -4- compensation was fixed as Rs.1,00,855/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 7.5% per annum from the date of petitioner till realisation. This appeal is submitted by the appellant in such circumstances seeking enhancement of the compensation. 5. Heard Sri.P.V.Baby, learned counsel appearing for the appellant and Smt. Dhanya Babu M.B the learned counsel appearing for the 3[rd] respondentInsurance Company. 6. The only question to be considered is whether any enhancement of compensation, as claimed in the appeal, is to be granted or not. On carefully MACA NO. 812 OF 2013 -5- scrutinizing the records, I find that the amount awarded by the Tribunal is inadequate and, therefore, requires reconsideration. 7. The learned counsel for the appellant brought the attention of this Court to the monthly income accepted by the Tribunal, which was only Rs.2,500/-. Besides the same, despite the specific evidence in the form of Ext.A6 Disability Certificate wherein the functional disability was certified as 28%, the Tribunal accepted only 9.98% disability without even making any observations with reference to the same. 8. After going through the records, I find force in the said contention. As far as the monthly income MACA NO. 812 OF 2013 -6- accepted by the Tribunal is concerned, it is to be noted that the claim put forward by the appellant in this regard was Rs.6,000/- which he used to earn from his avocation as a painter. The accident in this case, occurred in the year 2008. It is to be noted in this v. regard that, in Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]’ case, the Hon’ble Supreme Court was pleased to take the monthly income of an ordinary employee without any skills as Rs.4,500/- for the year 2004. Therefore, under no circumstances, the monthly income of Rs.6000/- can be treated as unreasonable for the year 2008. Therefore, the said amount is accepted MACA NO. 812 OF 2013 **==> picture [16 x 9] intentionally omitted <==** for assessment of compensation. 9. The next element to be determined is the percentage of disability. As observed above, Ext.A6 is the certificate issued by a Doctor who was examined as PW2 as well. In Ext.A6, the Doctor noted the following aspects: “ Fracture left 2 to 7 ribs, fracture right 2nd rib, pneumothorax left side. Fracture pelvis left side involving the floor of acetabulum superior pelvic rami, lung contusion of the left side, blunt injury to the abdomen.” 10. The said aspect was asserted by the doctor when he was examined as PW2. No serious challenge is seen made to the evidence adduced by the appellant in this regard. From considering the nature of the injuries, as is discernible from the records, including MACA NO. 812 OF 2013 -8- the fracture of the ribs, the functional disability as certified by the Doctor appears to be a probable one. Therefore, I am of the view, this is a case in which the functional disability, as certified in Ext.A6, ought to have been adopted, particularly because of the fact that the appellant claimed to be a painter, which is a job that requires physical exertion. In such circumstances, when reworking the compensation with the revised monthly income and the functional disability as referred to above, the compensation for disability and consequential loss of earning capacity would come to Rs.2,62,080/- (Rs.6000x12x13x28/100). The amount already awarded by the Tribunal is MACA NO. 812 OF 2013 -9- Rs.38,922/-. The additional compensation would come to Rs.2,23,158/-. 11. The Tribunal did not award any compensation for loss of earnings. It is pointed out in Ext.A4Discharge Summary that even though 12 days of inpatient treatment is mentioned, when discharged, he was advised to take rest for six months. Considering the nature of the injuries as referred to above, the probability of the appellant being prevented from pursuing his avocation as a painter for a period of six months cannot be ruled out. In such circumstances, I am inclined to grant compensation for loss of earnings for a period of 6 months, and accordingly, an amount MACA NO. 812 OF 2013 **==> picture [22 x 9] intentionally omitted <==** of Rs.36,000/- is awarded. 12. The next aspect relates to the compensation for pain and suffering, and the amount already awarded by the Tribunal is Rs.12,000/-. As observed above, the appellant sustained very serious injuries on various parts of his body viz., head, ribs, and hip. Even though the impatient treatment was confined to 12 days, he availed of a prolonged treatment, which is evident from the records. Therefore, I am of the view that a further sum of Rs.18,000/- can be granted under the said head. 13. The Tribunal did not award any compensation for loss of amenities despite the fact that the serious MACA NO. 812 OF 2013 -11- injuries were sustained, and the same resulted in functional disability of 28%. Therefore, I am of the view that the Tribunal should have a granted reasonable amount under this head and in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.25,000/-. Thus, the total additional compensation is determined as Rs.3,02,158/-(2,23,158+ 36,000+18,000+25,000). In the result, this appeal is allowed. The award dated 03.01.2013 passed by the Accidents Claims Tribunal, Irinjalakkuda in O.P.(MV) No.1356/2008 is hereby modified by granting additional compensation of Rs.3,02,158/-,( Rupees three lakhs , two thousand , MACA NO. 812 OF 2013 -12- one hundred and fifty eight only) and the said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal, and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Sd/- ZIYAD RAHMAN A.A. JUDGE sms