Suresh @ Suresh Kumar v. M/S Siva Sakthi Earth Movers & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943** ## **MACA NO. 2737 OF 2008** ## **AGAINST THE AWARD IN OPMV 1382/2004 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER:** SURESH @ SURESH KUMAR AGED 30, S/O.POOYATH GOPALAKRISHNAN,, CHENGALOOR DESOM, PUDUKKAD. BY ADV SRI.T.N.MANOJ ## **RESPONDENTS/RESPONDENTS:** 1 M/S.SIVA SAKTHI EARTH MOVERS & OTHERS 17/5 MADHURA ROAD, FARIDABAD, HARYANA STATE. 2 N.V.ABHILASH S/O.NJATTUVEETIL VELAYUDHAN, NOOLUVALLY, CHEMBUCHIRA,, THRISSUR. 3 THE MANAGER NATIONAL INSURANCE COMPANY LTD, SECTOR 16, MARKET, FARIDHABAD. BY ADVS. SRI.C.K.SREEJITH MATHEWS JACOB (SR.) P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2737 OF 2008 2** ## **Dated this the 16[th] day of September, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1382/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 16.03.2004. It was his case that, while he was riding a motorcycle bearing registration No. KL.8/H 9926 through the National Highway-47, when he reached Amballoore Junction, a jeep bearing registration No. HR-38 1003 (jeep) came from the opposite direction and hit his motorcycle. The appellant sustained extensive injuries, including fractures of his humerus and ribs 5, 6,7,8 and 9 and rupture of his spleen. The appellant was **MACA NO. 2737 OF 2008 3** treated as inpatient in the Heart Hospital, Thrissur from 17.03.2004 to 29.03.2004 and from 16.04.2004 to 19.04.2004. The appellant has difficulty in using his left hand, difficulty in breathing and difficulty in walking. The appellant was a driver by profession and earning a monthly income of Rs.3000/-. The accident occurred solely due to the negligence of the 2[nd] respondent. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the jeep. Therefore, the appellant claimed compensation of Rs.3,00,000/- from the respondents. 3. The pillion rider on the motorcycle riden by the appellant had lost his life in the same accident. His legal representatives had filed O.P.(M.V.) No.588/2004 seeking compensation before the same Tribunal. 4. The 1[st] respondent had filed a written statement contending that the accident occurred due to the negligence of the appellant. The 2[nd] respondent adopted the very same contentions as that of the 1[st] respondent. ## **MACA NO. 2737 OF 2008 4** 5. The 3[rd] respondent had filed a written statement admitting that the jeep had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the appellant. 6. The Tribunal consolidated and jointly tried both the claim petitions. The petitioners in both claim petitions produced and marked Exhibits A1 to A18 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petitions, by permitting the appellant to realise an amount of Rs.54,300/- with interest and proportionate cost from the 3[rd] respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.T.N.Manoj, the learned counsel appearing for the appellant/petitioner, Sri. C.K.Sreejith the learned counsel appearing for the 1[st] respondent and Sri. P.Jacob Mathew the learned counsel appearing for the **MACA NO. 2737 OF 2008 5** 3[rd] respondent/insurer. 10. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 11. Exhibit A2 charge sheet filed by the Puthukkad Police in Crime No.126/2004 substantiates that the accident occurred due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner of the jeep and the 2[nd] respondent was the driver. Therefore, the 1[st] respondent is vicariously liable to pay the compensation. As the 3[rd] respondent was the insurer of the jeep and had not alleged any violation of the policy conditions, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out the accident. ## **Income** 12. The appellant had claimed that he was a driver by profession and earning a monthly income of Rs.3000/-. ## **MACA NO. 2737 OF 2008 6** The Tribunal for the purpose of fixation of loss of earnings fixed the income of the appellant at Rs.3000/-, but for the purpose of calculating the compensation for loss due to disability took the appellant’s monthly income at Rs.1500/-. The course adopted by the Tribunal is per se erroneous. The Tribunal ought to have fixed only one monthly income for awarding the compensation under both the heads. 13. In view of the fact that the appellant was a driver by profession and accident occurred in the year 2004, following the principles in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] **,** I find that the monthly income claimed by the appellant at Rs.3000/- is justifiable and reasonable. Hence, I fix his monthly notional income at Rs.3000/-. ## **Multiplier** 14. The appellant had stated that he was aged 26 ## **MACA NO. 2737 OF 2008 7** years at the time of accident. The Tribunal, however, fixed the multiplier at ‘18’, which is wrong. 15. In the light of the principles laid down in **Sarla Verma and Others v. Delhi Transport Corporation** **and another** [2010 (2) KLT 802 SC], the correct multiplier is ‘17’. Hence, I refix the multipier at ‘17’. ## **Loss due to disability** 16. The appellant had produced Exhibit A18 disability certificate issued by the doctor, who had, inter alia, certified that the appellant has reduced movements of left subtalar joints, loss of natural arch of the left foot and has difficulty in using pedals of vehicles with his left foot. The Doctor fixed the permanent disability of the appellant at 20%. Nevertheless, the Tribunal after converting the disability of the limb to the whole body disability, reduced the disability of the appellant to 8%. 17. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held ## **MACA NO. 2737 OF 2008 8** that what needs to be looked into while fixation of the disability of a person injured in an accident, is his functional disability. 18. Undisputedly, the appellant was a driver by profession and it is seen from Exhibit A18 disability certificate that he has reduced movements of his left subtalar joints, loss of natural arch of left foot and he has difficulty in using the pedals of the vehicles with the left foot. 19. In the above factual matrix read with Exhibit A18, I am of the considered opinion that the appellant's functional disability is to be fixed at 20%. 20. Taking into account the above mentioned factors, namely, income of the appellant at 3000/-, the multiplier at ‘17’ and his functional disability at 20%, I re-fix the compensation for loss due to disability at Rs.1,22,400/instead of 26,000/- awarded by the Tribunal. **MACA NO. 2737 OF 2008 9** ## **Loss of earning** 21. Exhibit A11 wound certificate clearly reveals that the appellant had sustained fractures of his left humerus and left ribs 5,6,7, 8 and 9 and rupture of his spleen. He was treated as inpatient from 17.03.2004 to 29.03.2004 and thereafter from 16.04.2004 to 19.04.2004. He continued his treatment as reflected in Exhibits A16, A17 certificates till 04.07.2005. In such circumstances, I hold that the appellant being a driver by profession, was indisposed for a period of six months. Accordingly, I award the appellant’s compensation for loss of earnings for a period of six months at the rate of Rs.3,000/- per month, amounting to Rs.18,000/-, instead of Rs.6,000/awarded by the Tribunal. ## **Medical expenses** 22. Even though the learned counsel appearing for the appellant made a fervent plea that the appellant was under the impression that the medical bills that were ## **MACA NO. 2737 OF 2008 10** produced before the Tribunal would be accepted on record, the Tribunal did not accept the same and did not award amount towards reimbursement of the any appellant’s medical treatment. Even before this Court, the appellant had filed an application to receive photostat copies of the medical bills that were purportedly incurred by him for his treatment. 23. This Court by order in I.A.No.3202/2008 dismissed the application for the reason that the medical bills were only photocopies. On a perusal of the impugned award, it is seen that the appellant had not produced any medical bills or vouchers to substantiate his claim for medical expenses. 24. On a re-verification of the lower courts records, I have not found the copies of the medical bills allegedly produced before the Tribunal. For the want of material , I decline to award the appellant any amount towards reimbursement of medical expenses. Therefore, I reject ## **MACA NO. 2737 OF 2008 11** the plea of the appellant in this regard. ## **Pain and suferings** 25. The appellant had claimed an amount of Rs.30,000/- towards pain and sufferings. The Tribunal awarded only an amount of Rs. 15,000/-. 26. Taking into account Exhibit A11 wound certificate, Exhibits A16 and A17 discharge summaries and Exhibit A18 disability certificate, I find that the appellant had sustained serious injuries including fractures of his humerus and five ribs and also he sustained a rupture of his spleen. Therefore, I hold that the appellant is entitled for enhancement of compensation on the said head by a further amount of Rs.10,000/- i.e. totalling to Rs.25,000/-. 27. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the ## **MACA NO. 2737 OF 2008 12** pleadings, materials on record and the law referred in the above cited precedents, I am of the opinion that the appellant/petitioner is entitled for enhancement of the compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount awarded<br>by the Tribunal<br>(in rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transport|500/-|500/-| |2|By stander expenses|1800/-|1800/--| |3|Loss of earnings|2000/-|18,000/-| |4|Pain and sufering|15,000/-|25,000/-| |5|Loss of amenities|5000/-|5000/-| |6|Loss due to disability|26,000/-|1,22,400/-| ||Total|**54,300/**-|**172700/**-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.1,18,400/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost **MACA NO. 2737 OF 2008 13** of Rs.4000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm