Suresh v. SP Alagappan and others (MACA.No.1017 of 2005)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 25TH DAY OF NOVEMBER 2013/4TH AGRAHAYANA, 1935** ## **MACA.No. 1017 of 2005 (A)** **-------------------------------------[AGAINST THE AWARD IN O.P.(MV).NO.1325/1998 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL., PALAKKAD, DATED 03-02-2005]** **..................** ## **APPELLANT/PETITIONER:** **-------------------------------------** **1. *SURESH, S/O. RAMAKRISHNAN, RESIDING AT METHANKODE, VANDAZHI P.O., ALATHUR, PALAKKAD DISTRICT. *(DIED).** ## ***ADDITIONAL APPELLANTS 2 TO 6 IMPLEADED:** **2. RAMAKRISHNAN, S/O. LATE KUNCHU, METHANKODE, VANDAZHI.P.O., ALATHUR, PALAKKAD DISTRICT.** **3. RUGMANI, W/O. RAMAKRISHNAN, -DO-.** **4. SUNDARAN, S/O. RAMAKRISHNAN, -DO-.** **5. SUMATHI, D/O. RAMAKRISHNAN, -DO-.** **6. SUNITHA, D/O. RAMAKRISHNAN, -DO-.** - ***ADDL. APPELLANTS 2 TO 6 IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED 1ST APPELLANT AS PER ORDER ON I.A. NO.1410/10 DT. 17/06/10.** ## **BY ADVS.SRI.LIJU. M.P** ## **SRI.M.V.BIPIN** **Prv.** ## **M.A.C.A. NO.1017/2005-A:** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** ## ***1. S.P. ALAGAPPAN, S/O.V.R.SUBRAMANIAN,** - **21/280 NOORANI, P.O. VENNAKKARA, PALAKKAD. (RC OWNER OF KL-13/5027 LORRY). *(DELETED).** ***RESPONDENT NO.1. IS DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DTD. 09/10/13 IN I.A. NO.2612/13 IN M.A.C.A. NO.1017/2005** **2. M.RADHAKRISHNAN, S/O. MANI, CHAKRAKALAM, POLPULLY, PALAKKAD. (DRIVER OF LORRY K-13/5027, LORRY DL.NO.5351/94, BADGE NO.1522/96 FROM ASST.LICENSING AUTHORITY, PALAKKAD.** **3. UNITED INDIA INSURANCE CO. LTD., RAMANATHAPURAM, TRICHI ROAD, COIMBATORE, TAMIL NADU, (INSURER OF LORRY KL-13/5027).** **4. SMT.R.REGINA DEVI, W/O. RAJAMANIKKAM, GOLGHAT ROAD, DIMMAPUR, NAGALAND STATE, NOW RESIDING AT NO.79, 3RD CROSS, KALASIPALAYAM, N.EXTENSION, BANGALORE-2. (OWNER OF LORRY NO.NL-5/A-5959).** ## **5. UNITED INDIA INSURANCE CO. LTD.,** - **BRANCH OFFICE: 100-A, ATTUR ROAD, RASIPURAM, TAMIL NADU. (INSURER OF LORRY NO.NL-5/A-5959).** ## ***ADDITIONAL R.6. IMPLEADED:** - ***6. SUCHITRA, W/O. SHIBU,** - **KIZHAKKETHARA, VANDAZHI.P.O., ALATHUR, PALAKKAD.** ***ADDL. R.6. IMPLEADED AS THE LEGAL HEIR OF THE DECEASED FIRST APPELLANT AS PER ORDER ON I.A. NO.1410/2010 DT. 17/06/10.** **R3 & R5 BY ADV. SRI.S.MAMMU.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ---------------------------------------------------------------------M.A.C.A.No. 1017 of 2005 --------------------------------------------------------------------Dated this the 25[th] day of November, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimant in O.P.(M.V.).No.1325/1998 on the file of the Motor Accidents Claims Tribunal, Palakkad is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident, caused on account of the negligent driving of the vehicle by the 2[nd] respondent, owned by the first respondent (who was deleted as per order in I.A.No.2612/2013 before this court) and insured with the 3[rd] respondent. After considering the evidence on record, the tribunal found that, the accident occurred due to the negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of 69,100/- on various heads as₹ follows: M.A.C.A.No. 1017 of 2005 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Transportation expenses|2, 000| |2|Loss of earnings|5, 250| |3|Extra nourishment|2, 500| |4|By-stander's expenses|2, 000| |5|Damage to clothing|250| |6|Medical expenses|6, 000| |7|Pain and suffering|14, 000| |8|For permanent disability|33, 600| |9|Loss of amenities, marriage prospects<br>and loss of expectation in life|3, 500| ||Total|69, 100| Dissatisfied with the quantum of compensation awarded, the original appellant has filed this appeal before this court. 2. During the pendency of the appeal, the appellant died and additional appellants 2 to 6 were impleaded as his legal heirs to prosecute the appeal as per order in I.A. No.1410/2010. 3. Heard the counsel for the appellant and counsel for the insurance company. 4. Since the liability of the insurance company is admitted and notice has already been issued to the other respondents in the appeal in the delay condonation application, further notice to them is dispensed with in the appeal and decided to dispose of M.A.C.A.No. 1017 of 2005 3 the appeal at the admission stage itself after hearing the counsel for the insurance company. 5. The counsel for the appellants submitted that, the original appellant was aged only 19 years at the time of accident and he was working as a cleaner in a lorry and getting 3,750/- per month. But the tribunal₹ has arbitrarily fixed his monthly income as 1,750/-,₹ which is not correct. Further, he suffered severe injuries including amputation of the toes but the tribunal has awarded only ₹ 14,000/- under the head pain and suffering, which is on the lower side. Further the doctor who issued the disability certificate, certified his disability as 19%, but the tribunal has taken only 10% for the purpose of awarding compensation under the head permanent disability. Further the multiplier taken is only 16. As per **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the proper multiplier applicable to the age group of 19 as the original appellant was at the time of accident is 18 and M.A.C.A.No. 1017 of 2005 4 not 16. The amount awarded under the head loss of amenities in life is also on the lower side. So, according to the counsel for the appellant, the appellant is entitled to get enhanced compensation on all heads. 6. On the other hand, the counsel for the insurance company submitted that, the tribunal has considered all the aspects in the right perspective and awarded just and reasonable compensation. Considering the fact that the accident occurred in the year 1998, the total compensation awarded is just and proper and no interference is called for at the hands of this court. 7. We have considered the rival contentions of both parties in detail. 8. Though the appellant had a case that he was working as a cleaner in a lorry and getting 3,750/-₹ per month, there was no acceptable evidence adduced on the side of the appellant to prove his income. So under the circumstances, the tribunal has fixed the monthly income of the appellant as 1,750/- per month, which₹ M.A.C.A.No. 1017 of 2005 5 cannot be said to be on the lower side, in the year 1998, when the accident occurred. So we are not inclined to refix the monthly income of the appellant fixed by the tribunal, as it appears to be just and proper. Similarly, the tribunal has considered all the aspects, for the purpose of awarding compensation under the head loss of earning, during the period of treatment and also for pain and suffering, so we are not inclined to enhance any amount under that head, as the amount awarded under other heads are just and proper. 9. The discharge certificate shows that he suffered the following injuries: - "1. Type II compound fracture both bones right leg lower 1/3[rd] , 2. Traumatic amputation right 4[th] and 5[th] toe at meta tarsal phalangeal joint, 3. Compound dislocation 3[rd] toe at inter phalangeal joint, 4. Degloving injury right foot distal half lateral side, 5. Lacerated wound medial aspect of left knee and left tibia upper end, 6. Multiple lacerated wound on left thigh, 7. Lacerated wound over both wrist, 8. Compound comminuted fracture P1/F4, 9. Multiple lacerated wounds on face and fore-head. ## In Ext.A6 disability certificate, the following M.A.C.A.No. 1017 of 2005 6 ## disabilities were noted by the doctor. “1. Fracture both bones right leg- - Type II compound, 2. Traumatic amputation of 4/5 toes right foot, 3. Compound dislocation of 3[rd] toe at inter - phalangeal joint right, 4. Multiple soft tissue injuries, 5. Fracture P1 4[th] finger left hand”. 10. Being a cleaner working in a lorry, he may have some difficulty in climbing the lorry and this may have affect his earning capacity. As rightly pointed out by the counsel for the appellant, this may have affect his future earning capacity as well and the prospects of getting better employment, on account of the injuries sustained. Considering these aspects, we feel that 10% disability taken by the tribunal, for assessing compensation under the head permanent disability appears to be on the lower side and we are inclined to enhance the same by 15%. There is some force in the submission made by the counsel for the appellant regarding the multiplier. As per Sarla Verma's case (supra), the proper multiplier is 18 and not 16 as taken by M.A.C.A.No. 1017 of 2005 7 the tribunal. If a re-calculation is made on that basis, the original appellant will be entitled to get an amount of ₹ 56,700/-(1750x12x18x15%) instead of ₹ 33,600/awarded by the tribunal under the head of loss of earning power. 11. In view of the fact that, he suffered traumatic amputation of right 4[th] and 5[th] toe, compound dislocation of 3[rd] toe at inter phalangeal joint right, multiple soft tissue injuries, fracture P1 4[th] finger left hand having 19% disability, being a young man of 19 years, it may have some impact on his personal life as well. The amount of 3,500/- awarded by the tribunal₹ under the head loss of amenities in life including marriage prospectus etc., is on the lower side, we enhance the same to 25,000/-. Despite the persuasive₹ arguments made by the counsel for the appellants to get enhancement under other heads, we are not inclined to enhance the same, as the amount awarded by the tribunal on other heads appears to be just and proper. In all, the M.A.C.A.No. 1017 of 2005 8 additional appellants / the legal heirs of the original appellant will be entitled to get additional compensation of 44,600/-, over and above what has been awarded by₹ the tribunal, with 9% interest per annum from the date of the claim petition, till date of payment, payable by the 3[rd] respondent insurance company. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- **==> picture [139 x 15] intentionally omitted <==** Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss