Sureshkumar v Maya ja, Babu C and Branch Manager, Reliance General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 28TH DAY OF JUNE 2016/7TH ASHADHA, 1938 MACA.No. 872 of 2012 () -----------------------AGAINST THE AWARD IN OP(MV)NO.269/2010 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 28-11-2011 APPELLANT/PETITIONER: --------------------------- SURESHKUMAR, AGED 41 YEARS, S/O.RARICHOTTY, CHERIYAPARAMBATH, (CHALAPATTU), P.O.ERANHIKKAL, ERANHIKKAL AMSOM AND DESOM, KOZHIKODE. BY ADVS.SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU SMT.A.SIMI SMT.VIDYA V.DEVAN RESPONDENTS/RESPONDENTS: ---------------------------------- 1. MAYAJA, AGE NOT KNOWN, W/O.JAYAKUMAR, ARAKKAL, KUTTAPANAKKAL, 3/165, NADAKKAVU, CALICUT-673 011. 2. BABU.C, AGED 36 YEARS, S/O.KUTTYSANKARAN NAIR.K.P, DRIVER, THAZHEKOTHANGAL HOUSE, NARIKUZHI P.O., CALICUT-673 585. 3. BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO.LTD., CITADEL ARCADE IIND FLOOR, OPP.TAGORE CENTENARY HALL, R.C.ROAD, CALICUT-32. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.872 of 2012 -------------------------------Dated 28[th] June, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The injured-petitioner filed this appeal against the award dated 23.11.2011 in O.P.(M.V)No.269 of 2010 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode seeking enhancement of the compensation awarded thereunder. He filed the said claim petition seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 25.4.2008 at about 9.30 p.m. He was riding his motor cycle bearing Reg.No.KL-11-Y-7629 through the West Hill - Kozhikode road and when he reached near Nadakkavu Police Station, a Toyoto Qualis car bearing Reg.No.KL-11-R-2779, driven by the 2[nd] respondent, hit on his motor cycle. Consequently, he sustained injuries and was taken to Baby Memorial Hospital. On the same day itself he was referred to District Co-operative Hospital, Kozhikoe. Ext.A2 is the copy of the wound certificate which would reveal that he had fracture on both bones of the right leg besides a lacerated wound. He had been an inpatient for a total period of 54 days, under different spells. It is in the said circumstances that alleging rashness and M.A.C.A.No.872/2012 2 negligence against the driver of the car viz., the 2[nd] respondent and raising averments to make the first respondent vicariously liable and the 3[rd] respondent to indemnify the first respondent, the claim petition was filed for a total compensation of 6,00,000/-. Before the Tribunal,₹ the appellant got himself examined as PW1 and Exts.A1 to A10 series were got marked on his side. No oral evidence was adduced by the respondents. Ext.X1 series of case records are the witness exhibits. Ext.C1 is the court exhibit which is a letter from the Medical College Hospital. The Tribunal considered the evidence on record and appreciated the rival contentions for passing the impugned award whereunder a total compensation of 2,24,070/- was granted with₹ interest at the rate of 7% per annum from the date of petition till realisation along with a cost of 1,500/-.₹ 2. We have heard the learned counsel for the appellant and the learned counsel appearing for the 3[rd] respondent, the insurer of the offending vehicle. 3. As per order dated 6.6.2012 notice to respondents 1 and 2 was dispensed with taking into account the fact that the insurance coverage of the offending vehicle was not in dispute. The sole question M.A.C.A.No.872/2012 3 to be considered in this case is whether or not the appellant is entitled to get enhanced compensation under any of the heads. 4. The main contention of the appellant is that despite his specific averments in the claim petition that he is a ration dealer and was earning 6,000/- per month the Tribunal took his monthly income₹ only notionally that too at 3,000/- for the purpose of computing₹ compensation for loss of earning as also for permanent disability sustained by him in the accident. It is the submission that the said erroneous estimation of the monthly income that resulted in denial of just compensation. The learned counsel for the appellant further contended that under the heads `transport to hospital', `extra nourishment', `damage to clothings and other articles', `bystander's expenses', `pain and sufferings' and `loss of amenities of life' the Tribunal granted only meagre amounts and therefore, they require upward modification. The learned counsel appearing for the 3[rd] respondent resisted the contentions and submitted that despite taking of specific averments regarding the occupation and income the appellant had not adduced any evidence to establish them before the Tribunal. It is submitted that in such circumstances, the Tribunal has rightly fixed the monthly income notionally for the aforesaid purposes. M.A.C.A.No.872/2012 4 It is also contended that the multiplier taken by the Tribunal as `15' invites interference. With reference to the age of the appellant the multiplier applicable is `14'. 5. The evidence on record would reveal that the appellant though took contentions regarding his occupation and income in the claim petition he had failed to adduce any evidence to establish such contentions before the Tribunal. When that be the position, we are of the view that the Tribunal cannot be found fault with in fixing the monthly income notionally for calculation purposes. Still the question to be looked into is whether the notional fixation of 3,000/- as the₹ monthly income by the Tribunal requires an interference ? The date of accident in this case is 25.4.2008 and the appellant was then aged 42 years. While considering the adequacy of the monthly income fixed in relation to an accident occurred in 2008 that too, to a person who was then aged only 42 years, we are of the view that it is only apposite to refer to the decision of the Hon'ble Apex Court in _**Ramachandrappa** v._ _**Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236).**_ When it is evident from the said decision that even in respect of a coolie who met with an accident in 2004 the Hon'ble Apex Court fixed the monthly income notionally at 4,500/- we₹ M.A.C.A.No.872/2012 5 find no reason to sustain the fixation of monthly income as 3,000/-₹ taking into account the fact that the accident in question occurred in the year 2008. Taking into account all such aspects we are of the view that it is only appropriate to fix the monthly income of the appellant at ₹ 5,000/- for the calculation purpose. When once the monthly income is so fixed the compensation granted towards loss of earning has to be re-assessed. We do not find any reason to interfere with the period taken for the aforesaid purpose by the Tribunal viz., four months. With the modified monthly income, when the amount of compensation under the head `loss of earning' is calculated for the same period, the appellant would be entitled to get an amount of 8,000/- additionally.₹ It is awarded. In the light of the fixation of monthly income as ₹ 5,000/- certainly, the compensation under permanent disability also has to be re-assessed. In this case, the multiplier was adopted by the Tribunal as `15'. Evidently, it was taken with reference to the age of the insured. As noticed hereinbefore, at the time of the accident, he was aged 42 years. But, there occurred an error in adopting the multiplier. Going by the schedule given in the decision of the Hon'ble Apex Court in _**Sarla Verma** v._ _**Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ the multiplier to be adopted with reference to the age of the appellant is only `14'. In the said circumstances, we are M.A.C.A.No.872/2012 6 inclined to take `14' as the multiplier. The learned counsel for the appellant further submitted that the Tribunal also went wrong in not accepting the entire percentage of disability certified under Ext.A8. Evidently, Ext.A8 is not a disability certificate issued by a duly constituted medical board. That apart, it is to be noted that the doctor who issued Ext.A8 disability certificate was not examined before the Tribunal. Still, we have gone through Ext.A8 disability certificate. A perusal of Ext.A8 would reveal that on examination the doctor who issued Ext.A8 found that there was non-union of the fractured bones and there was 70% rigidity as regards the fractured bones. It is after arriving at such a finding that the doctor concerned certified the permanent disability of the appellant as 33%. A perusal of the impugned award would reveal that while being examined as PW1, the appellant, as an answer to a suggestion, deposed that he suffered permanent disability to the tune of 20%. Certainly, any such answers to suggestions cannot be the basis for assessing the permanent disability by the Tribunal. But, at the same time, the fact that the appellant was examined before the Tribunal as PW1 would indicate that the Tribunal has had an opportunity to see the injured appellant. The Tribunal even after noticing the fact that under Ext.A8 the permanent disability was assessed as 33% found that it is only proper to fix the M.A.C.A.No.872/2012 7 percentage of permanent disability incurred by the appellant as 20%. The nature of the assessment made in Ext.A8 and taking into account the nature of the injuries sustained by the appellant, as is evident from Ext.A2 and A3, we are of the view that the percentage of disability assessed by the Tribunal for assessing compensation for the permanent disability incurred in the accident invites no interference. In such circumstances, with the modified multiplicand and the multiplier if the amount of compensation payable for permanent disability is reassessed, the appellant would be entitled to get an amount of ₹ 1,68,000/-. At the same time, it is to be noted that the Tribunal has already granted an amount of 1,08,000/- under the said head. In the₹ said circumstances, the appellant would be entitled to get only an amount of 60,000/- additionally under that head. Towards transport₹ to hospital, the appellant was given only an amount of 1,500/-.₹ Taking note of the fact that after the initial admission and discharge from the hospital, the appellant must had hospitalisation thereafter. Going by the nature of the injuries sustained by him and the nature of the treatment undergone by him we are of the view that he is entitled to get an amount of 1,500/- more under that head. Obviously, the₹ appellant had been an inpatient for a period of 54 days. The Tribunal granted only an amount of 1,000/- towards extra nourishment.₹ M.A.C.A.No.872/2012 8 Taking into account the number of days of hospitalization we are of the view that the appellant is entitled to get 100/- per day and in the said₹ circumstances, he is entitled to get an amount of 4,400/-, over and₹ above the amount granted by the Tribunal under that head. Taking into account the period of hospitalization and the year of accident we are of the view that the appellant ought to have been granted at least 200/-₹ per day towards bystander's expenses. In such circumstances, the appellant would be entitled to get an amount of 5,400/- more towards₹ bystander's expenses. Towards damage to clothings and other articles the appellant claimed an amount of 1,000/-. The Tribunal granted₹ only an amount of 500/-. There can be no doubt with respect to the₹ fact that the dresses worn by the appellant must have been damaged in the accident. In such circumstances, we award 500/- more under₹ that head. Towards pain and sufferings the appellant claimed an amount of 1,00,000/- and the Tribunal granted only an amount of₹ ₹ 25,000/-. We have already noted the nature of the injuries revealed from Ext.A2 wound certificate. Evidently, the petitioner had been treated as an inpatient for 54 days. Thus, it is beyond any doubt that owing to the injuries sustained in the accident he must have endured severe pain. In such circumstances, we are inclined to grant an amount of 15,000/- more under that head. Taking into account the fact that₹ M.A.C.A.No.872/2012 9 there was non-union of the fractured bones and also the age of the appellant at the time of the accident there can be no doubt that it would adversely affect the enjoyment of his life. He cannot be expected to enjoy the life as before. Taking into account such circumstances, we are inclined to grant an amount of 5,000/- more under that head.₹ Though the learned counsel for the appellant raised a contention that the Tribunal went wrong in not looking into the two sets of medical bills produced subsequent to the production of the first series of medical bills, on perusing the evidence on record it is found that, in troth, all the three sets were marked as Ext.A9 series. A perusal of the judgment itself would reveal that the Tribunal has virtually looked into all the three sets as it is very specifically stated in the impugned award itself that Ext.A9 series is of three sets. That apart, it is evident that the total amount covered by the first set of bills is less than 65,670/-₹ which is the amount granted by the Tribunal towards treatment expenses. Taking into account all such circumstances, there is absolutely no reason for holding that the Tribunal had not looked into the other two sets of medical bills produced before the Tribunal. In the said circumstances, we do not find any force in the said contention. In the light of the discussion as above, the appellant is entitled to get a total enhanced compensation of 99,800/- which is rounded off to₹ M.A.C.A.No.872/2012 10 ₹ 1,00,000/-. The enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent is directed to deposit the enhanced amount with interest within two months from the date of receipt of copy of this judgment failing which the amount remaining to be paid will carry interest at the rate of 9% per annum from the date of petition till realisation. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS