Thankachan C.M. v. M.A. Cheriyan and others

1 MACA No.2327 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943 MACA NO. 2327 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 381/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** THANKACHAN.C.M. S/O. MATHAI, CHAKKIKALLIL HOUSE,, MURIKKINGAL P.O., THRISSUR DIST. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.BENOJ C AUGUSTIN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.A.S.SABU ## **RESPONDENT/S:** 1 M.A.CHERIYAN, MELEKKUDIYIL HOUSE, MANKUTTIPADAM, PADY P.O.,, THRISSUR DIST. 2 WILSON, S/O. OUSEPH NJAREKKADAN HOUSE, KOPLIPADAM DESOM,, VELLIKULANGARA P.O., THRISSUR DIST. 3 MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE,, IRINJALAKUDA. 4 MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, CHALAKUDY BRANCH,, CHALAKUDY. BY ADV SRI.S.ARUN RAJ -R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2327 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.2327 of 2009** ## **====================== Dated this the 3rd day of February, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.381/2004 on the file of the Motor Accident 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 sustained to him in an accident on 29.12.2003. It was his case that, on the above said date, while he was riding his motorcycle bearing registration No.KL-8/G 8815 through KodalyMurikkingal public road, a tempo van bearing registration No.KL-8/N 5608, driven by the second respondent in a rash and negligent manner, hit the motorcycle of the 3 MACA No.2327 of 2009 appellant. The appellant was thrown onto the road and he sustained multiple injuries including a comminuted open fracture of both bones of the radius, fracture of the fifth metacarpal base right and fracture of third metatarsal neck right. He was treated as an inpatient for a period of 14 days at the St.James Hospital, Chalakkudy. The first respondent was the owner and the third respondent was the insurer of the van. The fourth respondent was the insurer of the appellant's motorcycle. The appellant claimed that he was working as an Agent for the Life Insurance Corporation of India and was earning a monthly income of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.3,66,000/from the respondents, which claim was limited to Rs.2,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4 MACA No.2327 of 2009 4. The third respondent/insurer had filed a written statement admitting that the van had a valid insurance coverage. However, the third respondent disputed the age, income and occupation of the appellant and also stated that the second respondent did not possess a valid driving licence. 5. The appellant had produced and marked Exts A1 to A8 in evidence. The third respondent had produced the insurance schedule and insurance certificate, which were marked as Exts B1 and B2. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the third respondent an amount of Rs.69,550/- with interest and cost . 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 5 MACA No.2327 of 2009 8. Heard; Sri.Nagaraj Narayanan, the learned counsel appearing for the appellant/petitioner and Sri.S.Arun Raj, the learned counsel appearing for the third respondent/insurer. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A2 charge-sheet laid by the Vellikulangara Police in crime No.285/2003 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the van. The respondents have not let in any evidence to discredit Ext A2 charge-sheet. The third has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to 6 MACA No.2327 of 2009 indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 11. The appellant had stated that he was working as an Agent for the Life Insurance Corporation of India (LIC) and was earning a monthly income of Rs.5,000/-. However, the Tribunal fixed the notional monthly income of the appellant at Rs.4,000/-. 12. The appellant had produced Ext A5 commission paid certificate issued by the LIC furnishing the details of the commission paid to the appellant for the periods from 2000-2001 to 2004-2005. As per Ext A5, the appellant had an income of Rs.63,789/- during the financial years 2000-2001, Rs.79,667/- during 2001-2002 and Rs.78,286/- during 2002-2003. Ext A5 was marked in evidence without any objection from the respondents. Moreover, it is issued by a statutory authority. Therefore, 7 MACA No.2327 of 2009 I accept Ext A5 on its face value. 13. As per Ext A5, the appellant had an average monthly income of more than Rs.5,000/-. Thus, I fix the monthly income of the appellant at Rs.5,000/- as claimed in the claim petition. ## **Loss of earnings** 14. It is proved through Exts A4 discharge summary and A6 disability certificate, that the appellant had suffered a fracture of both bones of his right forearm, fracture of the fifth metacarpal and fracture of the third metatarsal of the neck right. Certainly, the appellant was indisposed from carrying on his avocation for a period of four months. 15. In view of the fixation of the monthly income of the appellant at Rs.5,000/-, I award him an amount of **Rs.20,000/-** under the head 'loss of earnings'. **Multiplier** 8 MACA No.2327 of 2009 16. Admittedly, the appellant was aged 44 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '14'. **Disability** 17. The appellant had produced Ext A6 disability certificate issued by an Orthopedic Surgeon. As per Ext A6, the appellant is certified to have 11% permanent disability. Nonetheless, the Tribunal, for the reason that the disability certificate was not proved and also the certified disability does not affect the appellant's physical functions, scaled down the disability to 5%. 18. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that what needs to be looked into in an injury claim is the functional disability of the injured-claimant. It is also held that in case the Tribunal is not satisfied with the disability 9 MACA No.2327 of 2009 certificate produced before it, it is the bounden duty of the Tribunal to refer the injured-claimant to a duly constituted Medical Board. Further, it is held that if the disability certificate is marked in evidence, with consent of the parties, the same can be taken on its face value. 19. In the instant case, Ext A6 was marked in evidence with the consent of the parties. The Tribunal after accepting Ext A6, has scaled down the disability on the ground that the disability will not affect the physical functions of the appellant. The course adopted by the Tribunal is flagrant violation of the law laid down in **Raj Kumar** (supra). 20. On an evaluation of Ext A6, it is seen that the appellant has difficulty in standing and walking for a long period, climbing up stairs, rotating his forearm and using his right hand to apply brake and pull things. As the appellant was the LIC Agent, I hold that he has a 10 MACA No.2327 of 2009 functional disability of 10%. ## **Loss due to disability** 21. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.5,000/-, the multiplier at '14 and his functional disability at 10%, I award the appellant an amount of **Rs.84,000/-** towards 'loss due to disability'. ## **Bystander expenses and Extra Nourishment** 22. The appellant was treated as an inpatient for a period of 14 days. The Tribunal has awarded only an amount of Rs.1,400/- under the above two heads, which is on the lower side. 23. On a consideration of the fact that the appellant was treated as an inpatient for a period of 14 days in the year 2003, I award the appellant an amount of Rs.300/per day towards 'bystander expenses', which works out to **Rs.4,200/** - and an amount of Rs.150/- per day for a period 11 MACA No.2327 of 2009 of 14 days towards 'extra nourishment', which amounts to **Rs.2,100/-.** ## **Pain and sufferings and Loss of amenities** 24. Going by the nature of injuries, especially the three fractures suffered by the appellant, that he was indisposed for a period of four months and that he has suffered a functional disability of 10%, I award him a further amount of **Rs.5,000/-** under the head 'pain and sufferings' and an amount of **Rs.10,000/-** under the head 'loss of amenities'. ## **Other heads of compensation** 25. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is 12 MACA No.2327 of 2009 entitled to enhancement of compensation as modified and re-calculated above, and given in the table below for ## easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|12,000/-|20,000/-| |2|Transportation expenses|1,000/-|1,000/-| |3|Extra nourishment|Nil|2,100/-| |4|Bystander expenses|1,400/-|4,200/-| |5|Medical expenses|20,150/-|20,150/-| |6|Pain and sufferings|15,000/-|20,000/-| |7|Loss due to disability|20,000/-|84,000/-| |8|Loss of amenities etc|Nil|10,000/-| ||Total|69,550/-|1,61,450/-| In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of **Rs.91,900/-** (Rupees Ninety One Thousand Nine Hundred only) with interest at the rate of 7% per annum on the enhanced compensation from the date of claim petition till the date of realisation, after deducting 13 MACA No.2327 of 2009 interest for a period of 60 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 11.10.2021 in C.M Appln No.1/2009, and a cost of Rs.7,500/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant /petitioner, in accordance with law. SD/- sks/1.2.2022 **C.S.DIAS, JUDGE**