Thankachan K.U. v. Reji Mathew & ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944** **MACA NO. 2170 OF 2012** **AGAINST THE AWARD DATED 02.05.2012 IN OPMV 2464/2007 OF** **MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** **THANKACHAN K.U AGED 51 YEARS S/O. ULAHANNAN, KOCHUPARAMBU VEEDU, NEAR MARKET, SOUTH PARAVUR, MANAKUNNAM VILLAGE.** **BY ADVS. SRI.T.K.RADHAKRISHNAN SRI.T.B.GAFOOR** ## **RESPONDENTS/RESPONDENTS:** - **1 REJI MATHEW S/O. A.P.MATHACHAN, ARUKAKKAL, 29/304 E, LANE NO.43, JANATHA ROAD, VYTTILA, ERNAKULAM-682 019.** - **2 DEEPU PAUL S/O. PAULOSE A.K., ARUKAKKAL, KANAYANNUR, CHOTTANIKKARA P.O., PIN-682 312.** **3 K.M.YOUSUF S/O. MEETHIYAM, KEEZHATHOTTATHIL HOUSE, MARAMPILLY P.O., ALUVA-683 107.** - **4 NATIONAL INSURANCE CO. LTD. KOCHI BRANCH, PIN-683 101.** - **5 THE ORIENTAL INSURANCE COMPANY LTD. ALUVA BRANCH, PIN-683 107.** **6 UNITED INDIA INSURANCE COMPANY LTD. KOTTAYAM BRANCH-686 001. BY ADVS. SRI.ABRAHAM P.GEORGE SRI.S.K.AJAY KUMAR SRI.P.MURALEEDHARAN SRI.VPK.PANICKER SMT.M.SANTHY SRI.K.VINODKUMAR 70789** **SRI. S.K AJAYAKUMAR - R4, SRI. VPK.PANICKER - R5, SRI.P. MURALEEDHARAN - R6** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2170 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.2464/2007 on the file of Motor Accidents Claims Tribunal, Ernakulam. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant in a motor accident occurred on 29.05.2007. Three vehicles are involved in the said accident. It is alleged that car dashed against the Scooter first and subsequently dashed against the lorry. It is also alleged that drivers, of the car as well as the lorry are responsible for the accident. Respondents 1, 2 and 4 are the owner, driver and insurer of the offending car. Respondents 3 and 5 are the owner and insurer of the offending lorry. 6[th] respondent is the insurer of the motorcycle driven by the appellant. Total compensation of Rs.3,82,500/ has been claimed. 2. Before the Tribunal, 4[th] respondent insurer of the offending car filed written statement admitting the insurance coverage with respect to the car bearing Registration No.KL 07/BD 8762. Rashness and negligence attributed against the 2[nd] respondent is denied. It is also M.A.C.A No. 2170 of 2012 **3** contended that the accident happened due to the rash and negligent riding of the Scooter by the appellant himself. 5[th] respondent insurer of the lorry filed written statement admitting the policy coverage with respect to the lorry bearing Registration No. KL 8/B-6649. It is also contended that the accident happened out of the collision between car and scooter and due to the rash and negligent driving of the 2[nd] respondent, driver of the car and hence their liability is denied. 6[th] respondent filed written statement admitting the policy coverage with respect to the scooter. 3. Exts. A1 to A21 and X1 marked from the side of the appellant. There is no oral evidence from either side. On evaluation of the pleadings as well as documents, Tribunal found that the accident occurred due to the rashness and negligence on the part of the 2[nd] respondent, hence the 1[st] respondent is held liable for the act of the 2[nd] respondent and 4[th] respondent is held vicariously liable to indemnify the 1[st] respondent ,insured. Other respondents are exonerated. Tribunal awarded a total compensation of Rs.26,449/- under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant approaches this Court in appeal for various M.A.C.A No. 2170 of 2012 **4** grounds stated in the memorandum of appeal. 5. Heard the learned counsel for the appellant and the learned Standin Counsel for the insurers,Sri.S.K.Ajaya Kumar,Sri.V.P.K.Panicker And Sri.Muraleedharan 4[th] 5[th] and 6[th] respondents. Lower court records were called for and perused. 6. According to the learned counsel for the appellant, appellant was a Manager in an Auto Private Limited and claimed a monthly income of Rs.7,000/-. Tribunal taken the monthly income of the claimant notionally as Rs.5,000/-. That is very low. It is also contended that duly constituted Medical Board has assessed permanent neurological disability of 9%. But Tribunal refused to accept the disability assessed by the Medical Board. That is illegal and improper. It is also contended that compensation awarded under the head of pain and suffering, bystander expenses etc. are very low and hence he seeks for enhancement of compensation on all heads. 7. Appellant produced Ext.A20 salary certificate issued from Mapssons & Co. Auto Pvt. Ltd,but in which monthly salary of the appellant is not stated. The employer was not examined. So no evidence as such has been adduced by the appellant to prove his income. The accident was in the year 2007. Based on the principles M.A.C.A No. 2170 of 2012 **5** laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** I am of the considered view that Rs.6,000/- can notionally be taken as monthly income of the appellant. 8. To prove injuries and treatment undergone by the appellant, appellant produced Ext.A6 wound certificate issued from Welcare Hospital ;Ext.A10 discharge card issued from the same hospital ; Ext.A11 treatment summary issued from Lakeshore Hospital as well as Ext.A9 medical bills. Ext.A6 wound certificate issued from Welcare Hospital dated 29.05.2007 would show that immediately after the accident he had been examined by the Doctor and injuries noted are multiple abrasion over face, extra cranial head injury. Ext.A10 discharge card issued from Welcare Hospital would go to show that he was admitted from 24.08.2007 to 26.08.2007. It is also noted as brief Clinical History, now presented with headache. C.T. Head shown as B/C CSDH. He was reviewed after one week. On 01.09.2007, again taken C.T. Head which would reveal that B/C CSDH persisting. Brain also looks in tight. Ext.A11 treatment summary issued from Lakeshore Hospital & Research Centre Ltd. dated 23.10.2007 would show that patient has a history of road traffic accident three months back and C.T M.A.C.A No. 2170 of 2012 **6** scan of brain done showed subacute, subdural hematoma which was then treated conservatively. Another CT scan done three weeks back showed persistence of subdural hematoma but no worsening. He was advised to review after three weeks or if any symptoms develop in the interim. 9. Ext.X1 is the disability certificate issued by the Medical Board certifying 9% permanent neurological disability. The learned Standing Counsel for the insurer strongly objects in accepting disability certificate issued by the Medical Board since it was assessed after five years of the accident. It was also contended that no treatment records has been produced after 2007 to prove that the disability sustained is due to the accident. Tribunal also refused to accept disability certificate of the Medical Board for the reason that it was not supported by any medical evidence. 10. It is to be noted that X1 disability certificate is issued by the Medical Board on examination of the appellant. Ophthalmologist and ENT Surgeon also put signature on the certificate. It would show that the Board examined the appellant in the year 2012. It would further state that on evaluating the documents, discharge summary from Welcare Hospital as well as CT report of brain reveal that he has M.A.C.A No. 2170 of 2012 **7** occasional head ache. Ext.X1 disability certificate has been issued by a duly constituted Medical Board. As per **Raj Kumar** (supra), if at all the Tribunal is not satisfied with the genuineness of the disability certificate issued by the Medical Board, it ought to examine any of the members of the board for ascertaining the genuineness of the certificate. Without adopting that course, unilaterally discarding the disability certificate issued by the Medical Board is improper and illegal. Hence I am inclined to accept Ext.X1 certificate issued by the Medical Board and award compensation to the appellant in accordance with that. 11. Copy of the S.S.L.C book has been produced which would prove that on 29.05.2007, he was 46 years old. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '13'. So, towards permanent disability, appellant is entitled to get 6,000x12x13x9/100= **84,240/-** . 12. Tribunal awarded loss of earning for one month. That can be maintained. Hence, towards loss of earnings, claimant is entitled to get **Rs.1000/-** (6,000-5000). 13. The learned counsel would contend that only Rs.8,000/- M.A.C.A No. 2170 of 2012 **8** has been awarded towards pain and suffering. It has come out from the disability certificate issued from the Medical Board that he had occasional head ache due to the accident and resultant injuries. Taking into account the fact that injuries sustained to the appellant is on the head, Rs.15,000/- is awarded towards pain and suffering. Deducing the amount already granted, the balance would be **Rs.7,000/-** (15,0008,000). Towards the bystander expenses, Tribunal awarded only Rs.500/-. It has come out that he had undergone 4 days inpatient treatment. Since the accident was in the year 2007, Rs.250/- per day can be awarded towards bystander expenses. Hence under the head of by stander expenses, claimant is entitled to get 250x4=1,000. After deducting the amount already awarded, the balance would be **Rs.500/-** (1,000-500). Hence, the claimant is entitled to get an enhanced compensation of Rs.92,740/- (84,240+7,000+500+1,000) rounded to **Rs.92,750/-** . 14. In the result, claimant is allowed to realize an enhanced compensation of **Rs.92,750/-** (Ninety two thousand seven hundred and fifty only) in this appeal, which will carry interest at the rate of 6.5% per annum from the date of petition till realization. Respondent No.4 is directed to pay the enhanced compensation granted in this appeal, M.A.C.A No. 2170 of 2012 **9** together with interest, within a period of two months from the date of receipt of certified copy of this judgment. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal with copy to the Standing Counsel for insurer within one month from the date of receipt of certified copy of this judgment. SD/- rps/ **M.R.ANITHA JUDGE**