Thankachan v. Siva Manohar and The Manager, Royal Sundaram Alliance Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944** **MACA NO. 1323 OF 2012** **AGAINST THE AWARD IN OP(MV)NO.837/2009 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, PALA, DATED 19.03.2012** ## **APPELLANT/PETITIONER:** **THANKACHAN, S/O.ITTY GOPALAN, AGED 43 YEARS, THENGINATHEKKETHIL HOUSE, NEERIKKADU P.O., NOW RESIDING AT THAYYIL HOUSE, THEKKUMURI KARA, PULIYANNUR VILLAGE, KOTTAYAM DISTRICT.** **BY ADV SRI.SHIJU VARGHEESE** ## **RESPONDENTS/RESPONDENTS :** ***1 SIVA MANOHAR, S/O.RAMAN NAIR, VATTAPARAMBIL HOUSE, PERUMANORKULKAM BHAGAM, MANARAKKADU P.O., KOTTAYAM-686019(DELETED) THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 13.12.2021 IN IA 1/2021.** **2 THE MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., SUNDARAM TOWERS, 46, WHITES ROAD, ROYAPETTA, CHENNAI-600 014.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 02.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1323 of 2012 **==> picture [46 x 8] intentionally omitted <==** ## **MACA No.1323 of 2012 -----------------------------------------------** ## **J U D G M E N T** This is an appeal filed under Section 173 of the Motor Vehicles Act, as opted by the petitioner in O.P. (MV)No.837 of 2009 on the file of the Motor Accidents Claims Tribunal, Pala, challenging award dated 19.03.2012 in the above case. Quantum of compensation is under challenge in this appeal. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the insurance company, the second respondent. 3. Brief facts of the case are as follows: The allegation of the appellant is that on 13.03.2009 at about 4.00 p.m., while he was riding a MACA No.1323 of 2012 **==> picture [46 x 8] intentionally omitted <==** scooter bearing Registration No.KL-5/G 7397, a maruthi van bearing Registration No.KL-5/X 7025 driven by the first respondent hit on the Scooter and thereby, the appellant sustained serious injuries. Alleging negligence on the part of the first respondent, the appellant claimed compensation to the tune of Rs.6,00,000/-. 4. R2 filed written statement and admitted the policy to the Maruthi Van bearing Registration No. KL-5/X 7025, while disputing quantum of compensation. 5. The Tribunal marked documentary evidence comprised of Exts.A1 to A13 on the side of the appellant. No evidence let in by the respondents. Ext.X1, the disability certificate also was marked. On appreciation of evidence, the Tribunal granted Rs.95,455/- along with 7.5% interest as against the claim of Rs.6,00,000/-. 6. It is submitted by the learned counsel for the appellant that though the appellant claimed his monthly MACA No.1323 of 2012 ..4.. income at Rs.6,000/- being a lottery agent. The Tribunal fixed the same at Rs.3,000/-. Following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** , Rs.6,000/- claimed by the appellant is liable to be accepted in this case, involving accident is of the year 2009. This aspect is not opposed by the other side also. Therefore, the monthly income is re-fixed at Rs.6,000/- per month. 7. It is submitted by the learned counsel for the appellant that, though as per Ext.X1 disability certificate, 30% orthopaedic disability and 11.2% whole body disability were assessed, the Tribunal accepted the whole body disability and not considered the orthopaedic disability. Therefore, he pressed for re-consideration of the disability, as such. 8. Per contra, the learned counsel for the insurer would submit that the Tribunal accepted the whole MACA No.1323 of 2012 ..5.. body disability as such and therefore, the appellant cannot canvass disability more than 11.2%, in a case where, the job of the appellant as lottery agent is not established in any manner. 9. On perusal of Ext.X1, the Medical Board assessed 11.2% whole body disability, after observing that the orthopaedic disability of the appellant due to optic atrophy right eye, ankylosis right knee following fracture of right femur. In fact, the occupation disability is not assessed or the occupation of the appellant is not proved in this matter. Therefore, nothing more than 11.2% can be accepted as disability. 10. In this matter, the appellant, who sustained comminuted fracture of right femur, was treated for a period of 23 days from 13.03.2009 to 06.04.2009, as born out from Ext.A7 discharge card and Ext.A6 copy of wound certificate issued from the Medical College Hospital, MACA No.1323 of 2012 **==> picture [46 x 8] intentionally omitted <==** Kottayam. 11. In this matter, the Tribunal granted loss of earnings for a period of three months at the rate of Rs.3,000/-. Considering the fracture of right femur, I am inclined to grant loss of earnings for a period of four months at the rate of Rs.6,000/- per month. The same is re-calculated as under; 6,000x4=24,000/- Out of which, Rs.9,000/- was granted by the Tribunal. Rs.24,000-9000= **Rs.15,000/-** more is granted under the head loss of earnings. 12. In this matter, admittedly, the age of the appellant is 41 years. The disability income also requires re-calculation by fixing the proper multiplier as '14' as against '15' fixed by the Tribunal, since the appellant is a person in the age group between 41 to 45. Thus, the loss of disability income is re-calculated as under; MACA No.1323 of 2012 **==> picture [46 x 8] intentionally omitted <==** 6,000x12x14x11.2%=1,12,896/- Out of which, Rs.60,480/- was granted by the Tribunal. Rs.1,12,896-60,480= **Rs.52,416/-** more is granted under the head loss of disability income. 13. Coming to the heads pain and sufferings and loss of amenities, the Tribunal granted Rs.7,500/- each under these heads and the same is on lower side. Therefore, **Rs.10,000/-** more is granted under the head 'pain and sufferings' and **Rs.8,000/-** more is granted under the head 'loss of amenities'. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of Rs.85,416/-(Rupees Eighty Five Thousand Four Hundred and Sixteen only) at the rate of 7.5% interest granted by the Tribunal excluding the amount already granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is MACA No.1323 of 2012 ..8.. directed to deposit the same in the name of the appellant within two months from today and on deposit, the appellant is at liberty to release the same. Sd/- **A.BADHARUDEEN, JUDGE** rkj