Theri Karikutty and Seetha v. K. Hamza and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938 MACA.No. 1895 of 2007 ( ) -------------------------AGAINST THE AWARD IN OPMV 1197/2002 of M.A.C.T., MANJERI DATED 26-06-2007 APPELLANT(S)/PETITIONERS:: ---------------------------------- 1. THERI KARIKUTTY, S/O. SANKARAN, - AGED 41, KUDIKKIL HOUSE, KONDOTTY AMSOM, KONDOTTY P.O., MUNDAPPALAM, MALAPPURAM DISTRICT. 2. SEETHA, W/O. THERI KARIKUTTY, AGED 37 YEARS, KUDIKKIL HOUSE, KONDOTTY AMSOM, KONDOTTY P.O., MUNDAPPALAM, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S)/RESPONDENTS:: --------------------------- 1. K. HAMZA, S/O. VEERAN, RULIKKALAM KUNNU, MORAYOOR VIA., MONGAM (DRIVER). 2. MANAGING PARTNER, AGHIN ROADWAYS, MOOLAKKADAVU, PANAKKAL, MAHE (OWNER). 3. UNITED INDIA INSURANCE CO. LTD., RAMANATHAPURAM, COIMBATORE, TAMILNADU. 4. PANALI CHEKUTTY, S/O. KAMMED KUTTY, KODAVALAPPIL HOUSE, KONDOTTY AMSOM, MUNDAPPALAM (DRIVER). 5. M. FAIZAL MANNATHODIKA, S/O. MOOSAKUTTY, VATTAPPARAMBIL HOUSE, KONDOTTY P.O., MALAPPURAM DISTRICT- (OWNER). 6. NATIONAL INSURANCE CO. LTD., KORAMBAYIL ARCADE, PENDIKKAD ROAD, MANJERI - (INSURER). R3 BY ADV. SMT.P.K.SANTHAMMA R6 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K. P. JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1895 OF 2007 ==========================** Dated this the 14[th] day of July, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is filed seeking enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Manjeri in O.P. (MV).No.1197/2002. The first appellant was travelling in an autorickshaw bearing Reg.No.KL-10M 2040 from Kondotty to Kolathur. When the autorickshaw reached Kondotty, a lorry bearing Reg.No.PY-03-2394 driven by the first respondent came from the opposite direction and hit against the autorickshaw. Consequently, the first appellant sustained grievous injuries and he was immediately taken to Medical College Hospital, Kozhikode. He had different spells of hospitalisation in connection with the treatment and **M.A.C.A.1895/2007** 2 altogether, he had been an inpatient for a period of 72 days. He filed the above mentioned claim petition seeking a compensation of `10,00,000/-. Pending the claim petition before the Tribunal, the wife of the first appellant viz., the second appellant herein filed I.A.Nos.824/2006 and 825/2006 in representative capacity to implead her as next friend on the ground that as a result of the accident, the first appellant became mentally disordered and bed ridden. Evidently, the said interlocutory applications were allowed. In fact, there was no legal requirement to permit the second appellant to get impleaded in her individual capacity and on satisfying the prayer, she ought to have been permitted only to represent the first appellant as his next friend. Both the sides did not adduce any oral evidence before the Tribunal. On the side of the appellant, Exts.A1 to A11 were got marked. On the side of the respondents, copy of the charge sheet filed in the crime registered in connection with the aforesaid accident was got marked as Ext.B1 and Ext.X1 is the disability certificate in respect of the first appellant-petitioner. The Tribunal considered the documentary **M.A.C.A.1895/2007** 3 evidence consisting of Exts.A1 to A11, Ext.B1 and Ext.X1 and the rival contentions and passed the impugned award granting a total compensation of `2,39,341/- with interest at 7% per annum from the date of the petition till realisation. It is dissatisfied with the quantum of compensation and seeking for its enhancement that the captioned appeal has been preferred. 2.We have heard the learned counsel for the appellants, the learned counsel for the third respondent and the learned counsel for the sixth respondent. On 19.2.2016, this Court passed an order dispensing with notice to respondents 1 and 2. Though notice was served on respondents 4 and 5, they have not chosen to enter appearance and contest the matter. 3.In this appeal, second appellant has filed I.A.No.939/2016 with the prayer to refer the first appellant before the District Medical Board, Medical College Hospital, Manjeri for assessing the disability **M.A.C.A.1895/2007** 4 sustained by him. In this context, it is to be noted that earlier, pursuant to an order passed by the Tribunal, the first appellant appeared before the District Medical Board and his permanent disability was assessed. Virtually, the aforementioned I.A is now, filed seeking to refer the first appellant before the same board. We are of the view that if the appellants were dissatisfied with the assessment made by the District Medical board pursuant to which Ext.X1 disability certificate was issued and if they are doubting the correctness of the assessment made by the District Medical Board thereunder, an application for referring the first appellant before the State Board for assessing disability ought to have been filed before the Tribunal. Evidently, this appeal has been preferred in the year 2007. The circumstances mentioned in the aforementioned I.A were existing even at that point of time. Still the application was not filed along with the appeal. Evidently, this application has been filed only when this matter got ripe for final hearing i.e., on 6.3.2016. Taking note of the fact that the accident occurred on 7.2.2002 and the aforementioned **M.A.C.A.1895/2007** 5 circumstances at this distance of time, we are not inclined to allow the said I.A and consequently, it will stand dismissed. In such circumstances, we are proceeding with the consideration of this appeal. 4.The learned counsel for the appellant submitted that taking into account the fact that the accident occurred in the year 2002, the fixation of monthly income as `2,000/- cannot be sustained. The learned counsel submitted that to consider the question whether an enhancement of the monthly income is required or not, it would be just to look into the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** The accident involved in that case occurred in the year 2004. For calculation purpose, in respect of the applicant therein who was a coolie, the Apex Court fixed the monthly income as `4,500/-, notionally. True that the accident in question occurred about two years prior to the said **M.A.C.A.1895/2007** 6 accident. In such circumstances, we are of the view that it would only be just and proper to fix the monthly income of the first appellant for calculation purpose as `3,500/-. Accordingly, it is fixed. The learned counsel further contended that the multiplier was not correctly adopted by the Tribunal. The first appellant was aged only 43 years on the date of the accident. Taking note of the documents that formed part of the records, the first appellant belonged to the age group 40-45 years at the time of the accident. In the light of the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the multiplier applicable in respect of persons belonging to the age group of 41-45 years is 14. Hence, the multiplier is fixed as 14. The Tribunal took '13' as the multiplier. In view of the fact that we have rejected the application for sending the first appellant again before the same medical board which had already assessed the disability and also taking note of the fact that the Tribunal had accepted the entire percentage of disability certified under Ext.X1, the amount payable for the disability incurred in the **M.A.C.A.1895/2007** 7 accident has to be re-assessed taking note of the modified multiplier and the multiplicand. On such assessment, the appellants would be entitled to get an amount of `2,94,000/- . But the Tribunal has already granted an amount of `1,56,000/-. Therefore, the appellants are entitled to get an amount of `1,38,000/- over and above the amount fixed by the Tribunal. While considering the question whether enhancement is required for the amount granted towards transportation expenses, the fact that the first appellant had 30 reviews has to be taken into consideration. The fact that the first appellant had 30 reviews was duly taken note of by the Tribunal as is obvious from the impugned judgment. Taking into account the said aspect, we are of the view that the amount granted by the Tribunal towards transportation expenses is too inadequate. In such circumstances, we are inclined to grant `15,000/- more under that head. Hence, it is granted. The Tribunal granted an amount of `7,200/- under the combined head of extra nourishment and bystanders expenses. It is a fact borne out from the records that the first appellant had been an **M.A.C.A.1895/2007** 8 inpatient for a period of 72 days. In such circumstances, we are of the view that the amount granted by the Tribunal under the said combined head is also inadequate. Taking note of the fact that the accident occurred in the year 2002, the rate of bystanders expenses ought to have been fixed as `150/- per day. We are also of the view that the rate of expenses towards extra nourishment also ought to have been `100/- per day. In such circumstances, we are inclined to grant an amount of `10,800/- additionally under that combined head. Towards loss of income, the Tribunal took the period as one year at a rate of `2,000/- per month. The Tribunal granted a compensation of `24,000/- for the said period. Since we have fixed the monthly income as `3,500/-, the appellants would be entitled to get an amount of `18,000/- more for the said period. Towards future treatment, the Tribunal granted only an amount of `10,000/-. While considering the said question, Ext.A2 and Ext.X1 are to be taken into account. Going by Ext.A2, the first appellant sustained the following injuries:- Lacerated wound (R) elbow and skull, **M.A.C.A.1895/2007** 9 contusion (R) hand 3 x 2 cm. X-ray revealed the following:- C.spine fracture C5, sd effusin frontoparietal region and head injury . As noticed hereinbefore, Ext.X1 revealed that he had incurred 50% disability. We are of the view that the compensation granted towards future treatment is also too meager. We are inclined to grant `20,000/more under that head and accordingly, it is granted. Towards pain and suffering, the Tribunal granted an amount of `25,000/-. The nature of the injuries and its impact mentioned hereinbefore constrain us to hold that the appellants are entitled to get `15,000/- more under that head. It is awarded. In the light of the enhancement made by us under the aforesaid heads, the appellants are entitled to get a total enhanced amount of `2,16,800/-. The sixth respondent is directed to deposit the said additional compensation with interest at 8% per annum from the date of the petition till realisation within a period of three months from the date of receipt of a copy of this judgment **M.A.C.A.1895/2007** 10 failing which the amount remaining to be paid will carry interest at 9%. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/K. P. JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1895/2007** 11 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1895/2007** 12