Thomas v. Sreekumar, John C.F. Chettupuzha Corporation, United India Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943** **MACA NO. 1751 OF 2012** **AGAINST THE AWARD DATED 09.08.2011 IN OPMV 382/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** THOMAS, S/O LONAPPAN ALUKKAPARAMBIL HOUSE, ERAVIMANGALAM, NADATHARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ## **RESPONDENTS/RESPONDENTS:** - 1 SREEKUMAR, S/O SUKUMARAN MADAMBIKATTIL HOUSE, KUNNAMKULANGARA, KOORKKENCHERY PO, THRISSUR(DRIVER OF KL8/V7586 MINI LORRY) - 2 JOHN C.F. CHETTUPUZHA CORPORATION P.O. ROAD, THRISSUR TALUK THRISSUR DISTRICT. (OWNER OF KL8/V7586 MINI LORRY) - 3 UNITED INDIA INSURANCE COMPANY LTD. SREEKUMAR BUILDING, P.B.NO.1, SOUTH JUNCTION CHALAKKUDY, POLICY NO.100602/31/07/01/00007118 VALID FROM 30-9-07 TO 29-9-2008. BY ADV SMT.DEEPA GEORGE **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.1751 OF 2012 2** ## **JUDGMENT** **Dated this the 15[th] day of March, 2022** The appellant was the petitioner in O.P (MV) No.382/2008 on the file of the Motor Accidents Claims Tribunal, Ottapalam. 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 02.02.2008. It was his case that, on the above said date, while the appellant was riding a motorcycle bearing registration No. KL 8/AG 3208 from east to west, when he reached the Manorama Junction, a lorry bearing registration No. KL -8/V 7586, driven by the first respondent in a negligent manner, hit the motorcycle. The appellant sustained multiple injuries and was treated as an inpatient for a period of four days ## **MACA NO.1751 OF 2012 3** at the Jubilee Mission Medical College Hospital, Thrissur. The appellant had suffered a fracture of his left clavicle, fracture of left maxilla and a fracture of scapula neck left. The lorry was owned by the second respondent and insured with the third respondent. The appellant was a tailor by profession and was earning a monthly income of Rs.5000/-. Hence, the appellant claimed a compensation of Rs.3,85,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The other injured in the same accident had also filed O.P.(M.V) Nos.384/2008, 388/2008 and 511/2008 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents had filed separate written statements in all the claim petitions. The third respondent contended that the accident occurred due to the negligence of the appellant. The third respondent also disputed the age, income and occupation of all the ## **MACA NO.1751 OF 2012 4** petitioners. However, the third respondent had admitted that the lorry had a valid insurance coverage. 5. The Tribunal, consolidated and jointly tried all the claim petitions. 6. The appellant was examined as PW1 and Exhibits A1 to A16 were marked in all the claim petitions. The respondents had produced Exhibits B1 to B3. 7. The Tribunal, after analyzing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.25,450/- with interest and a cost of Rs.750/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.Sheji P. Abraham., the learned counsel appearing for the appellant/petitioner and Smt.Deepa George, the learned counsel appearing for the third respondent-insurer. ## **MACA NO.1751 OF 2012 5** 10. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Exhibit A5 charge sheet laid by the Thrissur Traffic Police in Crime No.108/2008 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Exhibit A5 charge sheet. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was a tailor by profession and was earning a monthly income of ## **MACA NO.1751 OF 2012 6** Rs.5000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.3000/-. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2008, I re-fix the notional monthly income of the appellant at Rs.5000/-, as claimed in the claim petition. ## **Loss of earnings** 15. Exhibit A2 wound certificate and Exhibit A8 disability certificate prove that the appellant had suffered a fracture of his left clavicle, fracture of left maxilla and a fracture of scapula neck left. He was a tailor by profession. He was treated as an inpatient for a ## **MACA NO.1751 OF 2012 7** period of four days. Taking into account the fact that the appellant was a tailor by profession, I hold that he was indisposed for a period of four months. 16. In view of the re-fixation of the notional monthly income of the appellant at Rs.5000/-, I award him an amount of Rs.20,000/- under the head ‘loss of earnings’, instead of Rs.6000/- awarded by the Tribunal. ## **Disability** 17. The appellant had produced Exhibit A8 disability certificate issued by the Senior Consultant Orthopedic & Arthroscopic Surgeon of the Aswini Hospital Limited, Thrissur, certifying that the appellant had a permanent disability of 9%. However, the Tribunal, for the reason that the appellant had not examined the Doctor who issued Exhibit A8 disability certificate, discarded Exhibit A8. 18. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable Supreme Court has categorically held that if the Tribunal is dissatisfied with the disability ## **MACA NO.1751 OF 2012 8** certificate produced before it, it is the duty of the Tribunal to refer the to a injured-claimant duly constituted Medical Board. Likewise, it is held that if the disability certificate is marked with the consent of the parties, then the same can be accepted in evidence. Similarly, it is also held that what needs to be looked into in a injury claim is the functional disability of the injured-claimant. 19. In the instant case, Exhibit A8 disability certificate was marked without any objection or protest from the respondents. The Tribunal also did not have any suspicion with Exhibit A8 and did not refer the appellant to a Medical Board. In the above circumstances, I am of the firm view that Exhibit A8 has to be accepted on its face value. 20. On an evaluation of Exhibit A8, it is seen that the appellant has pain on lifting the left upper limb above 90 degree and he has lost the movement of his left shoulder. Taking into account the fact that the appellant ## **MACA NO.1751 OF 2012 9** is a tailor by profession, I hold that he has a functional disability of 5%. ## **Multiplier** 21. The appellant was aged 40 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘15’. ## **Loss of earning capacity** 22. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.5000/-, his functional disability at 5% and the multiplier at ‘15’, I award him an amount of Rs.45,000/towards ‘loss of earning capacity’. ## **Pain and sufferings and Loss of amenities** 23. The Tribunal has awarded an amount of Rs.10,000 under the head ‘pain and sufferings’ and Rs.3000/- under the head’ loss of amenities’. **MACA NO.1751 OF 2012 10** 24. On a consideration of the fact that the appellant had sustained three fractures, that he was treated as an inpatient for a period of four days, that he was indisposed for a period of four months and that he has suffered a functional disability of 5%, I award him a further amount of Rs.10,000/- under the head ‘pain and sufferings’ and a further amount of Rs.7000/- under the head ‘loss of amenities’. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. ## **MACA NO.1751 OF 2012 11** |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|6000|20000| |2|Transport|1000|1000| |3|clothing|500|500| |4|By-stander<br>expenses|800|800| |5|Extra<br>nourishment|400|400| |6|Medical<br>expenses|3750|3750| |7|Pain and<br>sufferings|10000|20000| |8|Loss of amenities|3000|10000| |9|Loss of earning<br>capacity|0|45000| ||Total|25,450/-|101450<br>rounded off<br>to Rs.101500| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.76,050/-** with interest at the rate of 6% per annum ## **MACA NO.1751 OF 2012 12** from the date of petition till the date of deposit, and a cost of Rs.5,000/-. The third respondent - insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of this judgment. Immediately, on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/15/03/2022