Thomas.K.V. S/O.VARKEY v. Achathparambil Sreejith and United India Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938 MACA.No. 2766 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 1701/2006 of M.A.C.T., THALASSERY DATED 02-05-2012 APPELLANT(S)/PETITIONER: ------------------------------ THOMAS.K.V. S/O.VARKEY, KUREEKKAL , P.O.ANGADIKKADAVU, AYYANKUNNU AMSOM, DESOM, KANNUR DISTRICT, PIN-670706 BY ADVS.SRI.C.P.PEETHAMBARAN SMT.MINI.V.A. RESPONDENT(S):RESPONDENTS IN O.P.(MV) -------------------------------------------------- ## 1. ACHATHPARAMBIL SREEJITH S/O.THANKAN, ACHATHPARAMBIL HOUSE, KARIKKOTTAKARI, AYYANKUNNU AMSOM, P.O.KOOMANTHODE, KANNUR DIST. PIN-670704 ## 2. UNITED INDIA INSURANCE COMPANY LTD., REP.BY ITS DIVISIONAL MANAGER,DIVISIONAL OFFICE, KANNUR PIN-670001 R2 BY ADV. SRI.P.JACOB MATHEW R2 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR &** ## **K. P. JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.2766 OF 2012 ==========================** Dated this the 12[th] day of July, 2016 ## **JUDGMENT** _Ravikumar, J._ The appellant-petitioner who sustained injuries in a motor vehicle accident that occurred on 30.3.2006 at about 8.45 p.m at Angadikkadavu filed this appeal seeking enhancement of the compensation granted by the Motor Accidents Claims Tribunal, Thalassery as per judgment and award dated 2.5.2012 in O.P.(MV). No.1701/2006. While he was walking alongside the road, a motorcycle bearing Reg.No.KL-13 N/5435 coming from Angadikkadavu side knocked him down. Consequently, he sustained injuries and he was immediately taken to hospital. The appellantpetitioner had been an inpatient for a period of 59 days. In the accident, he sustained the following injuries going by Ext.A3 wound **M.A.C.A.2766/2012** 2 certificate and A5 series of discharge card issued from Pariyaram Medical College:- 1. Grade-IIIB open upper 1/3 lower 2/3 fracture both bones ® leg with severed crush injury to auterolateral compartment muscles. 2. Lateral popliteal nerve palsy. 3. Lacerated wound 5x1 c.m on the medial aspect of left eye brow extending to forehead. 4. Small lacerated wound 2.5/0.5 c.m just below the left elbow. 5. Extensive crushed and contaminated wound over ® leg with bone exposure. 2.Before the Tribunal, the petitioner got himself examined as PW1 besides getting marked Exts.A1 to A12. The respondent did not adduce any evidence, either oral or documentary. The Tribunal, on appreciation of the rival contentions and evaluation of the evidence on record, passed the impugned judgment granting a total compensation of `1,35,500/- with interest @ 7.5% per annum from the date of the petition till realisation. It is dissatisfied with the quantum of compensation granted that this appeal has been preferred. **M.A.C.A.2766/2012** 3 3.We have heard the learned counsel for the appellant and the learned counsel for the second respondent. It is submitted by both sides that there is absolutely no dispute regarding the accident, the cause of the accident as the rashness and negligence from the part of the first respondent, owner-cum-rider of the offending vehicle and also the insurance coverage of the offending vehicle. In short, the sole question to be considered is whether or not the appellant is entitled to get enhanced compensation in this appeal? 4.The learned counsel for the appellant contended that the Tribunal went wrong in fixing the monthly income for the purpose of calculating loss of earning as also compensation for the disability incurred as a result of the accident. In the claim petition, it was specifically stated that the appellant was an agriculturist and was earning `4,000/- per month. True that the appellant had not adduced any evidence to establish his occupation and income. But, at the same time, the question to be decided is whether the Tribunal is **M.A.C.A.2766/2012** 4 justified in fixing the monthly income as `3,000/- for the aforesaid purpose. It is to be noted that the accident occurred on 30.3.2006 and on the date of the accident, the appellant was aged 43 years. While considering the correctness or otherwise of the notional fixation of monthly income, we are of the view that it is only appropriate to bear in mind the decision of the Hon'ble Apex Court in **Ramachandrappa** ## **v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** wherein the Apex Court fixed the monthly income of a coolie who met with an accident in the year 2004 as `4,500/- for calculation purpose. In this case, the accident occurred on 30.3.2006 and the appellant was then aged only 43 years. In such circumstances, we are of the view that there is absolutely no reason to disbelieve the claim of the petitioner regarding his claim of monthly income. Accordingly, we fix the monthly income of the appellant as `4,000/-. The further contention of the appellant is that the Tribunal had erred in assessing percentage of permanent disability as 5%. In this context, it is to be noted that admittedly, the petitioner had not **M.A.C.A.2766/2012** 5 adduced any evidence to show that as a result of the accident he incurred permanent disability. In other words, no disability certificate was produced before the Tribunal. Even then taking into account the nature of the injuries borne out from Exts.A3 and A5 series of discharge card issued from Pariyaram Medical College and based on the examination of the claimant as PW1, the Tribunal assessed permanent disability incurred by the appellant in the accident as 5%. Thus, it is obvious that the Tribunal had the opportunity to see the appellant and to assess his physical condition. When that be the circumstances, we are of the view that the appellant is not justified to contend that the assessment of his permanent disability by the Tribunal invites interference. With respect to the multiplier, it can be seen that the Tribunal has correctly identified the multiplier with reference to the age of the appellant on the date of the accident. He was aged 43 years on the date of the accident and going by the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** multiplier to be **M.A.C.A.2766/2012** 6 applied in this case is 14 and it was correctly adopted. In such circumstances, based on the fixation of the monthly income as `4,000/-, the compensation for loss of earning and for incurring the disability has to be re-assessed. Towards loss of earning, the Tribunal granted an amount of `12,000/- for a period of three months obviously taking the monthly income only as `3,000/- . But, going through the nature of the injuries revealed from Exts.A3 and A5 series of discharge cards, we are of the view that the applicant must have been disabled from engaging himself in any sort of earning process at least for a period of 10 months. On taking the period of loss of earning as 10 months and taking the monthly income as `4,000/-, the appellant would be entitled to get `40,000/- towards loss of earning. But the Tribunal has already granted an amount of `12,000/- under that head. In such circumstances, the appellant is entitled to get an amount of `28,000/- over and above the amount granted by the Tribunal under that head. With the modified monthly income, the compensation for having incurred disability also has to be re-assessed. **M.A.C.A.2766/2012** 7 On such re-assessment, the appellant would be entitled to get an amount of `8,400/-, additionally. Towards bystander's expenses, the Tribunal granted an amount of `5,900/- for a period of 59 days at the rate of Rs.100/- per day. Taking note of the fact that the accident occurred in the year 2006, we are of the view that the appellant ought to have been granted `200/- per day towards bystander's expenses. In that view of the matter the appellant would be entitled to get an additional amount of `5,900/-. Towards pain and suffering, as against a claim of `50,000/-, the appellant was granted `19,000/-. We have already adverted to the injuries sustained by the appellant and also his period of hospitalisation. Taking note of the aforesaid factors, there can be little doubt with respect to the fact that the appellant must have had experienced severe pain. In such circumstances, we are inclined to grant `11,000/- more under that head. It is awarded. Towards loss of amenities and conveniences, the Tribunal had granted an amount of `4,000/- though no amount was specifically claimed thereunder. As noticed hereinbefore, it is to be noted that despite the failure of the **M.A.C.A.2766/2012** 8 appellant to adduce any evidence to establish that he had incurred permanent disability, the Tribunal assessed his permanent disability as 5%. Based on the re-fixed monthly income, the compensation for permanent disability has to be re-assessed. On such re-assessment, the appellant is entitled to get an amount of `11,000/- more under that head. It is granted. In the light of the above discussions, the appellant is entitled to get an additional compensation of `64,300/-. It is awarded. The additional compensation will bear 8% interest from the date of the petition till realisation. The second respondent is directed to deposit the said amount along with interest within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K. P. JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.2766/2012** 9 **M.A.C.A.2766/2012** 10 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.2766/2012** 11