Tomy v. M.A. Anil Kumar and The Oriental Insurance Co. Ltd.

MACA NO. 1727 OF 2009 **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944** ## **MACA NO. 1727 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1268/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** TOMY PADINJAKKARA HOUSE,PARIYARAM VILLAGE,, ELINJIPRA DESOM. BY ADV A.N.SANTHOSH ## **RESPONDENT/S:** - 1 M.A.ANILKUMAR MANNOOR HOUSE,MACHIRA DESOM,KODASSERY P.O. - 2 THE MANAGER THE ORIENTAL INSURANCE CO.LTD.,BRANCH OFFICE,, CITY HEIGHTS BUILDING,SOUTH JUNCTION,CHALAKUDY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1727 OF 2009 **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.1268/2002 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. 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 20.4.2002. It was his case that, on the abovesaid day, while he was travelling on a motorcycle bearing Reg.No.KL-2/E-6061 through the Chalakudy National Highway, a Jeep bearing Reg.No.KLM-7548 (Jeep), driven and owned by the 1st respondent in a negligent manner, hit the motorcycle. The appellant had sustained multiple injuries, including a fracture of his right femur, MACA NO. 1727 OF 2009 **3** fracture of his right tibia, fracture of his right clavicle and commuted fracture in the condyle of his tibia. He was treated as an inpatient at the St.James Hospital, Chalakudy for a period of 15 days. The Jeep was insured with the 2[nd] respondent. The appellant was self-employed and was earning a monthly income of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.2,34,000/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The 1[st] respondent did not contest the proceeding and was set ex parte. 4. The 2[nd] respondent had filed a written statement admitting that the Jeep had a valid insurance coverage. However, it was stated that the 1[st] respondent did not hold a valid driving licence. 5. The appellant had produced and marked Exts.A1 to A7 in evidence. The respondents did not let in any evidence. MACA NO. 1727 OF 2009 **4** 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the 2[nd] respondent an amount of Rs.84,600/- with interest and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.A.N.Santhosh, the learned counsel appearing for the appellant/petitioner and Smt.K.S.Shanthi, the learned counsel appearing for the 2[nd] respondent- insurer. 9. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Ext.A2 charge-sheet filed by the Police proves that the accident occurred due to the negligence of the 1[st] respondent. Indisputably, the 2[nd] respondent was the **5** MACA NO. 1727 OF 2009 insurer of the Jeep. The respondents have not let in any evidence to discredit Ext.A2 charge-sheet. The 2[nd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a business man by profession and was earning a monthly income of Rs.5,000/-. He did not produce any material to prove his income. Accordingly, the Tribunal fixed the notional monthly income of the appellant at Rs.2,000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. MACA NO. 1727 OF 2009 **6** 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2002, I re-fix the notional monthly income of the appellant at Rs.3,500/-. ## **Loss of earnings** 14. The Tribunal found that the appellant was indisposed for a period of four months. I confirm the finding. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.3,500/-, I award him an amount of Rs.14,000/- under the head ‘loss of earnings’, instead of Rs.8,000/- awarded by the Tribunal. ## **Loss due to disability** 16. The appellant had produced Ext.A6 disability certificate issued by the Orthopaedic Consultant who had certified that the appellant was having a permanent disability of 13%. The Tribunal, for the reason that the MACA NO. 1727 OF 2009 **7** appellant had not examined the Doctor who issued Ext.A6, discarded the said disability certificate. 17. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC], the Hon'ble Supreme Court has categorically held that, what needs to be looked into in an injury claim is the functional disability of the injured-claimant. It is also held that, if the Tribunal is not satisfied with the disability certificate produced before it, it is the duty of the Tribunal to refer the injured-claimant to a Medical Board. It is further held that, if the disability certificate is marked in evidence without any protest or objection from the respondents, the same can be taken on its face value. 18. In the instant case, Ext.A6 disability certificate was marked in evidence by the appellant without any objection from the respondents. Even though the Tribunal was not satisfied with the disability certificate, it did not refer the appellant to a Medical Board. In the said circumstances, following the principles laid down in **Raj** MACA NO. 1727 OF 2009 **8** **Kumar** (supra), I am inclined to take Ext.A6 disability certificate on its face value. 19. On an appreciation of Ext.A6, I find that the appellant has a split-up disability of 13% and whole body disability 10.10%. 20. Taking into account the fact that the appellant was a business man and he has difficulty in climbing stairs, I am of the firm view that his functional disability can be fixed at 10%. ## **Multiplier** 21. The appellant was aged 42 years at the time of the accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '14' . ## **Loss of earning capacity** 22. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.3,500/-, his functional disability at '10%' and the MACA NO. 1727 OF 2009 **9** multiplier at '14', I award him an amount of Rs.58,800/towards ‘loss of earning capacity’. ## **Other heads of compensation** 23. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 24. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore cited decisions, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. MACA NO. 1727 OF 2009 **10** **==> picture [435 x 382] intentionally omitted <==** **----- Start of picture text -----**<br> SI.No Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>rupees) recalculated by<br>this Court<br>1 Loss of earnings 8,000 14,000<br>2. Transport to hospital 1,000 1,000<br>3. Bystander expenses 1,500 1,500<br>4. Medical Expenses 44,100 44,100<br>5. Pain and suffering 20,000 20,000<br>6. Loss of amenities 10,000 10,000<br>---<br>7. Loss of earning capacity 58,800<br>Total 84,600 1,49,400<br>======== ====== ===<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.64,800/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting the interest for a period of 468 days ( i.e. the period of delay in filing the appeal and as ordered by this Court on **11** MACA NO. 1727 OF 2009 30.11.2021 in C.M.Appli.No.2 of 2009) and a cost of Rs.5,000/-. The 2nd respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. ma/31/3/2022 **Sd/- C.S.DIAS, JUDGE**