Udayakumar @ Udayan v. Sudheer T.M., Adarsh S/o Ayyappan Thevar, Cholamandalam MSGI Co Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945** **MACA NO. 2334 OF 2013** **AGAINST THE ORDER/JUDGMENT OPMV 990/2008 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER:** UDAYAKUMAR @ UDAYAN S/O CHELLAPPAN, PUTHUVELI HOUSE, MALAYAKUNNU DESOM, SOUTH ADUVASSERRY P.O, NORTH PARAVUR BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENT/RESPONDENTS:** 1 SUDHEER T.M. S/O MATHAPPAN, H.NO IV/373-A, THAINAN HOUSE, SOUTH ADUVASSERY P.O, NORTH PARAVUR 683513 2 ADARSH S/O AYYAPPAN THEVAR, PALLIKKUNNATHPARAMBIL HOUSE, ADUVASSERY P.O, NORTH PARAVUR 683513 3 CHOLAMANDALAM MSGI CO LTD, COCHIN REGIONAL OFFICER, PALARIVATTOM P.O, 683513 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No.2334 of 2013 2 ## **JUDGMENT** The appellant is the petitioner in O.P.(M.V) No. 990/2008 on the files of the Motor Accident Claims Tribunal, Irinjalakuda. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.04.2008. 2. According to the appellant, the accident occurred when he was travelling in a goods vehicle bearing registration No.KL 7 X 8035 as the owner of the goods carried in the said vehicle, due to the rash and negligent driving of the said vehicle, it hit on another goods vehicle bearing registration No.KL 7 AS 3409. The 1[st] respondent was the owner, the 2[nd] respondent was the driver, and the 3[rd] respondent was the insurer of the goods vehicle in which the appellant was travelling. According to him, he was working as a manual labourer at the time of the accident with a monthly income of Rs.6,000/-. Due to the accident, he sustained severe injuries, which resulted in permanent disablement as well. The claim petition was submitted in such circumstances seeking compensation. M.A.C.A No.2334 of 2013 3 3. The 3[rd] respondent insurance company alone contested the matter by filing a written statement wherein they admitted the coverage of the policy, but they disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were also disputed by them. The said case was tried along with O.P(M.V) No. 1439/2008, which arose from the very same accident. 4. The evidence in this case consists of oral testimonies of PWs 1 to 3 and Exts.A1 to A14 from the side of the claimants. From the side of the respondents, Ext. B1 to B4 were marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the vehicle in which the appellant was travelling and being the insurer of the said vehicle, the 3[rd] respondent herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.96,264/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. M.A.C.A No.2334 of 2013 4 5. Heard Sri.P.V.Baby, the learned counsel appearing for the appellant and Sri. P Jacob Mathew, the learned counsel appearing for the 3[rd] respondent/insurance company. 6. The main dispute in this case relates to the quantum of compensation. The learned counsel for the appellant points out that the Tribunal miserably failed in determining a proper compensation under the head of physical disability, overlooking the fact that he sustained 12% physical disability as certified by the Doctor who was examined as PW1. As regards the monthly income, the learned counsel further points out that even though an amount of Rs.6,000/- was claimed, the Tribunal fixed the same as Rs.3,000/- which was grossly inadequate. 7. The learned counsel appearing for the insurance company would oppose the said contention by pointing out that a reasonable amount was already granted to the appellant under the said heads. 8. I have carefully gone through the records. As far as the monthly income taken by the Tribunal is concerned, I am of the view that the same does not appear to be in tune with the standard that prevailed in the year 2008, which is the year of the M.A.C.A No.2334 of 2013 5 accident. According to the appellant, he was working as a manual labourer, but no evidence to establish the same was adduced, apart from his own evidence as PW3. However, the crucial aspect to be noticed is that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], the monthly income of an ordinary employee, even in the absence of any evidence was fixed as Rs.4,500/- in respect of an accident occurred in the year 2004. In such circumstances, the monthly income of Rs 6,000/- as claimed by the appellant appears to be reasonable, as the accident occurred in 2008. 9. The next aspect relates to the percentage of disability. It is discernible that the Tribunal accepted a percentage of disability of 12% as certified by the doctor. The learned counsel for the appellant points out that this is a case in which the functional disability ought to have been fixed at a higher rate. However, in the evidence of PW1, it was categorically mentioned that his physical disability was 12%. While being examined as PW3, the appellant also did not give any reason for taking a higher percentage of disability for the same. Therefore, in the absence of any such materials, I am of the view that the percentage of M.A.C.A No.2334 of 2013 6 disability taken by the Tribunal can be accepted and it is accordingly fixed. 10. While reassessing the compensation for permanent disability with the monthly income of Rs.6,000/- and retaining the other criteria adopted by the Tribunal, the amount under the said head would come to Rs.1,29,600/-(6,000 x 12 x 15 x 12/100). The amount already awarded by the Tribunal is Rs.64,800/-; thus, the additional amount would come to Rs.64,800/-. 11. Another head on which the enhancement sought was towards pain and suffering. The amount already awarded by the Tribunal was Rs. 12,000/-. The appellant sustained severe injuries and underwent treatment as an inpatient for 22 days, and he suffered physical disability as well. Therefore, some more amount should certainly be granted under the said head. In the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs. 18,000/- under the said head. 12. Consequent to the revision of monthly income, the appellant would also be entitled to additional compensation for loss of earnings. It is to be noted that the Tribunal has awarded compensation under the said head for a period of two months. M.A.C.A No.2334 of 2013 7 Considering the nature of the disability and the employment of the appellant, I am of the view that the injuries could have certainly prevented him from pursuing his activities relating to the employment for a period of four months. Therefore, compensation under this head has to be calculated by fixing the monthly income as Rs. 6,000/- for a period of four months. Thus, the additional compensation receivable by the appellant under this head would come to Rs. 18,000/- [(6,000 x 4) – 6,000]. 13. No amount is awarded by the Tribunal for loss of amenities. Considering the nature of injuries, and the impact of the same on the life and employment of the appellant, I am of the view that, certainly a reasonable amount needs to be granted and in the facts and circumstances of the case, I deem it appropriate to fix it as Rs. 25,000/-. Thus, the total additional compensation receivable by the appellant is determined as Rs.1,25,800/- (64800 + 18000 + 18000 +25000) In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 22.02.2013 in O.P.(M.V) No. 990/2008 passed by the Motor Accidents Claims Tribunal, Irinjalakuda is hereby modified by granting additional M.A.C.A No.2334 of 2013 **==> picture [7 x 9] intentionally omitted <==** compensation of Rs.1,25,800/- (Rupees one lakh twenty five thousand and eight hundred only) and the 3[rd] respondent is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and with the proportionate cost within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk