United India Insurance Co. Ltd. v. K. Sunil Kumar and Balachandran Nair, MACA No. 983-2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943 MACA NO. 983 OF 2011** **AGAINST THE AWARD DATED 30.03.2010 IN OPMV 81/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM APPELLANT/SECOND RESPONDENT IN THE O.P.(M.V):** THE UNITED INDIA INSURANCE CO.LTD. NEYYATTINKARA BRANCH, REP. BY THE MANAGER,, UNITED INDIA INSURANCE CO. LTD.,, OFFICE OF THE REGIONAL MANAGER,, HOSPITAL ROAD, ERNAKULAM. BY ADVS. SRI.M.A.GEORGE SMT.DEEPA GEORGE ## **RESPONDENTS/PETITIONER AND RESPONDENT NO.1 IN THE O.P.(M.V):** 1 K.SUNIL KUMAR S/O.KARTHIKEYAN NAIR,, SAROJ BHAVAN, THATHIYOOR, THATHIYOOR DESOM,, MARAYAMUTTOM P.O., PERUMPAZHUTHOOR VILLAGE. 2 BALACHANDRAN NAIR 'USHAS', OORUTTUKALA,, PERUMPAZHUTHOOR VILLAGE,, NEYYATTINKARA (DIED). BY ADVS. SRI.K.RAJESH KANNAN SRI.P.SHANES THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.983-2011 ## **Dated this the 17[th] day of November, 2021.** ## **JUDGMENT** The appellant-insurer was the 2[nd] respondent in OP(MV) No.81/2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in the appeal were the petitioner and 1[st] respondent before the Tribunal. The parties are, for the sake of convenience referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 163A of the Motor Vehicles Act, 1988(in short ‘Act’), claiming compensation on account of the injuries sustained to him in an accident on 17.08.1999. It was his case that, on the above said date, while he was riding his motorcycle bearing registration No.KL-01L5844, along the Balaramapuram- Neyyattinkara Public road, a scooter bearing registration No. KL -01-G 4984 (scooter) driven by the 1[st] respondent in a rash and negligent manner, hit the motorcycle of the petitioner. 3 MACA No.983-2011 The petitioner sustained serious injuries, including a fracture to the lower end of radius and a depressed fracture of his frontal bone. He was treated at the Taluk Hospital, Neyyattinkara and at the Medical College Hospital, Thiruvananthapuram. The first respondent was the owner cum rider of the scooter and the 2[nd] respondent was the insurer of the scooter. The petitioner claimed a compensation of Rs.2,10,000/- from the respondents, which was limited to Rs.2,00,000/-. 3. The 1[st] respondent died after seven days of the accident. His legal representatives were not brought on record. The 2[nd] respondent had filed a written statement, contending that the accident occurred due to the negligence of the petitioner. It was also contended that the legal representatives of the deceased 1[st] respondent had filed a private complaint before the Judicial First Class Magistrate Court, Neyyattinkara, and the matter was referred to the Police under Section 156(3) of the Code of Criminal Procedure for 4 MACA No.983-2011 investigation. The Crime Branch investigated the matter and found that it was the petitioner who was negligent in causing the accident. Accordingly, the petitioner was charged for an offence under Section 304(A) of Indian Penal Code. The petitioner had earlier filed O.P.(M.V.) No.1202/1999 before the same Tribunal under Section 166 of the Act, claiming compensation from the respondents. However, after the chargesheet was filed, the petitioner withdrew the original petition and, thereafter, filed the present claim petition. The claim petition is hit by suppression of material facts, therefore, the claim petition is to be dismissed. 4. The Tribunal had initially allowed the claim petition, by permitting the petitioner to recover an amount of Rs.55,700/- from the 2[nd] respondent. 5. Aggrieved by the award, the 2[nd] respondent filed MACA No.1755/2009 before this Court. This Court, by its judgment dated 08.10.2009, set aside the award and remitted the matter back to the Tribunal for fresh 5 MACA No.983-2011 consideration, particularly to look into the aspect whether the petitioner had sustained any permanent disability as per the Workmen Compensation Act, as contemplated under Section 163A of the Act. 6. Consequent to the remand, the 2[nd] respondent had filed an additional written statement contending that the head injury sustained by the petitioner was due to the fact that he did not wear a helmet. 7. The Tribunal had formulated additional issues. The appellant produced Exhibit A8 disability certificate before the Tribunal. 8. The Tribunal, after re-appreciating the pleadings and materials on record, again allowed the claim petition by permitting the petitioner to recover from the 2[rd] respondent an amount of Rs.55,700/- with interest. 9. Again confronted with the revised award, the 2[nd] respondent is again in appeal. 10. Heard; Smt. Deepa George, the learned 6 MACA No.983-2011 counsel appearing for the appellant/2nd respondent and Sri. Rajesh Kannan, the learned counsel appearing for the 1[st] respondent/petitioner. 11. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 12. The pivotal contention of the appellant before this Court is that, although the petitioner had produced Exhibit A8 Medical certificate he has not proved the document through the Doctor who issued the said certificate. Therefore, Exhibit A8 cannot be taken on its face value. 13. This Court, following the principles laid down in **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], by order dated 11.08.2021 referred the petitioner to the Medical Board of the Medical College Hospital, Thiruvananthapuram. 14. Pursuant to the above direction a Medical Board was constituted, and a disability certificate of a 7 ## MACA No.983-2011 three member Medical Board dated 27.09.2021 has been forwarded to this Court. The said certificate is accepted on record and marked as Exhibit ‘X1’. 15. As per the assessment in Exhibit X1, it is found that the petitioner has a functional disability/loss of earning capacity of 2.5% due to the deformity of his left wrist. It is specifically observed that, as the petitioner is a mechanic by profession, he would find it difficult to lift heavy weights. 16. On going through Exhibit ‘X1’, I find the assessment made by the Medical Board to be justifiable and reasonable, which I accept and confirm. 17. In view of the Second Schedule of the Act, prior to its amendment, the factors that need to be looked into for the purpose of determination of compensation is the permanent disablement of the injured, fixation of the multiplicant, to be multiplied by the relevant multiplier as on the date of determining the compensation. 8 MACA No.983-2011 18. In the instant case, the claim petition was initially determined on 29.11.2008 i.e. when the petitioner was aged 36 years. Therefore, as per the Second Schedule the relevant multiplier to be adopted is ‘16’. 19. The petitioner had claimed that he was a Mechanic by profession and earning a monthly income of Rs.3,000/-. However, the Tribunal fixed the notional monthly income of the petitioner at Rs.2500/-. 20. 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. 21. Following the yardstick in the afore-cited decision and considering that the accident happened in the year 1999, I fix the notional monthly income of the petitioner at Rs.3000/-. 9 MACA No.983-2011 22. Taking into account the above mentioned factors, namely, the notional monthly income of the petitioner at Rs.3000/-, his disability at 2.5% and the multiplier at ‘16’, the compensation for disability works out to Rs.14,400/- ## **Loss of earnings** 23. It is proved that the petitioner had sustained fracture of his lower end radius, fracture of his frontal bone and a maxillary fracture. He had to wear a POP cast and was treated as an inpatient for a period of 13 days. In the above factual situation, I hold that the petitioner was indisposed for a period of three months. Hence, I fix his ‘loss of earnings’ at Rs.9000/-. 24. As per clause (iv) of the Second Schedule, an amount of Rs.5000/- has to be paid towards grievous injury. Hence, I award the said amount. 25. On a comprehensive re-appreciation of the pleadings and materials on record, and taking into consideration Exhibit ‘X1’ disability certificate and the 10 MACA No.983-2011 structured formula under the Second Schedule, I hold that the petitioner is only entitled to an amount of Rs.28,300/-, instead of Rs.55,700/- awarded by the Tribunal. Thus, an amount of Rs.27,400/- has to be scaled down from the amount awarded by the Tribunal. In the result, the appeal is allowed in part. The compensation amount awarded by the Tribunal is scaled down by an amount of Rs.28,300/-. The appellant/2[nd] respondent is ordered to pay the 1[st] respondent/petitioner an amount of Rs.28,300/- with interest at the rate of 7.5% per annum from 24.01.2003 till the date of payment and a cost of Rs.5000/-, within sixty days from today. Immediately on the compensation amount being deposited before the Tribunal, the same shall be disbursed to the 1[st] respondent/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm18/11/2021 11 MACA No.983-2011 ## **APPENDIX** ## **PETITIONER ANNEXURE** **EXHIBIT X1 A REPORT OF THE MEDICAL BOARD DATED 18.10.2021 RESPONDENTS’ NIL** **RESPONDENTS’ ANNEXURE**