Unnikrishnan @ Kannan S/o Ramankutty v. S Parimalagandhi, Kaliyaperumal, The Oriental Insurance Company Limited, S. Satheesh, Jaya Prakasam S/o Chamunni, United India Insurance Company Limited

**MACA NO. 987 OF 2012** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943** ## **MACA NO. 987 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 2437/2003 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** UNNIKRISHNAN @ KANNAN S/O.RAMANKUTTY, RESIDING AT THOPPIL HOUSE, KALVARI ROAD, POOTHOLE, THRISSUR. BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD SRI.P.S.APPU SRI.K.A.ANAS ## **RESPONDENTS/RESPONDENTS:** 1 S.PARIMALAGANDHI W/O.M.SUKUMARAN, RESIDING AT 11, 1ST FLOOR, S.S.S.BUILDING, I CROSS, 1ST MAIN ROAD, SAMRAI PET, BANGALORE. 2 KALIYAPERUMAL, S/O.SHANMUGHAN, RESIDING AT 4/36, EARIKARA STREET, SENT KUTHA PUTHUR THOPPU, POLAKARA NAGAPATTANAM, TAMILNADU. 3 THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE, 28, SALEM ROAD, COONOOR. 4 S.SATHEESH S/O.SIVARAMAN, RESIDING AT 18/25, NEAR KSRTC, SHORNUR ROAD, PALAKKAD-678001. **MACA NO. 987 OF 2012** **2** 5 JAYA PRAKASAN S/O.CHAMUNNI, RESIDING AT RAM PARAMBU HOUSE, MATHUR VILLAGE, ALATHUR, PALAKKAD-678541. 6 UNITED INDIA INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, SURYA COMPLEX, 2ND FLOOR, B-1 WING, PALAKKAD-678001. BY ADVS. SMT.B.V.ROSHINI KOCHI SRI.TITUS MANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 987 OF 2012** **3** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.2437/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. 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 that he sustained in an accident on 12.04.2003. It was his case that, on the abovesaid day, while he along with other workers were standing on the National Highway-47 for loading of goods from a lorry at Vazhukkumpara, a trailer lorry bearing Reg. No.KA-01-5333 (trailer lorry), driven by the 2[nd] respondent in a negligent manner, hit the parked lorry. In the impact, the appellant sustained serious injuries and was treated at the Thrissur Heart Hospital from 12.4.2003 to 22.4.2003. The appellant sustained a compound fracture **MACA NO. 987 OF 2012** **4** supracondylar femur right with neurological deficit. The trailer lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The parked lorry was owned by the 4[th] respondent, driven by the 5[th] respondent and insured with the 6[th] respondent. Hence, the appellant claimed a compensation of Rs.3,17,000/- from the respondents. 3. The other injured in the same accident also filed O.P No.3687/2003, 3688/2003 and 2117/2004 before the same Tribunal. 4. The respondents 1,2, 4 and 5 did not contest the proceedings and were set ex parte.. The respondents 3 and 6 filed separate written statements refuting the allegations in the claim petitions. 5. The Tribunal consolidated and jointly tried the claim petitions. 6. The petitioners in all the claim petitions produced and marked Exts.A1 to A21 in evidence. **MACA NO. 987 OF 2012** **5** 7. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petition, in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,40,000/- with interest and costs. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.T.C.Suresh Menon, the learned counsel appearing for the appellant/petitioner and Sri.Titus Mani Vettom, the learned counsel appearing for the 3rd respondent- insurer. 10. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 11. Ext.A2 final report filed by the Police substantiates that the accident occurred due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the **MACA NO. 987 OF 2012** **6** owner and the 3[rd] respondent was the insurer of the trailer lorry. The respondents have not let in any evidence to discredit the charge-sheet. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was an auto driver by profession and was earning a monthly income of Rs.4,000/-. Nevertheless, the Tribunal fixed the notional monthly income of the appellant at Rs.2,500/-. 13. 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. 14. Following the yardstick in the afroecited decision **MACA NO. 987 OF 2012** **7** and considering the fact that the accident occurred in the year 2003, I re-fix the notional monthly income of the appellant at Rs.4,000/-, as claimed in the claim petition. ## **Disability** 15. The appellant had produced Ext.A7 disability certificate issued by an Orthopaedic Specialist, who has certified that the appellant has a permanent disability of 22% to the right lower limb and 11.55% to the whole body. The Tribunal, for the reason that the appellant had not examined the Doctor, who issued Ext.A7 and the certificate was not issued by a Medical Board, fixed the permanent disability of the appellant at 5%. 16 In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has categorically 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 duly constituted Medical board. It is also held that, what needs to be **MACA NO. 987 OF 2012** **8** looked into in a case of injury, is the functional disability of the injured-claimant. 17. In the instant case, Ext.A7 disability certificate was marked in evidence without any objection or protest from the respondents. The Doctor, who issued Ext.A7 has categorically found that the appellant has a permanent disability of 22% to his right lower limb and 11.55% to the whole body as per MC Bride's Scale. It is certified that the appellant has waisting of the right quadriceps with extension lag, partial ankcyclosis to the right knee and minimal waisting of the right calf muscle. It is also observed that the appellant has difficulty in driving any sort of vehicle. 18. On a consideration of the fact that the appellant was a driver by profession and the assessment made in Ext.A7, I re-fix the functional disability of the appellant at 10%. **MACA NO. 987 OF 2012** **9** ## **Multiplier** 19. The appellant was aged 39 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 '15'. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.4,000/-, the functional disability at ‘10%’ and the multiplier at '15', I award the appellant an amount of Rs.72,000/- towards ‘loss due to disability’ instead of Rs.22,500/- awarded by the Tribunal. ## **Loss of earnings** 21. The Tribunal has found that the appellant was indisposed for a period of four months. I confirm the said finding. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.4,000/-, I award the **MACA NO. 987 OF 2012** **10** appellant an amount of Rs.16,000/- towards ‘loss of earnings’, instead of Rs.10,000/- awarded by the Tribunal. ## **- Bystander expenses and Extra nourishment** ## **expenses** 22. The Tribunal has awarded only an amount of Rs.1,650/- towards 'bystander expenses'. Taking note of the fact that the appellant was treated as an inpatient for a period of 11 days and that the accident occurred in the year 2003, I award the appellant an amount of Rs.200/- per day towards ‘bystander expenses’ and ‘extra nourishment’ which works out to Rs.2,200/- each under the aforesaid heads. ## **Loss of amenities** 23. The appellant had claimed an amount of Rs.25,000/- as compensation for ’ loss of amenities’. But, the Tribunal has awarded only an amount of Rs.8,000/under the said head, which is on the lower side. **MACA NO. 987 OF 2012** **11** 24. Taking into account the fact that the appellant was indisposed for a period of four months, that he was treated as an inpatient for a period of 11 days and that he has suffered a functional disability of 10%, I award a further amount of Rs.17,000/-, under the head 'loss of amenities' totalling to an amount of Rs.25,000/-. ## **Other heads of compensation** 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 aforecited decisions,, I am of the definite opinion 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. 987 OF 2012** **12** **==> picture [431 x 524] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 10,000 16,000<br>2. Transport to hospital 2,000 2,000<br>3. Damage to clothing -- --<br>4. Bystander expenses 1,650 2,200<br>--<br>5. Extra nourishment 2,200<br>6. Medical Expenses 80,664 80,664<br>7 Pain and suffering 15,000 15,000<br>8. Loss of amenities 8,000 25,000<br>9. Loss due to disability 22,500 72,000<br>Total 1,39,814 2,15,064<br>rounded off to =======<br>Rs.1,40,000<br>========<br>**----- End of picture text -----**<br> **MACA NO. 987 OF 2012** **13** In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.75,064/- with interest at the rate of 8% per annum from the date of petition till the date of deposit and a cost of Rs.10,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and costs 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 Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. Ma/05.01.2022 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**