Uthaman s/o Velayudhan v. Sampath Kumar M.P. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945** **MACA NO. 1101 OF 2013** **OPMV 2500/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **UTHAMAN S/O VELAYUDHAN, RESIDING AT PUTHAMPULLY HOUSE, MANATHALA P.O., CHAVAKKAD, THRISSUR DISTRICT.** **BY ADVS.** **SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** - **1 SAMPATH KUMAR M.P., PROPRIETOR, 39/1789, MADAKKAPILLY HOUSE, KOCHI-682 016.** - **2 RIKSM P.J., S/O JOY, RESIDING AT PUTHEMVEETTIL HOUSE, MOOTHAKUNNAM P.O., ERNAKULAM-683 516.** - **3 UNITED INDIA INSURANCE COMPANY LIMITED JOS RUST BUILDING, P.B.NO.3644, CHITTOOR ROAD, KOCHI-682035.** **BY ADV SRI.PMM.NAJEEB KHAN** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1101/2013 : 2 : ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2500/2005 on the files of the Motor Accident Claims Tribunal, Thrissur. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 04.10.2005. According to him, the accident occurred when he was travelling in a motorcycle bearing registration No.KL-08/R-1055, it was hit by a tempo van bearing registration No.KL-07/AN-7108 driven by the 2[nd] respondent. The 1[st] respondent was the owner of the tempo van and it was insured with the 3[rd] respondent. The appellant was a bus driver with a monthly income of Rs.6,000/- and he was aged 36 years at the time of the accident. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein they admitted the coverage of policy for the tempo van. However, they denied the negligence on the part of the 2[nd] respondent. The quantum of compensation was M.A.C.A. No.1101/2013 : 3 : also disputed by them. 4. The evidence in this case consists of Exts.A1 to A8 from the side of the appellant and no evidence was adduced by the respondents. 5. After the trial, the tribunal found that the accident occurred due to the negligence of the 2[nd] respondent in driving the tempo van and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.75,200/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 6. Heard Sri. Nimod A.R., the learned counsel appearing for the appellant and Sri. P.M.M. Najeeb Khan, the learned counsel appearing for the 3[rd] respondent. 7. The only question that arises for consideration is whether any enhancement of compensation is required or not. The learned counsel specifically highlights that the amount awarded under various heads, particularly under the head of M.A.C.A. No.1101/2013 : 4 : disability, was on the lower side. Even though the learned counsel for the 3[rd] respondent opposes the said contention, after perusing the records, I find force in the submissions made by the learned counsel for the appellant. It is to be noted that even though a monthly income of Rs.6,000/- was claimed by the appellant, which, according to him, he was earning from his avocation as a bus driver, the tribunal took the same as only Rs.3,500/-. Considering the fact that the accident occurred in the year 2005, the said amount appears to be on the lower side. It is to be noted that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] **,** the Hon'ble Supreme Court pleased to take the monthly income of an ordinary worker without any skill as Rs.4,500/- in respect of an accident occurred in the year 2004. Here, in this case, the appellant was claimed to be a heavy vehicle driver. Ext.A7 is the driving licence of the appellant which would establish that he was holding a valid driving licence for heavy vehicles. Therefore, I am of the view that, a slightly higher monthly income than usually taken in respect of an ordinary worker should be taken in this M.A.C.A. No.1101/2013 : 5 : case. Thus, the monthly income of Rs.6,000/- as claimed by the appellant appears to be reasonable, and it is accepted. 8. The next aspect relates to the percentage of disability. The appellant relied on Ext.A6 disability certificate issued by a Doctor wherein it was certified that he sustained 10% physical disability. However, the tribunal did not accept the same for the reason that the Doctor was not examined. The nature of injuries as is discernible from the records includes fracture left temporal bone, frontal bone, right orbit lateral wall, left maxillary bilated Ethnoid and sphenoid sinusitis, black eye right side, linear fracture right maxillary antrum with haeno-sinus, sub conjuctival haemorrhage, nimbus on upper teeth right side, nerve contusion, abrasion on right and left side 1st and 2[nd] toes, abrasion on right wrist, abrasion on both elbow. Thus, it is evident that he sustained serious head injuries and had undergone inpatient treatment for ten days as well. Evidently, it was in those circumstances that the percentage of disability was certified by the Doctor as 10%. In **Manikantan G. v. K. Janardhanan Nair & Others** [2021 (5) KHC 305], this Court considered the question as to the necessity of examination of the Doctor and it was held that, M.A.C.A. No.1101/2013 : 6 : merely because the Doctor was not examined, the tribunal cannot scale down the percentage of disability certified in the disability certificate unless there are serious discrepancies therein. On going through the nature of injuries as is discernible from the records, I do not find any reason to discard the percentage of disability certified in Ext.A6 certificate, and therefore, the same is accepted as such. Thus, while reassessing the compensation by taking the monthly income as Rs.6,000/- and the percentage of disability as 10%, the amount of compensation under this head would come to Rs.1,08,000/- (6000x12x15x10/100). The amount already awarded by the tribunal under this head is Rs.25,200/-; thus, the additional would come to Rs.82,800/-. 9. Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings. The tribunal awarded compensation under this head for a period of three months, which appears to be reasonable in the facts and circumstances of the case. Therefore, a further sum of Rs.7500/- is awarded towards loss of earnings. 10. The amounts awarded by the tribunal towards pain M.A.C.A. No.1101/2013 : 7 : and suffering as well as loss of amenities and inconvenience were Rs.14,000/- and 12,000/- respectively. Considering the nature of the injuries and the disability suffered by the appellant, the said amounts appear to be on the lower side. Considering the materials placed on record, I deem it appropriate to fix the compensation under the said heads as Rs.25,000/- each, thereby awarding an additional amount of Rs.11,000/- and 13,000/respectively. 11. No amounts are seen awarded towards extra nourishment and damages to clothing. Considering the year of the accident and other relevant circumstances, I deem it appropriate to grant Rs.1,000/- each under both these heads. Thus, additional compensation is determined as Rs.1,16,300/(82800+7500+ 11000+13000+1000+1000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 21.08.2012 passed by the Motor Accident Claims Tribunal, Thrissur in OP(MV) No.2500/2005 is hereby modified by granting an additional compensation of Rs.1,16,300/- (Rupees one lakh sixteen thousand three hundred only) and the said amount shall be M.A.C.A. No.1101/2013 : 8 : deposited by the 3[rd] respondent with interest at the rate as ordered by the tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. It is further ordered that the claimant shall furnish the details of the PAN card, Aadhar card and bank details to enable the 3[rd] respondent to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd