V. A. Remanan v. T. O. Raju, P. Y. Mathai and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 10TH DAY OF OCTOBER 2013/18TH ASWINA, 1935** **MACA.No. 2120 of 2010 ( )** **-------------------------OPMV. 1472/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM. ........** ## **APPELLANT/PETITIONER:** **---------------------------------------** **V.A. REMANAN, SON OF ASOKAN, VYLOPPILLITHUNDIYIL HOUSE, AZAD ROAD, KALOOR. P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.ANIL S.RAJ, SMT.K.N.RAJANI, SMT.ANILA PETER, SRI.G.ARUN GOPAN.** ## **RESPONDENTS/RESPONDENTS:** **-------------------------------------------------** **1. T.O. RAJU, S/O.T.K. ONACHAN, THEVARMADOM HOUSE, VADAYAMPADY. P.O., ERNAKULAM DISTRICT, PIN.682 309.** **2. P.Y. MATHAI, S/O.ULAHANNAN, PULINCHUVATTIL HOUSE, KARIMUKAL ROAD, PANNIKKUZHI BHAGOM, PUTHENCRUZ. P.O., PUTHENCRUZ VILLAGE, PIN-682 308.** **3. NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ERNAKULAM, COCHIN-682 016.** ## **R3 BY ADV. SRI.C.P.UDAYABHANU, SC.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.2120 of 2010 -----------------------------------------------------------------Dated this the 10[th] day of October, 2013 J U D G M E N T ## K. Ramakrishnan, J The claimants in O.P.(M.V.). No.1472/2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle, owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent / insurance company. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the vehicle by its driver and awarded a total compensation of 6,24,900/- and round₹ of the same to 6,25,000/- on various heads as follows:₹ M.A.C.A. No.2120 of 2010 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of earnings|24000| |2|Transportation, extra nourishment,<br>attendant expenses and damage to<br>clothing|9200| |3|Medical expenses|240900| |4|Pain and suffering|35000| |5|Loss of amenities and enjoyment|35000| |6|For<br>continuing<br>permanent<br>disability & loss of earning power|280000| ||Total|624900<br>round of to<br>625000| Dissatisfied with the quantum of compensation awarded, the appellant has filed the above appeal before this court. 2. Heard the counsel for the appellant and counsel for the insurance company. 3. The counsel for the appellant submitted that the appellant was aged 34 years and a head load worker getting ₹6,000/per month at the time of accident. Though, the document has been produced and examined the co-worker and Secretary of the board to prove the income. The tribunal has not accepted the same but arbitrarily fixed to 4,000/- as his monthly₹ income, which is unsustainable in law. He was aged only M.A.C.A. No.2120 of 2010 3 34 years and the tribunal has taken the multiplier as 15. But as per the decision of **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the correct multiplier applicable to that age group is 16. Further, the amounts awarded under the head loss of amenities in life, pain and suffering etc., are also on the lower side. Though the medical bills for 2,76,192.35₹ were produced, the tribunal has arbitrarily reduced the same to 2,40,900/-, which is also not correct. In all, the₹ appellant is entitled to get enhancement on all heads. 4. On the other hand, counsel for the insurance company submitted that, the tribunal has considered all the aspects in the right perspective and awarded a just and reasonable compensation and no interference is called for at the hands of this court. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellant was that he was M.A.C.A. No.2120 of 2010 4 a head load worker getting 6,000/- per month at the₹ time of the accident. It is true that he had produced documentary evidence and also examined two witnesses to prove this fact. But the tribunal has appreciated the evidence and also come to the conclusion that being a head load worker, he will not be getting work for all days, and rightly fixed the monthly income as 4000/- per₹ month and during the year 2005, the amount fixed by the tribunal cannot be said to be on the lower side. So, we are not inclined to enhance the monthly income fixed by the tribunal, as it is just and proper. 7. As rightly pointed out by the counsel for the appellant, as per Sarla Verma’s case (supra), the correct multiplier applicable to the age group of the petitioner is 16 and not 15. The tribunal has taken 39% disability, assessed by the Medical Board for the purpose of assessing his earning capacity. So, if a re-calculation is made on that basis, the appellant will be entitled to get an amount of 2,99,520/- under the head loss of earning₹ M.A.C.A. No.2120 of 2010 5 capacity (4,000x12x16x39%) instead of ₹2,80,800/awarded by the tribunal and the appellant will be entitled to get an additional amount of 8,720/- under that head. ₹ 8. The petitioner had produced medical bills for ₹ 2,76,192.35. The tribunal observed that the vouchers amounting to 25,647/- are duplication and the₹ some were issued by a private druggist unsupported by medical prescription and arbitrarily fixed 2,40,900/- as₹ medical expenses. Merely because the bills were issued by a private druggist, it does not mean that, those medicines were not related to the claimant. The person who are attending the injured may be purchasing the medicines from private druggist as well and they may not expect to get the name of the doctor written in that bills at that time. So, deducting the duplication of 25,647/-,₹ the tribunal ought to have awarded the balance amount also towards medical expenses and we award an amount of ₹10,000/- more, over and above what has been awarded by the tribunal under the head medical M.A.C.A. No.2120 of 2010 6 expenses. 9. The petitioner suffered 35% neurological with ophthalmic disability and 6% orthopaedic disability and the total disability and the whole body disability was assessed as 39%. He was aged only 34 years at the time of the accident and he will have to be live with this difficulty for the remaining period of his life. This may affect his personal life to a greater extent. So considering these things, we feel that the amount of 35,000/-₹ awarded by the tribunal under the head loss of amenities and enjoyment in life, appears to be on the lower side. We enhance the same to ₹ 75,000/- from ₹35,000/awarded by the tribunal. We are not inclined to enhance any amount under other heads, as the amounts awarded by the tribunal under other heads are just and proper. In all, the appellant will be entitled to get an additional compensation of 68,720/-, over and above what has₹ been awarded by the tribunal, which the 3[rd] respondent insurance company is liable to pay with 9% interest from M.A.C.A. No.2120 of 2010 7 the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/S. Siri Jagan, Judge Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss