V. Bodheswaran v. B. Kunjumon, RadhaKrishnan K.P., National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA,** ## **1943** **MACA NO. 1269 OF 2011** **AGAINST THE AWARD IN O.P(M.V) 1267/2005 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/PETITIONER:** V.BODHESWARAN, AGED 60 YEARS, S/O.VELU,THURUTHEL HOUSE,, MP WARD 2, MUHAMMA P.O.,ALAPPUZHA. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ## **RESPONDENTS/RESPONDENTS:** 1 B.KUNJUMON, S/O.BHARATHAN, KOYIKKASSERIL HOUSE, MUHAMMA P.O., ALAPPUZHA, PIN-688 524. 2 RADHAKRISHNAN K.P., KUZHIPPOTTU VEETTIL, CHARAMANGALAM, MP WARD 12, MUHAMMA P.O., ALAPUZHA, PIN-688 524. 3 NATIONAL INSURANCE CO. LTD., ALAPPUZHA BRANCH, REPRESENTED BY ITS MANAGER, PIN-688 001. BY ADVS. SRI.S.K.AJAY KUMAR, SC SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.1269 of 2011** 2 ## **JUDGMENT** The original petitioner in O.P.(M.V) No.1267/2005 on the file of Motor Accidents Claims Tribunal, Alappuzha is the appellant herein and he impugns award dated 28.10.2010 in the above case. The respondents in the Tribunal are the respondents herein also. 2. Heard both sides. 3. Brief facts of the case: **==> picture [380 x 13] intentionally omitted <==** appellant while riding his motor cycle through Alappuzha-Thannermukkom road from North to South and when he reached at north of Puthanangadi junction, an autorickshaw bearing registration no.KL-04/4608 driven by 2[nd] respondent in a rash and negligent manner came from the same direction, while overtaking the appellant's motorcycle, hit against the right side handle of the motorcycle and thereby the **M.A.C.A No.1269 of 2011** **==> picture [7 x 9] intentionally omitted <==** appellant sustained injuries. Appellant has claimed Rs.4,22,000/- as compensation. 4. The 1[st] and 2[nd] respondents were set ex- parte by the Tribunal. 5. The 3[rd] respondent filed written statement disputing negligence on the part of appellant and contended that there is violation of policy conditions. 6. The Tribunal adjudicated the matter after examining PW1 to PW3 and marking Exts.A1 and A22 on the part of the appellant. 7. The learned counsel for the appellant submitted that the appellant is aggrieved in the matter of fixing Rs.3,000/- per month as the monthly income for the purpose of granting disability income. She submitted further that no amount under the head 'loss of earnings' was granted, though Exts.A9 and A10 would go to show that he was hospitalised for 64 days on two occasions, consequent to injuries on cervical spine with quadriparesis. The learned ## **M.A.C.A No.1269 of 2011** 4 counsel argued further that no amount granted under the head 'loss of amenities' also. Though the learned counsel argued to increase the monthly income at Rs.6,000/- claimed by the appellant, she failed to convince the same. 8. The learned counsel for the Insurance Company urged that reasonable compensation under various heads, in fact, granted by the Tribunal and, therefore, no further increase required in this matter. 9. Here the appellant, who was aged 60 years at the time of accident, alleged to be doing coir business claimed Rs.6,500/- as his monthly income. Since no positive evidence forthcoming to substantiate this contention, following the ratio in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance**_ _**Company Ltd.**_ : **(2011) 13 SCC 236,** where the Apex Court fixed the income of a coolie at Rs.4,500/-, during the year 2004, Rs.5,000/- ## **M.A.C.A No.1269 of 2011** 5 fixed in this matter considering that the accident was of the year 2005. 7. 10. According to the learned counsel for the appellant though Dr.V.A.Bindhulal issued Ext.A15 disability certificate showing 25% disability to the appellant, the Tribunal fixed it at 15%. 11. According to the learned counsel for the Insurance Company, 25% whole body disability certified by PW3 cannot be justified since the same was not issued by a neurosurgeon or a Medical Board. **==> picture [380 x 13] intentionally omitted <==** certificate at par with the evidence of the PW3, I cannot find any illegality in the matter of fixing 15% disability by the Tribunal in this case and, therefore, I am not inclined to revisit the same. However, 'loss of disability income' required to be recalculated at the rate of Rs.5,000/- per month. Regarding the multiplier, the Tribunal taken '5' as the **M.A.C.A No.1269 of 2011** 6 multiplier. It appears that '5' is the multiplier applicable to the age group between 65-70 and the multiplier in the case of persons in the age group between 61-65, is '7'. In this particular case, no convincing evidence produced to prove the age of the appellant. The first document in relation to the treatment Ext.A9 would go to show that he was 61 years aged at the time of accident. Thus, the appellant to be placed in the age group between 61-65 and the multiplier would be '7' following the ratio in _**Sarla Verma v. Delhi Transport Corporation**_ **: (2009) 6 SCC 121.** Thus disability income is recalculated as under: 5000X12x7x15% = 63,000/- Out of which, Rs.27,000/- was granted by the Tribunal. Thus, **Rs.36,000/-** more is granted under the head 'loss of disability income'. 13. Going by the award, the Tribunal not granted any amount under the head 'loss of **M.A.C.A No.1269 of 2011** 7 earnings' and, therefore, learned counsel for the appellant is right in canvassing some amount under the head 'loss of earnings'. 14. As I already pointed out, 64 days of hospitalisation could be gathered in this matter and, therefore, 'loss of earnings' at the rate of Rs.5,000/- for a period of 5 months is to be granted. Therefore, I granted **Rs.25,000/-** under the said head. Coming to 'loss of amenities' also, no amount granted by the Tribunal and, therefore, the learned counsel for the appellant pressed for granting compensation under the head 'loss of amenities' also. Considering the injuries and treatment, I am inclined to grant **Rs.10,000/-** under the head 'loss of amenities'. 15. It is submitted by the learned counsel for the appellant that Rs.10,000/- granted under the head 'pain and sufferings' and the same is claimed to insufficient. Though the ## **M.A.C.A No.1269 of 2011** **==> picture [7 x 9] intentionally omitted <==** learned counsel for the Insurance Company opposed grant of more amount under this head, I am of the view that Rs.10,000/- granted under the head 'pain and sufferings' is on lower side, when perusing the injuries and the treatment thereof. Accordingly, **Rs.10,000/-** more is granted under the head 'pain and sufferings'. 16. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.1,67,845/- as compensation out of which Rs.86,845/- was granted by the Tribunal and the balance amount of **Rs.81,000/-** (Rupees Eighty One Thousand Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the Insurance Company from the date of petition till the date of deposit or realisation, excluding the period of 116 days in filing this appeal as ordered in the order dated 28.09.2021 ## **M.A.C.A No.1269 of 2011** **==> picture [7 x 9] intentionally omitted <==** in C.M.Appication No.1/2011. The Insurance Company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww