Varghese P.C. v. Shaju K.M & ICICI Lombard General Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 28TH DAY OF JULY 2017/6TH SRAVANA, 1939** **MACA.No. 892 of 2014 () ------------------------** **AGAINST THE AWARD IN OPMV 1000/2011 of M.A.C.T.,ERNAKULAM DATED 20-11-2013** **APPELLANT(S):/PETITIONER** **------------** **VARGHESE P.C, AGED 62 YEARS, S/O.CHACKO, ROSE HOUSE, VEZHAPARAMBU BHAGOM, MULANTHURUTHY P.O, MULANTHURUTHY VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.MATHEWS K.PHILIP SMT.T.MANASY** ## **RESPONDENT(S):/RESPONDENTS** **--------------** **1. SHAJU K.M** **S/O.MATHAI, KANJIRAMKUZHIYIL HOUSE, NEAR VETTIKAL ST.MARY'S CHURCH, THIRUVANIYOOR P.O, PUTHENCRUZ, ERNAKULAM DISTRICT-682 308.** **2. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, KANNANKERI ESTATE, SHANMUGHAM ROAD, ERNAKULAM – 682 031.** **R2 BY ADV. SRI.R.AJITHKUMAR VARMA (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** jg-2/9 ## C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. .................................................................... M.A.C.A.No 892 of 2014 .................................................................... Dated this the 28[th] day of July, 2017. ## J U D G M E N T ## Anil K.Narendran, J. This appeal arises out of an award passed by the Motor Accidents Claims Tribunal, Ernakulam dated 20.11.2013 in OP (MV) No.1000/2011, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident occurred on 19.03.2011 while he was standing on the side of a public road. At the place of the accident, he was knocked down by a motor car bearing Reg.No.KL-40/D-7320 owned and driven by the first respondent and insured with the second respondent. As a result of the accident, he sustained serious injuries. Alleging that the accident was occurred due to the rash and negligent driving of the car by the first respondent, claim petition was filed before the Tribunal claiming a total compensation of `5,00,000/- under different heads. 2. Before the Tribunal, Exts.A1 to A14 documents were marked on the side of the appellant/claimant. Ext.C1 is the MACA892/14 -2- certificate issued by the Standing Disability Assessment Board. Respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the car by the first respondent owner cum driver. Since the said vehicle was covered by a valid insurance policy, the second respondent insurer was held liable to indemnify the first respondent owner cum driver. Under different heads, the Tribunal awarded a total compensation of `3,53,660/- and directed the second respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of petition till realisation, with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We have heard the arguments of the learned counsel for the appellant/claimant and also the second respondent MACA892/14 -3- insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2011 and at the time of accident, the appellant/claimant was aged 60 years. He claimed a monthly income of `6,000/- as a person engaged in egg business. In order to substantiate the said claim, he relied on Ext.A13 series of cash bills issued by a merchant. However, no steps were taken to prove the said documents. In the absence of any reliable materials, the Tribunal took his monthly income, notionally, as `4,000/-, for the purpose of assessing compensation under different heads. 8. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the Apex Court notionally fixed the monthly income of a cooli, who met with a motor accident in the year 2004, as `4,500/-. In the instant case, the accident is of the year 2011 and at the time of MACA892/14 -4- the accident, the appellant/claimant was an able bodied person aged 60 years. Considering economic conditions prevailing as on the date of accident, in the light of the judgment of the Apex Court referred supra, we find no reason to disbelieve the claim of the appellant/claimant that, at the time of accident, he was earning a monthly income of `6,000/-. In such circumstances, we deem it appropriate to re-fix the monthly income of the appellant/claimant, notionally, as `6,000/-. 9. The injuries sustained by the appellant/claimant as borne out from Ext.A5 wound certificate, is “comminuted both bone fracture left leg.” As a result of the injuries sustained in the accident, he had undergone inpatient treatment for a total period of 47 days, which is discernible from medical records. In Ext.C1 disability certificate issued by the Standing Disability Assessment Board of Government Medical College Hospital, Kottayam, a permanently whole body disability of 12% has been assessed. The nature of injury noted in Ext.C1 disability certificate is “type III open comminuted both bone fracture of left leg distal”. The nature of disability noted is “restriction of terminal 10 degree MACA892/14 -5- plantar flexion and dorsiflexion”. 10. However, the Tribunal took the percentage of the disability as 6% for the purpose of assessing compensation under different heads. The reasoning for scaling down the percentage of disability, as stated in the impugned award reads thus:- “He was appeared before the Medical Board and Ext.C1 is the disability certificate issued from the Medical College Hospital, Kottayam, which shows that he has 12% disability of mild category. Therefore, he is entitled to get half of the amount assessed for 12% disability.” 11. When the percentage of whole body disability is assessed by a Medical Board and the certificate contains detailed description of the nature of disability, the Tribunal is not justified in scaling down the percentage of disability assessed by medical experts merely for the reason that as per the relevant guidelines, permanent disability less than 40% falls under 'mild' category. Therefore, we find no reason to sustain the scaling down of percentage of permanent disability assessed in Ext.C1 from 12% to 6%. In the result, the appellant/claimant is entitled to disability MACA892/14 -6- compensation, taking the percentage of disability as 12%, as certified in Ext.C1 disability certificate. ## 12. The compensation awarded by the Tribunal under different heads reads thus: |different heads reads thus:||| |---|---|---| |Heads|Amount<br>Claimed (In<br>Rs.)|Amount<br>awarded (In<br>Rs.)| |Loss of earnings|50,000/-|16,000/-| |<br>Partial loss of earnings|0|0| |<br>Transport to Hospital and back to<br>home|10,000/-|2,000/-| |Extra nourishment|10,000/-|0| |Damage to clothes and articles|1000/-|500/-| |<br>Attendant Expenses|10,000/-|7,000/-| |Medical Expenses|3,00,000/-|2,68,000/-| |Compensation for pain and sufferings|45,000/-|25,000/-| |Compensation for disfiguration|0|0| |<br>Compensation for continuing and<br>permanent/partial disability|1,50,000/-|20,160/-| |Compensation for future treatments|10,000/-|0| |Compensation for loss of earning<br>power|0|0| |Compensation for loss of expectation<br>of life/amenities and enjoyment in life|30,000/-|15,000/-| |<br>Compensation for short expectation in<br>life|0|0| |Total|6,16,000/-|3,53,660/-| |Claimed Rs.5,00,000/-||| 13. Towards the loss of earnings, the Tribunal awarded a sum of `16,000/-, at the rate of `4,000/- for a period of four months. Considering the nature of injuries sustained and the treatment the appellant had undergone, Tribunal rightly fixed four MACA892/14 -7- months for awarding loss of earnings, which requires no modification. However, since we have already re-fixed the monthly income of the appellant/claimant, notionally, as `6,000/-, the compensation under the head loss of earnings will be `24,000/- (6,000x4), resulting an additional compensation of `8,000/-. 14. Towards transportation to hospital, the Tribunal awarded a sum of `2,000/-. Though the appellant produced Ext.A12 series taxi bills for an amount of `10,042/-, the Tribunal found that he is entitled for only `2,000/- towards taxi bills dated 14.06.2011, 1.7.2011 and 8.7.2011. In paragraph 7 of the impugned award, the Tribunal has stated valid reasoning for not accepting the entire claim made by the appellant/claimant towards transportation expenses. We find no reason to interfere with the said reasoning of the Tribunal. In the result, the appellant/claimant will not be entitled for any further amount under this head. 15. Towards medical expenses, the Tribunal awarded a sum of `2,68,000/-. Though the appellant/claimant produced MACA892/14 -8- Ext.A11 series of medical bills for a total sum of `2,72,540.23, on verification of the said bills, the Tribunal found that serial Nos.1 and 3 related to some other person and serial Nos.44, 45 and 47 were already refunded. It was under such circumstances that the Tribunal limited the compensation towards medical expenses to `2,68,000/-. The reasoning of the Tribunal in this head also warrants no interference. 16. Towards the compensation for pain and sufferings, the Tribunal awarded a sum of `25,000/-. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, the compensation awarded under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. 17. Towards extra nourishment, no amount was awarded by the Tribunal. Under the head attendant expenses, the Tribunal awarded a sum of `7,000/-. Since the accident is of the year 2011, the appellant/ claimant is entitled for compensation under the head extra nourishment at the rate of `150/- per day and that under the head attendant expenses at the rate of `250/- per day. MACA892/14 -9- Since the appellant/claimant had inpatient treatment for a period of 47 days, which fact is not in dispute, he is entitled for a sum of `7,050/- (150x47) towards extra nourishment. The compensation under the head attendant expenses has to be re-fixed at `11,750/- (250x47), resulting an additional compensation of `4,750/-. 18. Towards the compensation for permanent disability, the Tribunal awarded a sum of `20,160/-, taking the monthly income as `4,000/- applying multiplier of 7 and the percentage of disability at 6%. Since we have already re-fixed the monthly income of the appellant/claimant as `6,000/- and the percentage of disability as 12%, the compensation under this head is reworked at `60,480/- (6000x12x7x12/100), resulting an additional compensation of `40,320/-. 19. Towards the compensation for loss of amenities, the Tribunal awarded a sum of `15,000/-, which represents just and reasonable compensation under that head, considering the nature of disability, as borne out from Ext.C1 disability certificate. 20. In the result, the appellant/claimant is entitled for an MACA892/14 -10- additional compensation of `60,120/- (Rupees sixty thousand one hundred and twenty only) (8,000+7,050+4,750+40,320). The said amount will carry interest at the rate of 8% per annum from the date of petition till the date of realisation. Since the insurance coverage of the offending vehicle is not in dispute, the second respondent insurer shall deposit the said amount before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. (C.T.RAVIKUMAR, JUDGE) (ANIL K.NARENDRAN, JUDGE) jg-28/7