Varghese v. Saji Thomas and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` MONDAY, THE 27[TH] DAY OF MARCH 2023/6TH CHAITHRA, 1945 ``` ## **`MACA NO. 1454 OF 2012`** ``` AGAINST THE JUDGMENT IN OP(MV) NO.1235/2007 DATED 11/11/2011 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA APPELLANT/PETITIONER: ``` ``` VARGHESE S/O. ANTONY, KANNAMPUZHA HOUSE AMBAZHAKKAD DESOM VADAMA, VADAKKUMBHAGHAM VILLAGE ASHTAMICHIRA P. O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI. P.V.BABY SRI. A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SAJI THOMAS S/O. THOMAS, KALAPURAKKAL HOUSE, MALA P. O.`** - **`2 UNNIKRISHNAN S/O. VLASAN, KODUNGANATH HOUSE KATTIKKARAKUNNU P. O, VADAMA, VADAKUMBHAGOM.`** - **`3 ORIENTAL INSURANCE CO.LTD KODUNGALLUR.`** - **`4 BAIJU S/O. THANKAPPAN, VENNARAPARAMBIL HOUSE, ASTAMICHIRA.`** ## **`R2 - SMT.DEEPA GEORGE, SC`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1454 OF 2012 ``` ``` 2 ``` ## **C. JAYACHANDRAN, J.** ----------------------------------------- ## **M.A.C.A No.1454 of 2012** ----------------------------------------------Dated this the 27[th ] day of March, 2023 ## **JUDGMENT** The appellant in O.P.(M.V) No.1235 of 2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda is the claimant. The claimant who got injured in an accident which took place on 14.07.2007 is the appellant. He was riding a bicycle, whereupon he was hit by an autorickshaw driven by the 2[nd] respondent coming from the opposite side, sustaining serious injuries. He was initially taken to Mariya Theressa Hospital, Kuzhikattussery and thereafter to St.James Hospital, Chalakudy and from there to the Lakeshore Hospital, Ernakulam for better treatment. The appeal is essentially focused on claiming ``` MACA NO.1454 OF 2012 ``` ``` 3 ``` enhancement of the compensation amount granted by the Tribunal. 2. Heard Sri.P.V Baby, the learned counsel for the appellant and Smt.Deepa George, the learned counsel for the 3[rd] respondent Insurance Company. Perused the records. 3. Learned counsel for the claimant/appellant first invited the attention of this Court to Ext.A6 disability certificate issued by a private Doctor, certifying a disability of 9%. The same was not reckoned by the Tribunal for the reason that the Doctor who issued Ext.A6 was not examined. According to the learned counsel, the course adopted by the Tribunal is contrary to the dictum laid in **Manikantan G. v. K.Janardhanan Nair and Others** [2021 (5) KHC 305]. The second contention was that the Tribunal reckoned an income of Rs.2,500/- as against Rs.6,000/- claimed by the claimant/appellant. ``` MACA NO.1454 OF 2012 ``` ``` 4 ``` The learned counsel emphasised on the judgment of the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [2011 (13) SCC 236], to claim Rs.6,000/- towards monthly income for the year 2007. The third count is with respect to the ‘bystander expenses’ and ‘extra nourishment’. Under both heads, the Tribunal granted Rs.2,000/- only. Learned counsel pointed out that the claimant was hospitalised for a period of 13 days and it would be reasonable to reckon Rs.200/- per day under both the heads. The fourth count is with respect to the compensation under the head ‘pain and suffering’. The learned counsel invited the attention of this Court to the injuries sustained by the claimant to point out that Rs.15,000/- granted by the Tribunal is thoroughly insufficient. Another count is with respect to the loss of two teeth, for which the Tribunal has granted only Rs.3,000/-, which again ``` MACA NO.1454 OF 2012 ``` ``` 5 ``` according to the learned counsel is on the lower side. Under the head ‘loss of amenities’, the Tribunal granted only Rs.6,000/-. The injuries were again emphasised to seek enhancement. 4. Opposing the above contentions, learned counsel for the 3[rd] respondent Insurance Company pointed out that the 2[nd] respondent had no valid licence at the time of the accident and therefore, the Tribunal enabled recovery of the compensation from the 1[st] respondent, who is the owner of the offending vehicle. 5. Having heard the learned counsel appearing on both sides, this Court is inclined to grant enhancement to the claimant/appellant under various heads, except on the ground of discarding Ext.A6 disability certificate by the Tribunal. This Court notices that Ext.A6 certificate is issued by a private Doctor. Ext.A6 certificate would indicate that he is a consultant ``` MACA NO.1454 OF 2012 ``` ``` 6 ``` Ortho Surgeon in CCMK Hospital, Chalakudy. Ext.A6 was discarded for the reason that the author of the certificate was not examined. It is true that Ext.A6 recommends 9% permanent disability. This Court notices that in **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620], the Hon’ble Supreme Court questioned issuance of “ready to use” disability certificates by certain Doctors. The Hon’ble Supreme Court directed that the Tribunal has to ensure that the Doctor who issued the certificates would be required to give evidence as regards the disability and that mere production of a disability certificate will not be proof of the extent of disability, unless the author of the certificate is tendered for cross examination with reference to the certificate. The legal position being the same, this Court is not in a position to accept the contention of the appellant to take stock of Ext.A6 disability certificate. ``` MACA NO.1454 OF 2012 ``` ``` 7 ``` 6. This Court perfectly endorses the submission of the learned counsel for the appellant as regards the income based on **Ramachandrappa** (supra). The accident occurred in 2007 and the claimant/appellant who was an RCC worker can be deemed to have a notional income of Rs.6,000/- as indicated in **Ramachandrappa** (supra). It is so reckoned. 7. As regards bystander expenses and extra nourishment, again this Court is inclined to take Rs.200/- per day under both the heads, as against Rs.2,000/- granted by the Tribunal under each head. 8. This Court takes note of the severity of the injuries sustained by the claimant/appellant and also the fact that he was subjected to skin graft. It would only be reasonable to reckon the compensation under the head ‘pain and suffering’ to Rs.25,000/- as against Rs.15,000/- taken by the Tribunal. 9. As against loss of two teeth, this Court is ``` MACA NO.1454 OF 2012 ``` ``` 8 ``` inclined to reckon Rs.10,000/- as against Rs.3,000/reckoned by the Tribunal. 10. Under the head ‘loss of amenities’, it remains the fact that the claimant/appellant was an inpatient for a period of 13 days. Treatment expenses are to the extent of Rs.48,000/- in the year 2007. Having regard to the injuries sustained, this Court is of the opinion that the appellant is entitled to Rs.15,000/towards loss of amenities. 11. In the circumstances, this MACA is allowed and the compensation amount payable to the claimant/appellant is reworked as indicated in the tabular statement shown here below:- |**Sl.**<br>**No**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount**<br>**after**<br>**enhancement**<br>**in appeal**| |---|---|---|---| |1|Loss of earnings|12,500|*30,000| |2|Medical and<br>Miscellaneous|48,080|48,080| |3|Bystander expenses|2,000|2,600| |4|Transportation Expenses|5,000|5,000| ``` 9 ``` ## **`MACA NO.1454 OF 2012`** |5|Pain and suffering|15,000|25,000| |---|---|---|---| |6|Loss of teeth|3,000|10,000| |7|Extra nourishment|2,000|2,600| |8|Loss of clothes|500|500| |9|Loss of amenities and<br>conveniences etc.|6,000|15,000| ||Total|94,080|1,38,780| ||Amount enhanced = Rs.1,38,780 – Rs.94,080<br>=**Rs.44,700/-**<br>* Loss of earnings = 6,000 x 5=Rs.30,000/-||| 12. The direction of the Tribunal enabling the recovery from the owner of the vehicle will remain intact, inasmuch as, there is no challenge to the same before this Court. 13. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 7% from the date of petition. If any amount has already been paid, the same shall be granted set off. ``` MACA NO.1454 OF 2012 ``` ``` 10 ``` 14. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. Sd/- ## **C. JAYACHANDRAN JUDGE** SPR