VELAYUDHAN v. THE NEW INDIA ASSURANCE CO. LTD.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** ## **MACA.No. 2005 of 2014** **AGAINST THE AWARD IN OPMV 1021/2008 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 11-05-2010** ## **APPELLANT/PETITIONER:** **VELAYUDHAN AGED 58 YEARS S/O. UNICHOYI, ORALAKOTTU HOUSE, KURIKKATHOOR P.O., POOVATTUPARAMBU, KOZHIKODE.** **BY ADVS. SRI.AVM.SALAHUDIN SMT.A.D.DIVYA** ## **RESPONDENT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD DIVISIONAL OFFICE, SILVER PLAZA BUILDINGS, I.G.ROAD, KOZHIKODE-673 001.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 2005 of 2014** 2 ## **JUDGMENT** This appeal is preferred by the petitioner against the award dated 11.05.2010 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode (for short 'the Tribunal) in O.P(MV) No.1021/2008 . 2. The appellant had met with an accident at 12.10 p.m. on 20.4.2006, when the scooter bearing registration No.KL-11/H-4552 in which he was travelling as pillion rider was hit by a motor cycle bearing registration No.KL-11/H-2228 at Peringalam Angadi. He had sustained serious injuries and was rushed to Baby Memorial Hospital, Kozhikode. The treatment was continued at Tirur Mission Hospital, Tirur. Alleging that the accident was occurred due to the rash and negligent riding of the motor cycle by its rider and claiming a compensation of Rs.5,00,000/-, the petitioner had preferred the aforesaid claim petition before the Tribunal. The driver, owner and insurer of the motor cycle bearing registration No.KL-11/H-2228 were arrayed as respondents 1 to 3 in the claim petition. 3. Before the Tribunal, the 3[rd] respondent alone contested the claim petition. Written statement and the additional written statement were filed by the 3[rd] respondent before the Tribunal wherein the issuance of policy in respect of the motor cycle bearing registration No.KL-11/H-2228 in favour of its owner was admitted. It **MACA.No. 2005 of 2014** 3 was contended that the accident was occurred solely due to the negligence of the rider of the scooter where the petitioner was pillion riding at the relevant time and not due to the negligence of the rider of the motor cycle. The injuries allegedly sustained by the petitioner and the quantum of compensation claimed were also disputed. 4. Before the Tribunal, the petitioner had adduced documentary evidence as Exts.A1 to A16 and Ext.C1. The contesting 3[rd] respondent failed to adduce any evidence. The Tribunal appreciated the entire evidence on record and found negligence on the part of the rider of the motor cycle and arrived at a sum of Rs.2,08,350/- as total compensation payable to the petitioner. Aggrieved by the quantum of compensation arrived at by the Tribunal as per the impugned award, the appeal was filed. 5. Sri.A.V.M.Salahuddeen, the learned counsel on behalf of the appellant has contended that the Tribunal failed to award just and reasonable compensation to the petitioner. According to him, petitioner had let in evidence to establish his claim satisfactorily, but the Tribunal failed to appreciate those in the correct perspective and accordingly adequate compensation was not awarded in favour of the petitioner. Accordingly he seeks for modification of the award by making necessary enhancement in **MACA.No. 2005 of 2014** 4 interference. Though notice was taken by the learned Standing Counsel for the 3[rd] respondent insurer, vakalath was not laid. 6. The contentions raised by the learned counsel for the appellant was critically analysed in the backdrop of the documentary evidence on record, to see whether the Tribunal went in error in arriving at the quantum of compensation. It is pertinent to note from the impugned award that the Tribunal has fixed the monthly income of the petitioner notionally as Rs.3,000/-. According to the learned counsel, the petitioner has raised a claim that he was getting a monthly income of Rs.25,000/- from his profession as a contractor of PWD. Having a glance at the documentary evidence on record, it is noticed that the petitioner failed to adduce any evidence before the Tribunal to establish his occupation and monthly income as claimed by him. In the said circumstances that the Tribunal was constrained to fix the monthly income notionally as Rs.3,000/-. The accident having been occurred in the year 2006, this Court finds that the monthly income fixed as Rs.3,000/- does not commensurate with the cost of living at the relevant time of accident. In view of the decision of the Apex Court in **Ramachandrappa v Royal Sundaram Alliance Insurance Co.Ltd. (AIR 2011 SC 2951)** this Court is perfectly justified in taking the monthly income above Rs.3,000/- and accordingly fix the same as Rs.6,000/-. The learned **MACA.No. 2005 of 2014** 5 counsel pointed out that the period considered to arrive at compensation for loss of earning is also on the lower side. According to the learned counsel, it is well established from the documentary evidence on record that the petitioner had availed treatment from various hospitals in different spells following the accident. According to the learned counsel, the Tribunal had overlooked all the evidence available on those counts while considering two months for calculating compensation for loss of earning. Contextually, it is relevant to have a look at the injuries sustained by the petitioner. Several medical documents have been marked in evidence from the side of the petitioner. Ext.A2 is the wound certificate prepared immediately after the accident and it is disclosed therefrom that the petitioner had sustained sub arachnoid hemorrhage and hemorrhagic contusions apart from multiple abrasions. Though a tenderness was noticed on his spine, in the investigation held, fracture was ruled out. Exts.A4, A5 and A11 are reports of CT Scan conducted at various points of time during the course of treatment and it is revealed from the report of CT Scan taken on 10.5.2017 that the sub-arachnoid hemorrhage was subsided considerably. Ext.A6, Ext.A8 and Ext.A10 are discharge summaries dated 02.06.2006, 23.09.2006 and 15.5.2007 respectively and those recite the various procedures of treatment to which the **MACA.No. 2005 of 2014** 6 petitioner was subjected to as part of treatment. It is discussed from the discharge card dated 02.06.2006, that the petitioner had underwent inpatient treatment primarily for four days and subsequently for a period of nine days strictly for the injuries sustained in the accident. But, it is made clear on a glance at the other two discharge summaries that the treatment was availed by the petitioner not for the injuries or related to the injuries sustained in the motor accident. It is stated in Ext.A6, the discharge card referring about the primary treatment undergone by the petitioner after the accident that he had history of diabetes mellitus. Therefore, it is clear that the petitioner was a known diabetic mellitus patient. For the reason, the treatment described in Exts.A8 and A10 cannot be taken into account for arriving at the compensation payable to the petitioners. The Tribunal has correctly discerned those aspects from the documents as dealt with above that the treatment undergone by the petitioners as per Ext.A8 and A10 were not connected to the injuries sustained by him in the motor accident. However, in view of the serious nature of the injuries sustained by the petitioner in the accident and the time taken to get it cured as evidenced from Ext.A6, this Court finds it justified to consider a period of three months to arrive at a reasonable compensation for loss of earning. When the re-fixed monthly income **MACA.No. 2005 of 2014** 7 of Rs.6,000/- is considered for three months, the compensation payable under the head loss of earning would be Rs.18,000/-. Since Rs.6,000/- has already been awarded by the Tribunal as per the impugned award, the quantum payable in addition is Rs.12,000/-. Under the heads by-stander expenses and extra nourishment, the Tribunal had awarded a sum of Rs.700/- and Rs.500/- respectively. The sums awarded as compensation under the above heads when viewed in the light of the evidence discussed above being inadequate, this Court is inclined to grant a sum of Rs.1,000/- and Rs.800/- respectively under the head by-stander expenses and extra nourishment. 7. A sum of Rs.750/- was found awarded by the Tribunal under the head transportation expenses. Though it is sought to be established by the petitioner that he had availed treatment from different hospitals, it has been derived that the treatment undergone was totally strange to the motor accident and related to other diseases. However, the treatment availed from Baby Memorial Hospital, Kozhikode and Tirur Mission Hospital, Tirur are found related to the injuries sustained by the petitioner in the motor accident. Therefore, the sum of Rs.750/- awarded by the Tribunal under the head transportation expenses appears to this Court inadequate and unreasonable and this Court is inclined to grant a **MACA.No. 2005 of 2014** 8 sum of Rs.750/- additionally under that head. The petitioner was examined by the Medical Board and Ext.C1 certificate was issued certifying his disability as 70%. But, it is relevant to notice on a glance at Ext.C1 that, the whole body disability was not arrived at by the Medical Board. Moreover, the assessment of disability by the Medical Board was also seen made on the basis of the ailments of the petitioner, not particularly related to the injuries sustained by him in the motor accident. It is in the aforesaid circumstances that the Tribunal had only taken 40% as the whole body disability of the petitioner. This Court do not find any reason for deviating thereform. However, in the calculation done with the monthly income modified by this Court as Rs.6,000/-, there would be enhancement in the quantum of compensation payable under the head disability. A sum of Rs.1,58,400/- is found payable to the petitioner as additional sum in the aforesaid calculation. Despite the evidence available to establish that the petitioner had sustained serious injuries and had undergone several procedures for evacuation of hemorrhage, the Tribunal had arrived at only Rs.12,000/- as compensation under the head pain and suffering. The sum so arrived at being inadequate, this Court is inclined to modify the same by enhancing it to Rs.25,000/-. Accordingly, there would be an enhancement of Rs.13,000/- under the head pain and suffering. **MACA.No. 2005 of 2014** 9 8. In the re-fixation as above, the petitioner is entitled to get an additional a sum of Rs.1,85,950/- (rounded off to Rs.1,86,000/-) (Rupees one lakh eighty six thousand only). The said amount would carry interest at the rate of 8% per annum from the date of the petition till the date of realisation. The 3[rd] respondent, insurer shall deposit the aforesaid sum with interest as directed above, within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed in part on the above terms. The parties to the appeal shall bear their respective costs. **Sd/-** **MARY JOSEPH** **JUDGE** ab