Venu v. Binoy K.T. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937** **MACA.No. 467 of 2007 ( ) ------------------------AGAINST THE AWARD IN OPMV 1454/1998 of M.A.C.T., PALAKKAD, DATED 30-08-2006.** **APPELLANT(S)/APPELLANT/PETITIONER: ----------------------------------** **VENU, S/O.,MADHAVAN, V/88, SASTHANAGAR, AKATHETHARA, PALAKKAD.** **BY ADV. SRI. C.M.MOHAMMED IQUABAL** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. BINOY.K.T., S/O.THOMAS, KOCHIAPLACHIAL HOUSE, ASAVIKAD, THRISSUR.** **2. K.K.AJAYAGOSH, S/O.KRISHNANKUTTY, KOOTTALA HOUSE, VADOOKKARA POST, KOORKANCHERRY, TRICHUR.** **3. THE ORIENTAL INSURANCE CO.LTD., P.O.BOX NO.158, 2ND FLOOR, T.D.BUILDING ROUND WEST, THRISSUR.** **4. NAZAR, S/O.HYDRU, THAYYIL HOUSE, POST PANG SOUTH, KOLATHUR, MALAPPURAM.(DELETED) (AS PER THE ORDER DATED 10.06.2015 IN I.A.NO.1862/15 IN MACA.NO.467/07 THE 4TH RESPONDENT IS DELETED FROM THE PARTY ARRAY)** **5. NATIONAL INSURANCE COMPANY LTD., P.B.NO.11, BRANCH OFFICE, MAVOOR ROAD, CALICUT - 673 004.** **R5 BY ADV. SMT.DEEPA GEORGE R3 BY ADV.K.S.SANTHI(NO MEMO)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- **M.A.C.A. No.467 of 2007** -------------------------------------------------------------Dated this the 15[th] day of February, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Claimant in O.P.(MV)No.1454 of 1998 on the file of the Motor Accidents Claims Tribunal, Palakkad is the appellant herein. The appellant filed a claim petition claiming compensation for the injuries sustained by him in a motor vehicle accident on 24.06.1998 at 10.00 p.m. He was travelling in the autorickshaw bearing registration No.KL10-C/7243 from Kottakkal to Puthanathani. When it reached Randathani, the lorry with No.KBE/3787 driven by first respondent, owned by the 2nd respondent and insured with the 3rd respondent came from the opposite direction and hit against the vehicle in which the petitioner was travelling. _**M.A.C.A. No.467 of 2007**_ 2 The accident occurred due to the negligent driving of the lorry driver/first respondent. The appellant sustained severe injuries. He was running an automobile workshop and getting 7,000/- per month. He suffered severe disabilities,₹ incapacitating from doing any work. So he claimed a total compensation of 1,80,000/-. Subsequently on the basis of₹ the contentions of the respondents, the owner cum driver and the insurance company of the auto rickshaw were also impleaded as additional respondents 4 and 5 in the court below. 2. Respondents 1 to 4 remained absent. 3. The 3rd respondent appeared and filed counter admitting the insurance of the lorry involved in the accident, but denied negligence on the part of the first respondent. According to them, the accident occurred due to the rash and negligent driving of the autorickshaw by its driver and the petition is bad for non jointer of necessary parties. They denied the nature of injury sustained, _**M.A.C.A. No.467 of 2007**_ 3 disability, income and occupation etc., of the petitioner. According to them the claim amount is excessive. They prayed for dismissal of the application. They also filed an additional written statement contending that the petition is not maintainable and the same petition was filed as O.P.1041/1999 before the Motor Accidents Claims Tribunal, Kozhikode for the injury sustained by him in the same accident. So there is duplication. In order to ascertain whether the above contention is correct, we also verified the records from the Motor Accidents Claims Tribunal, Kozhikode and found that O.P.(MV)No.1040/1999 did not relate to the present petitioner. 4. The petitioner was examined as PW1 and Exts.A1 to A7 and X1 were marked on their side. After considering the evidence on record, the court below found that the accident occurred due to the negligent driving of the lorry by its driver, namely the first respondent and awarded a total compensation of 35,960/- as follows:₹ _**M.A.C.A. No.467 of 2007**_ 4 |**_Sl.No._**|**_Head_**|**_Amount_**| |---|---|---| |1|Medical expenses|3210| |2|Loss of earnings|9000| |3|Pain and suffering|14000| |4|Loss of amenities in life|5000| |5|Damage to clothing|500| |6|Bystanders expenses|2400| |7|Transport to hospital|950| ||**Total**|**35060**| Dissatisfied with the quantum of compensation awarded, the claimant has filed this appeal. 5. Heard Sri.Mohammed Iquabal, counsel appearing for the appellant and Smt.K.S.Santhi, counsel appearing for the 3rd respondent insurer of the lorry and Smt.Deepa George, counsel appearing for the 5th respondent/insurer of the autorickshaw. 6. The counsel for the petitioner submitted that the petitioner is the owner of the workshop and he sustained 15% disability and no amount was awarded under the head loss of earning capacity. The income taken as _**M.A.C.A. No.467 of 2007**_ 5 ₹1500/- is very law. The court below also taken the period of treatment as 20 days instead of 52 days evidenced by the documents produced. So the amount awarded under the head bystanders expenses is very law. The total compensation awarded is also not proper. 7. On the other hand, the counsel for the 3rd respondent submitted that court below had reconsidered all the aspects in the right perspective and proper compensation has been awarded. 8. Heard the counsel for the 5th respondent also, who has no liability in this case. 9. It is an admitted fact that the petitioner sustained injuries in the motor vehicle accident involving a lorry and autorickshaw and the court below found that the accident occurred due to the negligent driving of the lorry by its driver and this factum has not been challenged. According to the petitioner, he was an automobile workshop owner and getting 7,000/- per month as income. Except₹ _**M.A.C.A. No.467 of 2007**_ 6 producing a photostat copy of the identity card issued from the Association of Automobile workshop owners, there is no other document produced by the petitioner to show that he is owning a workshop and getting the income as claimed. However, the court below had taken the monthly income as ₹1,500/- per month which appears to be on the lower side. Considering the fact that the accident occurred in the year 1998 and the injured was only 30 years at the time of accident. We feel that, his monthly income can be fixed as ₹3,000/- per month. After considering the nature of injury sustained, the court below had taken six months for assessing the compensation under head loss of earning during the period of treatment. If we take the income as ₹3,000 per month as refixed by us, he will be entitled to get ₹18,000/- instead of 9,000/- awarded by the court below₹ under the head loss of earning during the period of treatment and thereby he will be entitled to get 9,000/-₹ more under the head loss of earning during the period of _**M.A.C.A. No.467 of 2007**_ 7 treatment which we award under that head. The court below had taken 20 days as the period of treatment as inpatient, but Ext.A7 reference card shows that, he was admitted in the hospital on 25.06.1998 and discharged on 05.08.1998 and he sustained mandible fracture and depressed fracture of left condyle and tibia left. He was treated with internal fixation for his mandible fracture as well. Thereafter he was again admitted in District Hospital and treated as inpatient from 21.07.2005 to 29.07.2005. So he was treated as inpatient for nearly 52 days, taking that in account, he will be entitled to get an amount of 6,240/-, (52x120 i.e.₹ ₹120/- per day) instead of 2,400/- awarded by the tribunal,₹ thereby he will be entitled to get an additional amount of ₹3,840/- under that head. The case sheet shows that he lost two teeth and he had mandible fracture and internal fixation was done, apart from the fracture to his left leg. Ext.A8 disability certificate shows that he is having malunion of condyle left tibia with depression and there is restriction of _**M.A.C.A. No.467 of 2007**_ 8 movement of his leg and the disability was assessed as 15% permanent partial disability. Being a workshop owner, he may have to do work with his leg and the disability is likely to affect his earning capacity as well. So taking his monthly income as 3,000/- per month inclusive of taking the future₹ prospects as well and also taking 17 as multiplier, in view of the dictum laid down in the decision reported in _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121) and 10% occupational disability, he will be entitled to get an amount of 61,200/- (3,000x12x17x10%) under the head loss of₹ earning capacity and we award this amount under that head. The court below had not awarded any amount under that head, on the ground that the doctor who issued Ext.A6 disability certificate was not examined, which appears to be not a ground to deny compensation under the head. Considering the fact that he lost two teeth and suffered _**M.A.C.A. No.467 of 2007**_ 9 mandible fracture and treated with internal fixation and he had to be with 15% permanent partial disability for the remaining period of his life and considering the fact that he was aged only 30 years at the time of accident, we feel that some more amount he is entitled to get under the head loss of amenities in life. Since he had already awarded 61,200/-₹ under the head loss of earning capacity, that will have to taken into account while awarding compensation under the head loss of amenities in life. So we enhance the loss of amenities in life to 15,000/- from 5,000/- awarded by the₹ ₹ court below. Thereby he will be entitled to get an additional amount of 10,000/- under that head. Similarly considering₹ the nature of injury sustained, period of treatment undergone, and nature of treatment, we feel that the amount awarded under the head pain and suffering is very less and we enhance the same to 25,000/- from 14,000/-₹ ₹ awarded by the court below. Thereby he will be entitled to get an additional amount of 11,000/- under the head. In₹ _**M.A.C.A. No.467 of 2007**_ 10 all, he will be entitled to get an additional compensation of ₹95,040/- which we rounded off to 95,000, which the 3₹ rd respondent insurer of the lorry is liable to pay with interest at the rate of 9% per annum from the date of petition, till date of payment for the enhanced amount. Three months time is granted to the third respondent insurance company to deposit the amount. If the amount is deposited, petitioner is at liberty to withdraw the amount. With the above modification of the impugned award passed by the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ ## **P.N.RAVINDRAN (JUDGE)** ## _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** // True Copy// P.A. to Judge ss