Vijayan s/o Thankappan v. The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938 MACA.No. 2886 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 507/2008 of ADDL.MACT, ALAPPUZHA DATED 26-11-2015 APPELLANT(S)/PETITIONER: ----------------------- VIJAYAN S/O. THANKAPPAN, VALIYAPUNNAICKAL, MARARIKULAM SOUTH, P/W VI. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S)/3RD RESPONDENT: ----------------------------- THE ORIENTAL INSURANCE COMPANY LTD. KOLLAM BRANCH- 691 001. BY ADV. SRI.P.V.JYOTHI PRASAD BY ADV. SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** ## **========================== M.A.C.A. No.2886 OF 2016 ==========================** Dated this the 21[st ] day of November, 2016 ## **JUDGMENT** _Jyothindranath, J._ This appeal is preferred by the claimant in O.P.(MV).No.507 of 2008 on the files of the Additional Motor Accidents Claims Tribunal1, Alappuzha. The challenge is against the quantum of compensation awarded by the Tribunal. 2.When this appeal came up for admission, the learned counsel for the appellant submitted before us that, here is a case where the appellant sustained very severe injuries in a motor vehicle accident occurred on 18.7.2008. It is further submitted that the claim petition moved by the appellant alleging negligence on the driver of the lorry **M.A.C.A.2886/2016** 2 involved in the accident was accepted by the Tribunal. It is the further submission that, in this case, the appellant sustained fracture of survical spine at C1 and C2 level. It resulted in a disability of 30% which was assessed by a medical board. But the Tribunal considered only 10% disability and assessed the compensation. It is also the submission that he was an autorickshaw driver by profession. The functional disability is actually hundred percent. The Tribunal considered only `3,500/- as the monthly income for calculating compensation. The Tribunal should have accepted the moderate claim of the appellant that he was having an income of `5,000/- per month, especially when there is positive evidence before the Tribunal that he was a driver by profession. Hence, an intervention by this Court is warranted. 3.We heard Sri.P.V.Jyothi Prasad, the learned counsel appearing for the insurance company. The learned counsel submitted that it is true that the medical board assessed the permanent disability as 30%. The Tribunal highlighted the fact that no reason is mentioned for **M.A.C.A.2886/2016** 3 coming to such a conclusion by the medical board. Moreover, it is to be remembered that the total claim of the appellant was `1,67,000/whereas the Tribunal granted a total compensation of `1,13,000/-. Thus, it can be seen that it is a just compensation. Under such circumstances, there is no merit in the appeal. 4.After hearing the learned counsel, we feel that this appeal can be disposed of, at the admission stage itself. There is no dispute regarding the liability of the company or any appeal filed by the company challenging the finding of the Tribunal on negligence aspect. We heard the counsel in detail. 5.In this case, it can be seen that the accident occurred while the appellant/claimant was driving an autorickshaw bearing Reg.No.KL4W/757. It can be further seen that the Tribunal found negligence on the side of the driver of the lorry and the claim was allowed. No appeal is preferred by the owner or driver of the lorry or by the insurance company. Under such circumstances, notice to other **M.A.C.A.2886/2016** 4 respondents is dispensed. 6.As already stated, the accident occurred on 18.7.2008. The claim of the appellant is that he is an autorickshaw driver by profession and was having an income of `5,000/- per month. Considering the period of the accident as well as considering the fact that the appellant was driving the autorickshaw at the time of the accident, we feel that it will only be just and proper to accept the contention of the appellant that he was having a monthly income of `5,000/- Thus, for calculation purpose, the monthly income of the appellant is considered as `5,000/-. 7.The next point argued before us is regarding the disability. In this case, the award itself reveals that there is survical spine fracture at C1 and C2 level and that resulted in the disability. When the disability is due to fracture of vertibra at C1 and C2 level, naturally, whatever may be the disability, it will be whole body disability except when it pertains to particular limb by neurological obstructions **M.A.C.A.2886/2016** 5 caused at the disability area. But still, when the medical board assessed the disability not highlighting the fact that it pertains to any particular limb, then it can only be treated as a disability pertaining to whole body. These reasons highlighted by the Tribunal that it is not highlighted in the medical certificate that it is either partial or whole body, cannot be a ground to take only 1/3 of the said assessment as 10%. But at the very same time, it can be seen that as highlighted in the award, there is no assertion to the effect that it is a whole body disability. Under such circumstances, we are not ready to accept the disability assessed by the medical board as such. But at the very same time, considering the fact that the disability sustained due to the fracture of survical spine at C1 and C2 level and further keeping in mind that the claim of the appellant is that he is an autorickshaw driver by profession, surely, there will be adverse effect of fracture injury at C1 and C2 level in his earning capacity. Under such circumstances, 20% disability is considered for assessment purpose. 8.It is also pointed out by the learned counsel for the appellant **M.A.C.A.2886/2016** 6 that in this case, the multiplier adopted by the Tribunal is not correct. The Tribunal adopted a multiplier of 15. It can be seen from the award that the age of the appellant is noted by the Tribunal as 32. If that is so, by following the dictum laid down by the decision in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the appropriate multiplier will be 16. Re-assessing the compensation by adopting the multiplier of 16 as well as 20% disability and further taking the monthly income of `5,000/-, the appellant will be entitled for an additional compensation of `1,29,000/- (5000x12x16x20/10063000) on the head of loss of income due to disability. The said amount awarded. As we have taken `5,000/- as the monthly income, he will be entitled for an additional compensation of `6,000/(5000x4-14000) on the head of loss of earning. On the head of loss of amenities, the Tribunal awarded only a sum of `8,000/-. It is on a lower side. Thus, an additional sum of `7,000/- is granted on the said head. Thus, the appellant will be entitled for an additional compensation of `1,42,000/-. It is awarded. The said amount will bear 8% interest from the date of the petition till realisation. The **M.A.C.A.2886/2016** 7 insurance company shall pay the amount within two months from the date of receipt of a copy of this judgment. The Tribunal shall realise the additional court fee payable on the amount awarded over and above the claim and the balance amount shall be released. The parties shall bear respective costs. The appeal is disposed of, at the admission stage as stated above. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.2886/2016** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.2886/2016** 9 **JUDGMENT September, 2010**