Vimal Das v. N. Veeran & Ors. (MACA No. 2390 of 2009)

MACA NO. 2390 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943** ## **MACA NO. 2390 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 2638/2002 OF SPECIAL COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR APPELLANT/S:** VIMAL DAS,S/O.LAKSHMANAN, KADAMPIDI HOUSE, THONIKADAVU, PADOOR PO, ALATHUR, PALAKKAD HOUSE, THONIKADAVU, PADOOR P.O.,, ALATHUR, PALAKKAD. BY ADVS. SRI.DILIP J. AKKARA SRI.GOPALAKRISHNAN SRI.B.K.PURUSHOTHAMAN ## **RESPONDENT/S:** 1 N.VEERAN, NAMBITTAKULAM HOUSE, CHIRAMUNDASSERI, AMBALAPPARA,, OTTAPALAM. 2 ABDUL AZEEZ SO. MUHAMMED KABEER KALLEPADAM HOUSE, KALLEPADAM,, PAZHAYANNOOR, THRISSUR. 3 THE NEW INDIA ASSURANCE CO.LTD. IIND FLOOR, J.R.J. COMPLEX,, OTTAPALAM. BY ADVS. SRI.M.M.IRSHAD MOOPPAN SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2390 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2638/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 05.05.2002. It was his case that, on the above said date, while he was standing on the southern side of the Pazhayannur – Alathur public road, a motorcycle bearing registration No.KL9F 4861, driven by the 2[nd] respondent in a rash and negligent manner, hit the appellant. The appellant fell down on the road and sustained serious injuries including a fracture of the tibia and fracture of the fibula. He was treated as an inpatient at the West Fort Hospital, Thrissur for a period of 20 days. The appellant was a Mechanic and earning a monthly income of Rs.4,000/-. The motor cycle was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellant MACA NO. 2390 OF 2009 **==> picture [7 x 9] intentionally omitted <==** claimed a compensation of Rs.1,80,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings. 4. The 3[rd] respondent had filed a written statement admitting that the motor cycle had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. The 3[rd] respondent also disputed the age, income and occupation of the appellant. The 3[rd] respondent prayed that the claim petition be dismissed. 5. The appellant produced and marked Exts.A1 to A11(2) in evidence. The 3[rd] respondent produced the FIR which was marked as Ext.B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.84,100/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Dilip J. Akkara, the learned counsel appearing for the appellant and Sri.Irshad Moopan, the learned MACA NO. 2390 OF 2009 4 counsel appearing for the 3[rd] respondent. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A4 final report filed by the Alathur Police in Crime No.185/2002 proves that the accident occurred due to the negligence of the 2[nd] respondent. The respondents have not let in any evidence to discredit Ext.A4 final report. Admittedly, the 1[st] respondent was the owner and 3[rd] respondent was the owner of the motor cycle. The 3[rd] respondent had also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a Mechanic by profession and earning a monthly income of Rs.4,000/-. Nevertheless, the Tribunal, for want of materials, fixed the notional monthly income of the appellant at Rs.2,000/-. 12. In **Ramachandrappa vs. Manager, Royal** MACA NO. 2390 OF 2009 5 **Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2002, I fix the notional monthly income of the appellant at Rs.3500/- per month. ## **Loss due to disability** 14. Even though the appellant had produced Ext.A6 disability certificate, the Tribunal for the reason that the appellant had not proved Ext.A6 through the Doctor who issued the certificate, refused to grant the appellant compensation for 'loss due to disability'. 15. In **Raj Kumar vs. Ajay Kumar [** 2011 (1) KLT 620], the Honourable Supreme Court has categorically held that in the case of injury claim, if the Tribunal is not satisfied with the disability certificate produced before it, it is imperative for the Tribunal to refer the injured/claimant to a duly constituted Medical Board. Also, what needs to be looked into in a case of MACA NO. 2390 OF 2009 6 injury, is the functional disability of the injured. 16. In the instant case, the Tribunal accepted and marked Ext.A6 disability certificate without any demur or protest from the side of the respondents. After accepting and marking the said document in evidence, it was improper and wrong on the part of the Tribunal, to decline the assessment made in Ext.A6. If the Tribunal had any doubt in its mind, it was the bounden duty of the Tribunal to have referred the appellant to a duly constituted Medical Board. As Ext.A6 has been marked with the consent of the parties, I accept Ext.A6. 17. Although the Doctor has stated that the appellant has a permanent disability of 12%, following the ratio in **Raj Kumar vs. Ajay Kumar** , I find that the appellant has only 3% functional disability due to the mal-union, 2% due to wasting of muscles and 1% due to shortening, totaling to 6%. Therefore, I fix the functional disability of the appellant at 6%. ## **Loss due to disability** 18. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.3,500/-, his functional disability at 6% and adopting the MACA NO. 2390 OF 2009 7 Multiplier at '17' and in view of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802] , I award him an amount of Rs.42,840/- towards 'loss due to disability'. ## **Loss of earnings** 19. It is proved and accepted by the Tribunal that the appellant was indisposed for a period of four months. On a reconsideration of the materials on record, I accept and confirm the said finding. However, in view of the refixation of the notional monthly income of the appellant at Rs.3,500/-, I award him an amount of Rs.14,000/- towards ‘loss of earnings’. ## **Extra nourishment and Bystander expenses** 20. The appellant was treated as an inpatient for a period of 20 days. The Tribunal has awarded only an amount of Rs.1,000/- and Rs.2,000/- under the above heads, which is on the lower side. 21. Considering the fact that the accident occurred in the year 2002, I am of the firm view that the appellant is entitled to an amount of Rs.200/- per day for a period of 20 for both ‘extra nourishment and bystander expenses' which amounts to MACA NO. 2390 OF 2009 8 Rs.4,000/- each. ## **Pain and suffering** 22. The appellant had claimed an amount of Rs.20,000/towards pain and suffering. The Tribunal awarded only an amount of Rs.12,000/-. 23. Taking into account the fractures sustained by the appellant, that he was treated as an inpatient for a period of 20 days, that he was indisposed for a period of four months, I award him an amount of Rs.20,000/- towards 'pain and suffering' as claimed in the claim petition. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 25. On an over-all re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. MACA NO. 2390 OF 2009 9 **==> picture [449 x 504] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 8,000 14,000<br> 2. Transportation expenses 1,000 1,000<br>3. Clothing 500 500<br>4. Bystander expenses 2,000 4,000<br>Extra nourishment 1,000 4,000<br>5. Medical expenses 43,600 43,600<br>6. Pain and sufferings 12,000 20,000<br>7. Loss of amenities 8,000 8,000<br>Compensation for 8,000 8,000<br>discomfiture<br>8. Loss due to disability 0 42,840<br>Total 84,100 1,45,940<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.61,840/- with interest @ 7% as the enhanced compensation from the date of MACA NO. 2390 OF 2009 **==> picture [13 x 9] intentionally omitted <==** petition till the date of realisation and a cost of Rs.10,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/18.12.21