Vinod s/o Viswanadhan Nair v United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939** **MACA.No. 2544 of 2012 () -------------------------** **AGAINST THE AWARD IN OP(MAC) 681/2011 of M.A.C.T. TIRUR DATED 04-09-2012** **APPELLANT(S)/PETITIONER:** **----------------------** **VINOD S/O. VISWANADHAN NAIR, AGED 33 YEARS, “POURNAMI”, KOLAMANGALAM, VALANCHERRY POST, MALAPPURAM DISTRICT-676522.** **BY ADVS.SRI.K.P.SUDHEER SMT.REMYA RAMACHANDRA KURUP** **RESPONDENT(S):/4TH RESPONDENT** **--------------** **THE UNITED INDIA INSURANCE CO.LTD. SUBKA BUILDING, THAZHEPALAM, TIRUR-676101, MALAPPURAM DISTRICT.** **BY ADV. SMT.P.A.REZIYA BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** jg-27/11 ## C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. .................................................................... MACA No.2544 of 2012 .................................................................... Dated this the 1[st] day of August, 2017. ## J U D G M E N T ## Ravikumar, J. The injured petitioner comes up in appeal on being aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Tirur. The Tribunal as per the award in OP(MAC) No.681/2011, which is filed by the petitioner seeking compensation for the injuries sustained under Section 166 of the Motor Vehicles Act, 1988, granted a total compensation of `2,15,635/- as against a claim of `6 lakhs, with interest at the rate of 9% per annum from the date of petition till the date of realization. 2. We have heard the learned counsel for the appellant/petitioner as also the learned counsel appearing for the respondent insurer, who is the fourth respondent in the claim petition. 3. In view of the absence of dispute regarding valid insurance coverage of the vehicle at the time of the accident, the fourth respondent in the claim petition was held liable to indemnify the insured owner of the offending vehicle. There is no dispute in this regard. Hence, the sole question to be considered is whether or not the appellant/petitioner is entitled to get enhanced compensation. MACA 2544/12 -2- The appellant/petitioner, who was riding his motorcycle, was knocked down by a lorry bearing Reg.No.KL-10/F-513, at the place of incident. On sustaining injuries, he was taken to Al-mas Hospital, Kottakkal and he remained there as an inpatient for a period of 20 days. The injuries resulted in permanent disability. Before the Tribunal, no oral evidence was adduced by both sides. In fact, the only evidence before the Tribunal was the documentary evidence on the side of the appellant/petitioner, which are Exts.A1 to A20 series and Ext.C1 court document, which is the disability certificate issued by the District Medical Board, Government General Hospital, Manjeri. As noticed hereinbefore, the Tribunal granted a total compensation of `2,15,635/-. The main grievance of the appellant/petitioner is that though he was aged only 32 years at the time of the accident, the Tribunal ignoring the averments regarding the occupation and income, fixed his monthly income on notional basis. That apart, it is contended that the notional fixation of monthly income as Rs.4,000/is also on the lower side. The other grievance of the appellant/petitioner is that though in Ext.C1, the extent of permanent disability is certified as 20% permanent locomotor disability and 1% dental disability, the Tribunal had not granted compensation for disability. It is the further contention that the Tribunal had granted only an amount of `2,000/- towards bystander expenses, which is too MACA 2544/12 -3- inadequate considering the period of hospitalization and that apart, no amount whatsoever was granted towards extra nourishment. 4. Per contra, the learned counsel appearing for the respondent submitted that the Tribunal had fixed the monthly income of the appellant/petitioner, notionally, as the appellant/petitioner had failed to adduce any cogent evidence regarding occupation and income. It is submitted that though the appellant/petitioner had produced Ext.A19 certificate regarding account information of Industrial Marketing and Financial Services Pvt. Ltd., Malappuram Branch, the same was not proved before the Tribunal. It is the further contention of the learned counsel appearing for the respondent that paragraph No.10 of the impugned award itself would reveal the reason for declining compensation for permanent disability. Shortly stated, according to the respondent, no appellate interference is called for. 5. We will firstly, consider the grievance of the appellant regarding denial of disability compensation. In Ext.C1 disability certificate itself, it was noted that the implants were in situ and tenderness was seen on the fracture site. True that when the implants were in situ with precision, the permanent disability could not be assessed. In such circumstances, it cannot be taken that the permanent disability was accurately assessed as 20%. It is also to be noted that the disability noted was locomotor disability. In this case, MACA 2544/12 -4- the appellant/petitioner was examined by a duly constituted Medical Board and they have issued Ext.C1 disability certificate certifying that the appellant/petitioner has 20% permanent locomotor disability and 1% dental disability. Ext.A12 is the wound certificate and Ext.A18 is the treatment certificate. They would go to show that the appellant/petitioner had sustained grade IIIB compound fracture both bones right forearm (segmental fracture radius) with IRUJ dislocation, closed fracture shaft of femur right, fracture scaphoid with transscapho periulnar dislocation with median nerve paresis, closed fracture first metacarpal base right, tongue laceration, lacerated wounds on scalp, lower rip and right knee and fracture of crown one upper tooth. Taking into account the nature of the injuries and also Ext.C1 disability certificate, we are of the view that the disinclination shown by the Tribunal to grant compensation for permanent disability, cannot be sustained even though there is substance in the finding that when the implants were in situ, the permanent disability could not have been assessed properly. True that the Tribunal has also held on perusal of Ext.A18 treatment certificate that there is nothing to suggest that the implants could not be removed. Taking into account all such circumstances, we are of the view that the fact that the appellant/petitioner had sustained injuries and that going by their nature, they were grave enough to cause permanent disability. Taking MACA 2544/12 -5- into account the nature of the injuries taken by the District Medical Board for the purpose of certifying 20% as the permanent disability and at the same time, taking note of the fact that the implants were in situ at that point of time, we are inclined to take only 10% as the disability, for calculation purpose. The Tribunal fixed the monthly income of the appellant/petitioner as `4,000/-. At the time of the accident, he was aged 32 years. True that he had failed to establish his averments regarding occupation and income. The accident had occurred on 31.03.2011. It is to be noted that even in the case of a coolie, who met with an accident in the year 2004, the Hon’ble Apex Court fixed the monthly income as `4,500/- (See the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]. Taking into account the age of the appellant/petitioner and the year of the accident and also the decision in Ramachandrappa **’** s case, we are inclined to take the monthly income of the appellant/petitioner as `8,000/-, for calculation purpose. The multiplier to be adopted with reference to the age of the appellant/petitioner is 16, going by the Schedule given in the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]. Taking into account such relevant factors, if the amount payable towards permanent disability is assessed, the appellant/petitioner is entitled to get an amount of MACA 2544/12 -6- `1,53,600/- (8000x12x16x10/100). 6. We will now proceed to consider whether the appellant/petitioner is entitled to get enhanced compensation under any other head. Taking into account the nature of the injuries sustained, evidently, the Tribunal took the period as three months and granted an amount of `12,000/- towards loss of earnings (total) and `6,000/- towards loss of earnings (partial). Retaining the said period fixed for granting compensation for loss of earnings (total) and granting proportionate enhancement under the said head, based on the refixed monthly income, the appellant/petitioner will be entitled to get an additional compensation of `12,000/-(8000x3-12,000). Towards bystander expenses, the Tribunal has granted only an amount of `2,000/-, evidently at the rate of `100/- per day. Taking into account the year of the accident, which is 2011, we are of the view that the said rate ought to have been `200/- per day. In that view of the matter, the appellant/petitioner is entitled to get `2,000/-, additionally, under that head. Towards extra nourishment, no amount was granted by the Tribunal. We are inclined to grant `2,000/-, at the rate of `100/- per day for 20 days towards extra nourishment. Towards damage to clothing, etc., only an amount of `250/- was granted as against a claim of `1,000/-. We are inclined to grant MACA 2544/12 -7- `750/- more under that head. In the light of the assessment/reassessment as above, the appellant/petitioner is entitled to get an additional compensation of `1,70,350/- (Rupees one lakh seventy thousand three hundred and fifty only). The said additional compensation will carry interest at the rate of 8% per annum from the date of the petition till the date of realisation. The respondent insurer is directed to deposit the said amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. This appeal is allowed as above. There will be no order as to costs. (C.T.RAVIKUMAR, JUDGE) (ANIL K.NARENDRAN, JUDGE) jg-4/8