Vinston S/O Abisar Plavila Puthen Bungalow Marukil, Ooruttambalam, Thiruvananthapuram v. S. Babu; Beena Nivas; Director of Pooram Enterprises Pvt. Ltd.; D. Somarajan Nair; New India Assurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938 MACA.No. 2058 of 2009 ( ) -------------------------AGAINST THE AWARD IN OPMV 741/2003 of MACT, THIRUVANANTHAPURAM DATED 05-03-2009 APPELLANT(S):PETITIONER ------------------------------ VINSTON S/O.ABISAR PLAVILA PUTHEN BUNGALOW MARUKIL, OORUTTAMBALAM THIRUVANANTHAPURAM BY ADVS.SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S):RESPONDENTS IN O.P -------------------------------------------- ## 1.S. BABU BEENA NIVAS, EANCHAKKAL JUNCTION PERUMTHANNI, VALLAKADAVU THIRUVANANTHAPURAM & DIRECTOR OF POORAM ENTERPRISES PVT.LTD. PTC TOWERS, S.S.KOVIL ROAD, THAMPANOOR THIRUVANANTHAPURAM. 2.D.SOMARAJAN NAIR VALLIATHU MARAMON PATHANAMTHITTA 3.NEW INDIA ASSURANCE COMPANY LIMITED NEAR BUS STAND NEYYATTINKARA R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.2058 OF 2009 ==========================** Dated this the 31[st ] day of August, 2016 ## **JUDGMENT** _Ravikumar, J._ The claimant comes up in appeal feeling aggrieved by and dissatisfied with the judgment and award in O.P.(MV).No.741 of 2003 passed by the Motor Accidents Claims Tribunal, Thiruvananthapuram. He filed the said claim petition seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 10.10.2002. On that day, at about 2.15 p.m., the appellant was riding his motor cycle bearing Reg.No.KL-01/Q-692. When he reached near Swamiyarmadam, a lorry bearing Reg.No.KRT-3391 dashed against his motor cycle. Consequently, he sustained injuries. He had been an inpatient for a period of 82 days. The injuries sustained in the accident resulted in permanent disability. It is in the said **M.A.C.A.2058/2009** 2 circumstances that the above mentioned claim petition was filed seeking a total compensation of `10,00,000/-. 2.The Tribunal passed the impugned award after evaluating the documentary evidence consisting of Exts.A1 to A21 from the side of the appellant and after appreciating the rival contentions. It is to be noted that neither the petitioner nor the respondents adduced any oral evidence and from the side of the respondents, they had not adduced any documentary evidence as well. As per the impugned award, the Tribunal granted a total compensation of `5,12,641/- along with interest @ 7.5% per annum from the date of the petition till realisation. It is seeking enhancement of the said quantum of compensation that the captioned appeal has been preferred. 3.We have heard the learned counsel for the appellant and also the learned counsel for the third respondent. As per order dated 8.8.2016, issuance of notice to the first respondent was dispensed with **M.A.C.A.2058/2009** 3 and the appellant was also exempted from substituting the legal heirs of the deceased second respondent. 4.Evidently, there is no dispute regarding the accident, cause of the accident and negligence from the part of the driver of the lorry as also the insurance coverage of the offending vehicle. In such circumstances, we are called upon only to consider whether or not the appellant is entitled to get enhancement of compensation. 5.The learned counsel for the appellant submitted that the Tribunal has erred in fixing the monthly income of the appellant as `2,000/- disregarding the specific averments in the claim petition that the appellant was a Bill Collector attached to Asianet Franchise and was earning an amount of `3,500/- per month. He claimed that he was also functioning as a Keyboard Instructor. To establish the income and occupation from the aforesaid sources, the appellant has produced two certificates. Nonetheless, they were not proved through **M.A.C.A.2058/2009** 4 the persons who issued such certificates. Since the occupation and income were sought to be established only by producing such certificates issued by a private firm and a church and no one competent to prove the same were examined before the Tribunal, we are of the view that the Tribunal cannot be found fault with in not accepting the salary certificates and acting upon such documents. We are of the view that in such circumstances, the Tribunal was justified in fixing the monthly income of the appellant notionally for calculation purpose. Evidently, the Tribunal fixed the monthly as `2,000/-. Then, the question is whether the said fixation of `2,000/warrants modification. The accident occurred on 10.10.2002 and he was then aged 40 years. On taking note of the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** for guidance in the matter of fixation of monthly income notionally for calculation purpose, we are of the view that, it is only proper to take `3,500/- notionally as the monthly income of the appellant since the **M.A.C.A.2058/2009** 5 accident occurred two years prior to the accident involved in **Ramachandrappa** 's case. Evidently, in **Ramachandrappa** 's case, in respect of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income notionally at `4,500/-. In such circumstances, the monthly income of the appellant is fixed as `3,500/-, for calculation purpose. The Tribunal took the period of loss of earning as 10 months. Taking note of the nature of the injuries, we are of the view that the Tribunal is justified in taking ten months for the aforesaid purpose. In such circumstances, in view of the monthly income fixed by us, the appellant would be entitled to get `15,000/additionally towards loss of earning. It is granted. The Tribunal took the permanent disability of the appellant as 40%, for calculation purpose. It is evident from the impugned award that the Tribunal had opportunity to see the claimant and the Tribunal thereupon thought it fit only to take 40% as the permanent disability for calculation purpose. The Tribunal also assigned a plausible reason for taking the said percentage of permanent disability. The Tribunal found that the **M.A.C.A.2058/2009** 6 condition is more or less a case of total disfunctioning affecting the lower limbs even though it is not a case of amputation. The Tribunal observed thus:- “There is no reason why the disability percentage should be lessened any further, having regard to the fracture injuries sustained by the petitioner and rehabilitation process exercised by them.” In such circumstances, we are of the view that there is no reason to interfere with the assessment of permanent disability by the Tribunal. Evidently, with reference to the age of the appellant, multiplier was correctly taken as 15. In such circumstances, with the modified monthly income, the amount payable towards permanent disability has to be re-assessed. On such re-assessment, the appellant would be entitled to get an additional amount of `1,08,000/(3500x12x15x40/100-144000). Towards pain and suffering, the Tribunal granted an amount of `40,000/-. Ext.A6 wound certificate would reveal that he sustained lacerated and degloving injury to left leg-knee to ankle exposed fracture bone crushed muscles and soft **M.A.C.A.2058/2009** 7 tissue loss and extensive degloving of skin with loss (doubtful distal vascularity), fracture of left femur, intra capsular fracture neck of left femur, laceration with degloving right leg for knee to ankle with exposed fracture both bones leg crushed and exposed muscle and loss of soft tissue and skin (doubtful distal vascularity). Ext.A7 would reveal that he was treated with wound debridement and closed interlocking nailing under image control for leg, closed interlocking nailing under image control for left femur and for fracture neck of left femur, wound debridement and closed interlocking nailing under image control right tibia. Taking note of the nature of the injuries and the nature of the treatment underwent by him and his condition even thereafter as is discernible from the discussion in the award, we are of the view that the grant of compensation under 'pain and suffering' cannot be said to be adequate. As noticed hereinbefore, under the head 'pain and suffering', only `40,000/- was granted. Taking note of the aforesaid circumstances, we are of the view that an amount of `15,000/- can be granted additionally under that head and accordingly, **M.A.C.A.2058/2009** 8 it is granted. Towards extra nourishment, the Tribunal granted only an amount of `3,000/-. Towards bystanders expenses an amount of `8,000/- was granted. It is to be noted that the appellant had been an inpatient for a period of 82 days. Taking note of the fact that the accident and the consequential hospitalisation was of the year 2002, we are of the view that towards extra nourishment, the appellant ought to have been granted `100/- per day and towards bystanders expenses, the rate ought to have been `150 per day. In that view of the matter, we are inclined to grant `4,200/- additionally towards extra nourishment and `5,300/- towards bystanders expenses. The nature of the injuries would undoubtedly show that the dresses worn by him must have been damaged. The Tribunal granted only an amount of `250/-. We are inclined to grant `500/- more under that head. In the light of the enhancement made as above, the appellant is entitled to get a total additional compensation of `1,48,000/-. It is awarded. The additional compensation will carry interest @ 8% from the date of the petition till realisation. The third respondent is directed to deposit the **M.A.C.A.2058/2009** 9 enhanced amount along with interest thereon within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/-** **C.T. RAVIKUMAR** **(JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** //true copy// P.A.to Judge