Xavier K.R. and Jessy Felix v. Jayaram and United India Insurance Co. Ltd., MACA No. 1738 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY,THE 15[TH] DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943** **MACA NO. 1738 OF 2011** **AGAINST THE AWARD DATED 25.03.2011 IN OP(MV)NO.2069/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM.** ## **APPELLANT/CLAIMANT:** **XAVIER K.R., S/O.RAPHAEL, AGED 61, KANAKASSERY HOUSE, VALAPPE, OCHANTHURUTH P.O., ELANKUNNAPPUZHA REPRESENTED BY HIS SISTER AND POWER OF ATTORNEY JESSY FELIX, W/O.P.J.FELIX, PANDARAPARAMBIL HOUSE, PALLICHAL ROAD, THOPPUMPADY, KOCHI.** **ADDITIONAL APPELLANT IMPLEADED JESSY FELIX, W/O. P.J. FELIX, AGED 54, PANDARAPARAMBIL HOUSE, PALLICHAL ROAD, THOPPUMPADY, KOCHI IS IMPLEADED AS ADDITIONAL APPELLANT IN THE APPEAL AS PER ORDER DATED 1.9.2021 IN I.A.NO.2/2013(1421/13) IN MACA NO.1738/2011.** ## **BY ADV SRI.C.N.SAMEER** ## **RESPONDENTS/ RESPONDENTS 4 AND 5:** - **1 JAYARAM, S/O.BAHULEYAN, M/S.I.R.BAHULEYAN AND CO., MUNAMBAM, PALLIPORT P.O., ERNAKULAM DISTRICT.** **2 MS.UNIT ED INDIA INSURANCE CO.LTD., MUNICIPAL BUILDINGS, MAIN ROAD, N.PARAVOOR.** **BY ADVS.SRI.RAJAN P.KALIYATH SRI.A.D.RAVINDRA PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1738/2011 -:2:- _Dated this the 15[th] day of September, 2021_ ## **J U D G M E N T** The deceased-first appellant was the petitioner in O.P.(MV) No.2069/2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents 1 and 2 in the appeal were the respondents 4 and 5 before the Tribunal. During the pendency of the appeal, the original appellant passed away on 23.02.2013. His sister and dependant got herself impleaded as the additional second appellant in the appeal as per the order dated 01.09.2021 in I.A.No.2/2013(1421/2013). Hence, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 _(in short, Act')_ , claiming compensation on account of the that he sustained in an accident on injuries M.A.C.A.No.1738/2011 -:3:- 15.11.2005. It was his case that, while he was riding a three wheeler scooter(scooter), as he was a disabled person, through the Munambam-Vypin road, a tempo van bearing registration No.KL-7/AF-5597(van) hit against his scooter. The petitioner sustained serious injuries and was treated at the Medical Trust Hospital, Ernakulam, as an inpatient from the date of accident till 19.12.2005. The accident occurred due to the negligence of the driver of van. The fourth respondent was the owner and the fifth respondent was the insurer of the van. There was also a car bearing registration No.KL-7/AB 8486 also involved in the accident. The car belonged to the first respondent and was insured with the second respondent. The third respondent was the insurer of the scooter of the petitioner. The petitioner claimed that he was conducting a STD Booth(disabled person) and earning a monthly income of Rs.3,000/-. He claimed a total compensation of Rs.5,00,000/- from the respondents. M.A.C.A.No.1738/2011 -:4:- 3. The respondents 1 and 4 did not contest the proceeding and were set _ex parte_ . 4. The second respondent – insurer of the car – admitted the coverage of the car; but contended that the accident occurred due to the negligence of the driver of the van. Hence, the second respondent sought for exoneration of its liability. 5. The fifth respondent filed a written statement admitting that the car had a valid insurance coverage. Nevertheless, it was contended that the accident occurred on account of the negligence of the petitioner. Hence, the fifth respondent prayed that the claim petition be dismissed. 6. The petitioner produced and marked Exts.A1 to A26 in evidence. The respondents did not let it any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to realise from the M.A.C.A.No.1738/2011 -:5:- fifth respondent an amount of Rs.2,57,294/- with interest at the rate of 8% per annum from 06.03.2009 till the date of payment and proportionate costs. 8. Dissatisfied with the quantum of compensation, the petitioner filed the appeal through his next friend-the second appellant. 9. Heard; Sri. C.N. Sameer, the learned counsel for the appellants and Sri. Rajan P. Kaliyath, the learned counsel for the second respondent. ## **Negligence and liability:** 10. Ext.A2 chargesheet filed by the Njarakkal Police in Crime No.517/2005 proves that the accident occurred on account of the negligence of the driver of the van. Admittedly, the fourth respondent was the owner and the fifth respondent was the insurer of the van. Therefore, as the fifth respondent admitted the insurance policy and did not allege any violation of the policy conditions, the fifth respondent is to indemnify the liability of the fourth respondent arising out of the M.A.C.A.No.1738/2011 -:6:- accident. ## **Notional income:** 11. The petitioner had claimed that he was conducting a STD Booth as a BSNL franchisee and getting a monthly income of Rs.3,000/-. The Tribunal accepted the said version and fixed the notional income of the petitioner at Rs.3,000/-. 12. In the light of the law laid down _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], I find that the notional income fixed by the Tribunal to be correct and justifiable. ## **Loss due to disability:** 13. Admittedly, in column No.28 of the claim petition, the petitioner had averred that he was a disabled person, as he was afflicted with polio in his childhood. It was on the basis of his disability, he was awarded with STD/ISD pay phone as a BSNL M.A.C.A.No.1738/2011 -:7:- franchisee at Njarakkal. There is no medical evidence on record to prove the disability of the petitioner prior to the accident. 14. This Court by order dated 25.11.2011 in I.A.No.2959/2011, had referred the petitioner to the Medical Board attached to the General Hospital, Ernakulam, to assess the percentage of disability of the petitioner. 15. A three member Medical Board by disability certificate dated 13.12.2011 has assessed the disability of the petitioner at 90%. It is certified that the weakness affecting right side of the body of the petitioner is due to the cerebrovascular accident and the weakness developed on the left side of the body may be due to the head injury sequelae. 16. Now, what is the disability of the petitioner as a result of the accident that occurred in the year 2005, is not proved and established by the petitioner. 17. In Ext.A12 discharge certificate issued by the M.A.C.A.No.1738/2011 -:8:- Medical Trust Hospital, where the petitioner was admitted immediately after the accident on 15.11.2005 and discharged on 19.12.2005, it is stated that the petitioner underwent a right parietal depressed fracture fragment excision with evacuation of thin Epidural Haematoma [EDH]. At the time of the discharge, the petitioner was found to be fully conscious and with the operative scar clean and eve. 18. Subsequently, the petitioner suffered a cerebrovascular accident and was admitted at the Lourdes Hospital on 15.06.2010 and discharged on 23.06.2010. Thereafter, he was admitted at the Kristu Jayanti Hospital, Vypin on 10.08.2010 and discharged on 13.08.2010. 19. With the materials available on records, it can only be garnered that the petitioner, as a result of the accident on 15.11.2005, had only a right parietal depressed fracture fragment. This aspect is taken note by the Medical Board by its certificate dated M.A.C.A.No.1738/2011 -:9:- 13.12.2011, wherein it is said that the petitioner had a weakness on the left side, which may be due the head injury sequelae. As the Medical Board certificate was issued pursuant to the orders of this Court, the same is accepted on record and marked as Ext.X1. 20. In _**Raj Kumar v. Ajay Kumar**_ [2011(1)KLT 620(SC)] the Hon'ble Supreme Court has held that the disability of an injured can be assessed through a duly constituted Medical Board. But the relevant factor to be looked into is the functional disability of the injured in a claim for compensation under the Act. 21. Here is a tough case, where the petitioner was a polio affected person who was using a three wheeler scooter as evidenced by Exts.A4 and A5 driving licences and his own admissions in the claim petition. Subsequent to the accident in 2010, he also suffered a cerebrovascular accident. Therefore, the functional disability of the petitioner during the interregnum period as a result of the accident is what M.A.C.A.No.1738/2011 -:10:- has to be looked into by this Court in order to assess his functional disability. 22. Taking into account the material available on record, Ext.X1 disability certificate issued by the Medical Board and the fact that the petitioner was a polio affected person, I am of the considered opinion that the petitioner's functional disability can only be assessed and fixed at 20%, based on the observation made by the Medical Board that the weakness developed on the left side of the petitioner's body may be due to the head injury sequelae. 23. The above course is adopted or rather guess work is indulged, since the petitioner lost his life on 23.02.2013 and his functional disability cannot be assessed. In the above factual matrix, taking this as a peculiar case which has to be dealt with total compassion and sympathy, I fix the functional disability of the petitioner at 20%. M.A.C.A.No.1738/2011 -:11:- ## **Multiplier** 24. Even though in the wound certificate and Ext.A12 discharge certificate, the petitioner's age was recorded as 57 as on 15.11.2005, in the subsequent documents i.e., in the medical records in the Lourdes Hospital and Kristu Jayanti Hospital in the year 2010, he himself has given his age at 67 years. Thus, I fix the age of the petitioner at 62 years as on 15.11.2005 – the date of accident. 25. In view of the fixation of the age of the petitioner at 62, the relevant multiplier is '7', in view of the law laid down in _**Sarala Varma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)]. ## **Loss due to disability** 26. Taking into account the above-mentioned factors, namely; the notional income of the petitioner at Rs.3,000/- per month, his disability at 20% and the M.A.C.A.No.1738/2011 -:12:- multiplier at '7', I fix the compensation for 'loss due to disability' at Rs.50,400/-. ## **Loss of earnings:** 27. The petitioner had in the claim petition claimed 'loss of earnings' for the period from 15.11.2005 to 30.03.2006. In the light of fixation of the notional income of the petition at Rs.3,000/- and considering the serious injuries that he has sustained and finally surrendered his STD Booth as evidenced by Ext.A21 closure form, I fix his 'loss of earnings' at four months as claimed in the claim petition, which amounts to Rs.12,000/-, instead of Rs.9,000/- awarded by the Tribunal. ## **Future medical expenses:** 28. The petitioner had filed I.A.No.372/2016 to accept additional medical bills as Annexures A1 to A48 in the appeal. I find that 25 of the said bills were actually issued prior to the passing of the award. Therefore, it was the bounden duty of the petitioner to M.A.C.A.No.1738/2011 -:13:- produce the said bills before the Tribunal and got it marked in evidence which was not been done. 29. The application is vehemently opposed by the second respondent/insurer on the ground that the medical bills produced before this Court all relate to the cerebrovascular accident that the petitioner sustained in the year 2010, as evidenced by Exts.A13 and A14 discharge summaries. Therefore, the medical expenses are not incurred by the petitioner for treatment of the accident. 30. I find sufficient force in the contention of the second respondent and, therefore, I decline to accept the said documents on record, as there is no nexus between the bills and the accident that took place on 15.11.2005. Hence, I dismiss I.A.No.372/2016 and declined to accept the documents as additional evidence in the appeal. 31. With respect to the other heads of compensation, namely; 'transport expenses', 'damage M.A.C.A.No.1738/2011 -:14:- to clothing', 'extra nourishment', 'medical expenses', 'attendance charges', 'pain and sufferings', 'loss of amenities' and 'loss of earning power', I find that the Tribunal has awarded reasonable and just compensation as reflected in the table in paragraph No.12 of the impugned award. 32. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellants are entitled for enhancement of compensation by a further amount of Rs.53,400/- i.e., Rs.50,400/- towards compensation for loss due to disability and a further amount of Rs.3,000/- towards 'loss of earnings'. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.53,400/-** (Rupees fifty three thousand four hundred only) with interest on the enhanced compensation at the rate of 8% per annum from 06.03.2009 till the date M.A.C.A.No.1738/2011 -:15:- of deposit and a cost of Rs.4,000/-. The second respondent/insurer in the appeal is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount with interest and costs to the second appellant, in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge