Mani.T.P vs Santhosh And Another
2021 Latest Caselaw 7365 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                      MACA.No.250 OF 2010(C)

AGAINST THE AWARD IN OPMV 188/2006 DATED 26-08-2009 OF MOTOR
          ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA


APPELLANT/S:

               MANI.T.P
               THATTANPARAMBIL HOUSE, KATHIKUDAM PO,, THRISSUR
               DISTRICT.

               BY ADV. SRI.SOJAN JAMES

RESPONDENT/S:

      1        SANTHOSH AND ANOTHER
               PULIKKAL HOUSE, CHETTARIKKAL DESOM,, KORATTY
               KIZHAKKUMURI VILLAGE,, THRISSUR DISTRICT.

      2        THE MANAGER
               ORIENTAL INSURANCE CO.LTD,, THRISSUR.

               R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN
               R2 BY ADV. SRI.P.V.JYOTHI PRASAD

OTHER PRESENT:

               SMT.K.S.SANTHI, SC

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 02-03-2021, THE COURT ON 03-03-2021 DELIVERED THE
FOLLOWING:
 MACA.No.250 OF 2010(C)                       2




                                  P.V.KUNHIKRISHNAN, J
                          -----------------------------------------------
                                 M.A.C.A. No.250 of 2010
                               --------------------------------------
                         Dated this the 3rd day of March, 2021


                                         JUDGMENT

The appellant is the petitioner/claimant in O.P.(M.V.) No.

188/2006 on the file of the Motor Accidents Claims Tribunal,

Irinjalakuda. The above claim petition is filed by the claimant claiming

compensation for the injury sustained in a motor accident.

2. The short facts are like this :

On 18.12.2005, while the appellant was walking along the side

of the road, he was hit down by a motor cycle bearing registration No.

KL-8/AE 5771. The rider cum owner of that motor cycle was the 1 st

respondent. The appellant sustained serious injuries and he claimed

compensation.

3. To substantiate the case, Exts.A1 to A6 were marked on the

side of the appellant and Ext.B1 was marked on the side of the

respondent. After going through the evidence and documents, the

Tribunal found that the appellant is entitled to realise compensation

of Rs.57,400/- from the respondents jointly and severally with interest

at the rate of 7% per annum from the date of petition till realisation.

Aggrieved by the quantum of compensation, this appeal is filed.

4. Heard counsel for the appellant and counsel for the 2 nd

respondent.

5. The counsel for the appellant submitted that the appellant

sustained disability and he produced Ext.A5, disability certificate. No

amount is granted for disability. The counsel submitted that for pain

and sufferings and loss of amenities also, the amount awarded by the

Tribunal is too low. The counsel for the 2 nd respondent submitted that

no evidence is adduced by the appellant to substantiate his claim and

therefore, this Court may not enhance the compensation.

6. I perused Ext.A5 disability certificate. The contents of the

same are extracted hereunder :

"This is to certify that Sri.Mani, 40/m, s/o Pankajakshan, Thattanparambil (H), P.O.Kathikudam, Koratty has been examined by me for assessment of permanent physical impariment on 30.7.09. The patient gives h/o road traffic accident on 18.12.05 following which he was initially treated at St.James Hospital, Chalakudy and subsequently at Westfort hospital, Thrissur with compound fracture both bones (R) leg, fracture patella (R) and soft tissue injury (L) popliteal fossa. He was treated by internal fixation operation and soft tissue repair along with other supportive measures (as per hospital records and other relevant documents).

On examination the patient has the following problems :

1. Extensive scarring and deformity (L) leg and popliteal fossa

2. Pain and stiffness (R) knee and ankle

3. Difficulty in climbing and squatting

4. Radiologically, united fracture (R) tibia with implant in situ

The orthopaedic disability has been calculated using NIOH scale as follows :

       (R) lower limb
       % for loss of range of movement                       =    8%
       % for loss of muscle strength                         =    6%
       % for loss of stability                               =    7%

Combining the values by Kessler's formula, total% of disability = 20.69%

Conclusion

Sri.Mani has got 21% (twenty one) of permanent physical impairment (whole body) with respect to the Orthopaedic disabilities."

7. It is true that no evidence is adduced to substantiate the

above disability certificate. But, this Court cannot ignore the realities.

In Pappu Deo Yadav v. Naresh Kumar and others [AIR 2020 SC

4424] after considering the earlier decisions, the Apex Court on the

point of 'permanent disability' has held that the inquiry that has to be

conducted by the Court is the resultant loss of income generating

capacity of the claimant. The principle to be followed by the court in

assessing motor vehicles compensation claims is to place the victim in

the same position as he was before the accident. The Bench referred

to the earlier decisions in Syed Sadiq and others v. Divisional

Manager, United India Insurance Company [2014 (2) SCC 735]

and Raj Kumar v. Ajay kumar and anr. [2011 (1) KLT 620 (SC)] and

held that the court should not adopt a stereotypical or myopic

approach, but instead, view the matter taking into account the

realities supplied, both in the assessment of extent of disabilities and

compensation under various heads. It was also held that the court

should award compensation on future prospects.

8. After considering the disability certificate, I am not in a

position to accept the same in toto. But considering the serious nature

of the injury, I think the permanent physical impairment can be

assessed as 10%.

9. The monthly income fixed by the Tribunal is Rs.2,000/-. The

accident was in the year 2005. Considering the dictum laid down by

the Apex Court in Ramachandrappa v. The Manager, Royal

Sundaram Alliance Insurance Company Limited [AIR 2011 SC

2951], the claim of the appellant that he was getting Rs.3,000/- per

month as monthly income can be readily accepted. Therefore, the

appellant is entitled compensation for disability in the following

manner :

3000 x 12 x 16 x 10/100 = Rs.57,600/-

10. The Tribunal awarded an amount of Rs. 12,000/- for pain

and sufferings. I think an additional amount of Rs.3,000/- also can be

granted in that head. Similarly, towards loss of amenities, Rs.5,000/-

is allowed by the Tribunal. I think the appellant is entitled another

amount of Rs.10,000/- on that head also. The appellant is also entitled

an additional amount of Rs.3,000/- towards loss of earning. Therefore,

the enhanced compensation, the appellant is entitled can be

summarised like this :

1 Compensation for disability Rs.57,600/-

        2     Pain and sufferings                  Rs.3,000/-
        3     Loss of amenities                    Rs.10,000/-
        4     Loss of earning                      Rs.3,000/-
              Total                                Rs.73,600/-


       11.    Therefore,   the    appellant   is   entitled     an   enhanced

compensation of Rs.73,600/-. The appellant is also entitled for interest

at the rate of 8% per annum for the enhanced amount.

Therefore, the appeal is allowed in part. The impugned award is

modified. The appellant is entitled an enhanced compensation of

Rs.73,600/- with interest at the rate of 8% per annum from the date of

application till realisation. The 2 nd respondent is liable to pay the

enhanced compensation.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SKS