Kerala High Court
Mohanan Nair vs Vijayan on 25 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
MACA NO. 810 OF 2011
AGAINST THE AWARD DATED 27.11.2010 IN OPMV 874/2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/PETITIONER:
MOHANAN NAIR,
S/O. KUTTAI,
VADAKKEKOYIPARATH HOUSE,
VALLAMCHIRA BHAGOM,PAYIPPADU,
CHANGANASSERY-690556
BY ADVS.SRI.PHILIP T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SRI.THOMAS T.VARGHESE
RESPONDENTS/RESPONDENTS:
1 VIJAYAN,
ANJILITHANAM BHAGOM,
KUNNANTHANAM,
THIRUVALLA-689581
2 K.N.SREEDHARAN,
SUMA NIVAS
ANJILITHANAM,
THIRUVALLA-689582
3 THE UNITED INDIA INSURANCE CO.LTD,
KOTTAYAM-686001
BY ADVS.SRI.V.JAYAPRADEEP
SRI.RENIL ANTO KANDAMKULATHY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.No.810/2011
-:2:-
Dated this the 25th day of November, 2021
JUDGMENT
The appellant was the petitioner in O.P
(MV)No.874/2007 on the file of the Motor Accidents
Claims Tribunal, Kottayam. The respondents in the
appeal were 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 26.01.2007. It was his
case that, on the above said day, while he was walking
along the Kaviyoor-Paippadu road, a car bearing
registration No.KL-3-D/1445(car), driven by the first
respondent in a rash and negligent manner, hit the
appellant. The appellant was taken to the Medical
Mission Hospital, Thiruvalla, where he was given first
aid. Thereafter, he was shifted to the Medical College
Hospital, Kottayam, and treated as an inpatient for a
M.A.C.A.No.810/2011
period of 10 days. He had severe bleeding and also
had sustained a Type II bimalleolar fracture and his
left hand to be put in a cast for a period of six weeks.
Thereafter, he was treated as an inpatient for five
days. The appellant was a mason by profession and
was earning a monthly income of Rs.5,000/-. The car
was owned by the second respondent and insured with
the third respondent. Hence, the appellant claimed a
total compensation of Rs.1,85,000/- from the
respondents, but the claim was limited to Rs.1,00,000/-
3. The respondent Nos.1 and 2 did not contest
the proceedings and were set ex parte.
4. The third respondent had filed a written
statement contending that the accident occurred due
to the negligence of the appellant. It was also stated
that the first respondent did not hold a valid driving
licence. Therefore, there was violation of policy
conditions. The third respondent also disputed the age,
M.A.C.A.No.810/2011
income and occupation of the appellant. Hence, the
third respondent prayed that the claim petition be
dismissed.
5. The appellant produced and marked Exts. A1
to A9 in evidence. The respondents did not let it any
evidence.
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
third respondent an amount of Rs.42,926/- with
interest at the rate of 7.5% per annum from the date of
petition till the date of deposit and a cost of Rs.1,000/-
7. Dissatisfied with the quantum of
compensation awarded by the Tribunal, the petitioner
is in appeal.
8. Heard; Sri. Philip T. Varghese, the learned
counsel appearing for the appellant/petitioner and Sri.
V. Jayapradeep, the learned counsel appearing for the
M.A.C.A.No.810/2011
third respondent -insurer.
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.A2 chargesheet filed by the
Thrikkodithanam Police in Crime No.34/2007,
establishes that the accident happened due to
negligence of the first respondent. The second
respondent was the owner and the third respondent
was the insurer of the car. The respondents have not
let in any evidence to the contrary to discredit Ext.A2
chargesheet. Similarly, the third respondent has not
proved that the second respondent has violated the
insurance policy conditions. Therefore, the third
respondent is to indemnify the liability of the second
respondent arising out of the accident.
M.A.C.A.No.810/2011
Income:
11. The appellant had claimed that he was a
mason by profession and earning a monthly income of
Rs.5,000/-. However, the Tribunal, for the want of
materials, has fixed the notional monthly income of the
appellant at Rs.3,250/-.
12. The Hon'ble Supreme Court in Chameli
Devi and Ors. v. Jivrail Mian & Ors. [2019 KHC
5352] has fixed the notional income of a carpenter in
the year 2001, at Rs.5,000/- per month.
13. Similarly, in Chandra @ Chandra @
Chandraram and Anr. v. Mukesh Kumar Yadav
and Ors [LL 2021 SC 531], the Hon'ble Supreme
Court has fixed the notional income of a driver in the
year 2004, at Rs.6,000/- per month.
14. Following the yardstick in the afore-cited
decisions and considering the fact that the appellant
was a mason by profession and that the accident
M.A.C.A.No.810/2011
occurred in the year 2007, I have no hesitation to fix
the monthly notional income of the appellant at
Rs.5,000/-, as claimed in the claim petition.
Disability:
15. The appellant had produced Ext.A6 disability
certificate to prove that he has a permanent disability
of 15%, as per the Mc Bride Scale. It is certified in
Ext.A6 that, the appellant had sustained a Type II open
bimalleolar fracture of his ankle. However, the
Tribunal for the reason that the appellant had not
examined the doctor who issued Ext.A6, refused to
accept Ext.A6 and declined award of compensation for
'loss due to disability'.
16. In Rajkumar v. Ajayakumar [2011(1) KLT
620(SC)], the Honourable Supreme Court has
categorically held that, in the case of injury cases,
what needs to be looked into is the functional disability
of the injured/claimant. If the Tribunal is not satisfied
M.A.C.A.No.810/2011
with the disability certificate produced before it, it is
the bounden duty of the Tribunal to refer the
injured/claimant to a duly constituted Medical Board.
17. In the instant case, although Ext.A6 disability
certificate was accepted on record, without demur or
protest from the respondents, the Tribunal just
discarded Ext.A6 on the ground that it was not proved
by the appellant. The said course is erroneous and
wrong because the Tribunal ought to have granted the
appellant an opportunity to examine the doctor who
issued Ext.A6, or referred the appellant to a duly
constituted medical board. Therefore, I am inclined to
accept Ext.A6 to fix the functional disability of the
appellant as laid down in Rajkumar (supra).
18. On going through Ext.A6, it is seen that the
appellant has a wasting of his left leg muscles and left
leg ankle is swollen. Similarly, his left leg movements
are restricted to 90o to 110o range and there is valgus
M.A.C.A.No.810/2011
deformity of his left ankle of 10%.
19. Taking note of the assessment made by the
Doctor in Ext.A6 and considering the fact that the
appellant was a mason by profession, I fix his
functional disability at 10%.
Multiplier:
20. The appellant was aged 48 years at the time
of accident. Going by the law laid down in Sarla
Verma and others v. Delhi Transport Corporation
and others [(2010) 2 KLT 802 (SC)],the relevant
multiplier to be adopted is '18'.
Loss due to disability:
21. Taking into account the above mentioned
factors, namely; the notional monthly income of the
petitioner at Rs.5,000/-, his 'functional disability' at
10% and the 'multiplier' at '13', I award the appellant
an amount of Rs.78,000 towards 'loss due to
disability'.
M.A.C.A.No.810/2011
Loss of earnings:
22. It is proved by Exts.A3 and A5 discharge
cards, that the appellant was treated as an inpatient
for a period of 15 days. I have already fixed the
functional disability of the appellant at 10%. The
appellant being a mason by profession, I hold that he
was indisposed for a period of four months.
23. In view of the re-fixation of notional monthly
income of the appellant at Rs.5,000/-, I award him an
amount of Rs.20,000/- towards 'loss of earnings'.
Bystander expenses:
24. The appellant was treated as an inpatient for
a period of 15 days. The Tribunal has awarded only an
amount of Rs.1,500/- towards 'bystander expenses' ,
which is too meager. Hence, I award him an amount of
Rs.200/- per day for a period of 15 days, which
amounts to Rs.3,000/-.
M.A.C.A.No.810/2011
Loss of amenities
25. The appellant had claimed an amount of
Rs.20,000/- towards 'loss of amenities'. The Tribunal
has awarded only an amount of Rs.10,000/- under the
said head, which is on the lower side.
26. Taking into account the serious injuries
sustained by the appellant, that he was treated as an
inpatient for a period of 15 days, that he was
indisposed for a period of four months and that he has
suffered a functional disability of 10%, I award him a
further amount of Rs.10,000/- under the head 'loss of
amenities' i.e., a total amount of Rs.20,000/- as
claimed in the claim petition.
27. With respect to the other heads of
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
28. On a comprehensive re-appreciation of the
pleadings, materials on record and the law referred to
M.A.C.A.No.810/2011
in the afore-cited decisions, I hold that the
appellant/petitioner is entitled for enhancement of
compensation as modified and re-calculated above and
given in the table below for easy reference.
Sl.No Head of claim Amount Amounts
awarded by the modified and
Tribunal (in recalculated
rupees) by this Court
1 Loss of earnings 13,000 20,000
2 Transport 1,500 1,500
4 Bystander 1,500 3,000
expenses
5 Medical expenses 5,676 5,676
6 Pain and sufferings 10,000 10,000
7 Loss of amenities 10,000 20,000
8 Loss of disability Nil 78,000
TOTAL 42,926 1,39,426
In the result, the appeal is allowed in part, by
enhancing the compensation by a further amount of
Rs.96,500/- with interest on the enhanced
compensation at the rate of 7.5% per annum from the
date of petition till the date of deposit, after after
M.A.C.A.No.810/2011
deducting interest for a period of 53 days i.e., the
period of delay in preferring this appeal and as
directed by this Court on 22.09.2021 in
C.M.Appln.No.1/2011, and a cost of Rs.5,000/-. The
third respondent/insurer 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.
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
DST/25.11.21 //True copy/
P.A.To Judge
