C.K.Sukumaran vs New India Assurance Co.Ltd
2021 Latest Caselaw 21017 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
  MONDAY, THE 11TH DAY OF OCTOBER 2021 / 19TH ASWINA, 1943
                    MACA NO. 821 OF 2012
AGAINST THE AWARD DATED 17.02.2013 IN OP(MV)NO.2230/2004 OF
          MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR
APPELLANT/THIRD RESPONDENT:

NEW INDIA ASSURANCE COMPANY LTD, KOLLANNUR BUILDING, PALACE ROAD, THRISSUR.

BY ADV SRI.RAJAN P.KALIYATH

RESPONDENT/CLAIMANT:

SUKUMARAN.C.K., S/O. SUKUMARAN, CHERKKARA HOUSE, GANESAMANGALAM, VATANAPPILLY, THRISSUR DISTRICT, NOW RESIDING AT GARDEN APARTMENTS 21/OLD NO.10 PYCROFTS GARDEN ROAD, CHENNAI - 600006.

BY ADV SRI.P.V.CHANDRA MOHAN

THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2021, ALONG WITH CO.95/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.821/2012& C.O.No.95/2012

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 11TH DAY OF OCTOBER 2021 / 19TH ASWINA, 1943 CO NO. 95 OF 2012

AGAINST THE JUDGMENT IN MACA 821/2012 OF HIGH COURT OF KERALA, ERNAKULAM CROSS OBJECTOR/ RESPONDENT:

C.K.SUKUMARAN, S/O.KUMARAN CHERKKARA HOUSE, GANESAMANGALAM, VATANAPPILLY, THRISSUR DISTRICT, NOW RESIDING AT GARDEN APARTMENTS 21(OLD NO 10) PYCROFTS GARDEN ROAD, CHENNAI 600006

BY ADV SRI.P.V.CHANDRA MOHAN

RESPONDENT/APPELLANT:

NEW INDIA ASSURANCE CO.LTD., KOLLANNUR BUILDING, PALACE ROAD, THRISSUR

BY ADV SRI.RAJAN P.KALIYATH

THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2021, ALONG WITH MACA.821/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

M.A.C.A.No.821/2012& C.O.No.95/2012

Dated this the 11th day of October,2021

COMMON JUDGMENT

As the appeal and cross-objection arise out of the

same award in O.P.(MV)No.2230/2004 on the file of the

Motor Accidents Claims Tribunal, Thrissur, they are

being disposed of by this common judgment. 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,

claiming compensation on account of the injuries that

he sustained in an accident on 11.03.2001. He

contended that, while he was travelling as a passenger

in an auto rickshaw bearing registration No.KL-8/2064

through the Ayyanthole Civil Line Quarters Road,

when the auto rickshaw reached the road junction, a

car bearing registration No.KL-8/TC 14/2000(car)

came from the south-north direction and hit the auto M.A.C.A.No.821/2012& C.O.No.95/2012

rickshaw. Due to the impact, the auto rickshaw went

off the road and hit on the compound wall. The

petitioner sustained serious injuries. The car was

driven by the second respondent, owned by the first

respondent and insured with the third respondent. The

auto rickshaw was insured with the fifth respondent,

owned and driven by the fourth respondent. The

petitioner was treated as an inpatient in Mother

Hospital, Olari, Thrissur, for the period from

11.03.2004 to 20.03.2004. The petitioner was aged 65

years on the date of accident. He was doing marketing

of Form Rubber products and Consultancy service and

earning a monthly income of Rs.25,000/-. The

petitioner claimed compensation from the respondents

at Rs.5,75,000/-; which was limited to Rs.2,00,000/-.

3. The two other fellow passengers in the auto

rickshaw also filed O.P.(MV)Nos.2248/2004 &

3185/2004 before the same Tribunal. M.A.C.A.No.821/2012& C.O.No.95/2012

4. The respondents 1, 2 and 4 did not contest

the proceedings and were set ex parte.

5. The third respondent had filed a written

statement admitting that the car had a valid insurance

policy. However, it was contended that the accident

occurred due to the negligence of the auto rickshaw.

6. The fifth respondent had filed a written

statement, inter alia, contending that the auto

rickshaw had valid insurance coverage; but the fourth

respondent did not hold a valid driving licence. Hence,

the fifth respondent was not liable to indemnify the

fourth respondent.

7. The Tribunal consolidated and jointly tried all

the claim petitions. The petitioner in the captioned

claim petition was examined as PW1 and two Doctors

were examined as PWs2 and 3 and Exts.A1 to A24

series were marked in evidence. The respondents did

not let in any evidence.

M.A.C.A.No.821/2012& C.O.No.95/2012

8. The Tribunal, after analysing the pleadings

and materials on record, by a common award allowed

the captioned claim petition, by permitting the

petitioner to recover from the third respondent an

amount of Rs.1,99,000/- with interest and cost.

9. Aggrieved by the impugned award, the third

respondent/insurer has filed M.A.C.A.No.821/2012 and

dissatisfied with the quantum of compensation, the

petitioner has filed C.O.No.95/2012.

10. Heard; Sri. Rajan P.Kaliyath, the learned

counsel appearing for the appellant/third

respondent-insurer and Sri. P.V. Chandra Mohan, the

learned counsel appearing for the respondent/cross

objector/claimant.

11. The core question that emerges for

consideration in the appeal and cross-objection is

whether the quantum of compensation awarded by the

Tribunal is reasonable and just?

M.A.C.A.No.821/2012& C.O.No.95/2012

Liability and negligence:

12. Ext.A2 final report filed by the police proves

that the accident occurred due to the negligence of the

second respondent - the driver of the car. Admittedly,

the first respondent was the owner and the third

respondent was the insurer of the car. The third

respondent admitted that the car had a valid insurance

coverage and had not proved that the second

respondent had violated the insurance policy

conditions. Therefore, the third respondent is to

indemnify the liability of the second respondent.

Income of the petitioner:

13. The petitioner had averred in the claim

petition that he was doing marketing of Form Rubber

products and Consultancy service, and was a self

employed person, earning a monthly income of

Rs.25,000/-. In order to substantiate his assertion, he

produced Ext.A9 Income Tax SARAL form for the M.A.C.A.No.821/2012& C.O.No.95/2012

financial year 2003-04/assessment year 2004-05 before

the Tribunal.

14. On a perusal of Ext.A9, it is seen that the

petitioner had an annual income of Rs.43,322/- from

his property, an annual income of Rs.89,520/- from his

profession and an annual agricultural income of

Rs.1,29,720/-.

15. The Tribunal, after considering the income

derived by the petitioner from the above three sources,

principally took the income of the petitioner from his

business at Rs.10,000/- per month to fix the

compensation for 'loss due to disability'.

16. I hold that the fixation of income of the

petitioner by the Tribunal to be reasonable and

justifiable. I say this because, the petitioner has not

proved that due to the injury sustained in the accident,

his income from his property or agricultural activities

has depreciated subsequent the accident. He has not M.A.C.A.No.821/2012& C.O.No.95/2012

produced any materials to prove this aspect.

Therefore, taking into account the petitioner's own

assertion in the claim petition that he was a self

employed person doing marketing of Form Rubber

products and Consultancy service, only the income

from his business at Rs.89,520/- per year can be taken

for the purpose of calculating compensation for loss

due to disability. Hence, I confirm the finding of the

Tribunal fixing the monthly income of the petitioner at

Rs.10,000/-.

Loss due to disability:

17. The petitioner has averred in the claim

petition that he had sustained a fracture of both

clavicles, fracture head of fibula left and intra

articular fracture medial tibial condyle left. In order to

prove the said aspect, the petitioner produced Ext.A7

treatment records. In the said document also, it is

substantiated that the petitioner had a comminuted M.A.C.A.No.821/2012& C.O.No.95/2012

fracture of the lateral 3rd of the clavicle with mal

union, abnormal mobility and movements of the left

shoulder are not free. The petitioner also produced

Ext.A8 permanent disability certificate, wherein it

certified that the petitioner has a whole body

permanent disability of 30%. It is also certified that the

petitioner's right shoulder has arranged of movement

loss of 20% average and his left shoulder non union of

the left clavicle with painful of all movements ROM

loss is 40%. To prove Ext.A8, the petitioner examined

PW2. PW2 was cross-examined by length by the third

respondent-insurer. The Doctor withstood the

cross-examination and categorically deposed that the

petitioner has sustained a non union.

18. The Tribunal after considering Ext.A8 and the

oral testimony of PW2 arrivedat a conclusion that

there was no non union, but only mal union. On what

basis the Tribunal has arrived at the said finding is not M.A.C.A.No.821/2012& C.O.No.95/2012

discernible because PW2 who corroborated Ext.A8 has

clearly stated that the petitioner has a left shoulder

non union of left clavicle with painful restrictions of

movements and also as a right shoulder range of

movement loss to the extent of 20%. The above injuries

also stand corroborated by Ext.A7 treatment records.

19. In Raj Kumar v. Ajay Kumar [2011(1)KLT

620(SC)] the Hon'ble Supreme Court has laid down the

law by stating that what needs to be assessed by the

Tribunal is the effect of the permanent disability on

the earning capacity of the injured/victim. In other

words, the principle factor to be looked into is the

activities that a claimant can continue with the

disability and the loss of income and avocation due to

the disability.

20. Taking into account that the petitioner was

aged 65 years at the time of the accident, he was doing

marketing of Form Rubber products and Consultancy M.A.C.A.No.821/2012& C.O.No.95/2012

service and that there was a mal union of the left

clavicle with a loss of movement of the right clavicle,

which the Doctor has certified in Ext.A8 at the rate of

12% and 6%, respectively, with loss of muscle power

due to the mal union at 3%, I hold that the petitioner

has a 'functional disability' of 21% instead of 20% fixed

by the Tribunal.

Multiplier

21. Admittedly, the petitioner was born

04.05.1938. The accident occurred on 11.03.2004.

Therefore, the petitioner had crossed the age of 65 on

the date of accident.

22. In the light of the law laid down in Sarala

Varma and others v. Delhi Transport Corporation

and others [(2010) 2 KLT 802 (SC)], the relevant

multiplier to be adopted is '5'.

23. On a consideration of the above-mentioned

factors namely; the monthly income of the petitioner at M.A.C.A.No.821/2012& C.O.No.95/2012

Rs.10,000/-, his functional disability at 21%, the

multiplier at '5', I fix the compensation for loss due to

disability at Rs.1,26,000/- instead of Rs.1,20,000/- fixed

by the Tribunal.

Loss of earnings:

24. The Tribunal has held that the petitioner was

indisposed for a period of four months. Taking note of

the injuries in Ext.A7 read with Ext.A8, I find that the

period of four months fixed by the Tribunal is

reasonable and just. Therefore, I confirm the 'loss of

earnings' at Rs.25,000/-.

Extra nourishment:

25. Even though the petitioner had claimed an

amount of Rs.2,500/- towards 'extra nourishment' and

Rs.500/- towards 'damage to clothing', the Tribunal did

not award any amount under the said heads.

26. Considering the fact that the petitioner was

hospitalised for a period of 10 days and was indisposed M.A.C.A.No.821/2012& C.O.No.95/2012

for a period of four months, I award an amount of

Rs.1,500/- towards 'extra nourishment' and Rs.500/-

towards 'damage to clothing'.

Loss of amenities:

27. The petitioner had claimed an amount of

Rs.20,000/- as compensation for 'loss of amenities'.

The Tribunal awarded an amount of Rs.8,000/-, which

according to me, is on the lower side. As I have already

fixed the 'functional disability' of the petitioner at 21%

and the fact that he was hospitalised for a period of 10

days and indisposed for a period of four months, I hold

that he is entitled for enhancement of compensation

under the said head by a further amount of Rs.12,000/-

i.e., Rs.20,000/-.

28. With respect to the other heads of

compensation, I find that the Tribunal has awarded

reasonable and just compensation.

29. On an overall re-appreciation of the M.A.C.A.No.821/2012& C.O.No.95/2012

pleadings, materials on record and the law referred to

in the afore-cited decisions, I hold that the

cross-objector /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
                                       Tribunal (in     and
                                         rupees)    recalculated
                                                       by this
                                                       Court
     1      Loss of earnings                     40,000         40,000
     2      Transport                                4,000          4,000
            expenses

            clothing
     4      Medical expenses                     10,256         10,256
     5      Bystander                                1,500          1,500
            expenses
     6      Extra nourishment                          Nil          1,500
     7      Pain and sufferings                  15,000         15,000
     8      Loss of amenities                        8,000      20,000
     9      Loss due to                         1,20,000      1,26,000
            disability
                           TOTAL               1,98,756      2,18,756
                                               rounded to Rs.
                                               1,99,000 2,18,800
 M.A.C.A.No.821/2012&
C.O.No.95/2012

In the result, M.A.C.A.No.821/2012 is dismissed

and C.O.No.95/2012 is allowed, by enhancing the

compensation by a further amount of Rs.20,000/-

with interest at the rate of 8% per annum from the

date of petition till the date of realisation and a cost of

Rs.4,000/-. The respondent in the Cross-objection/

third respondent-insurer is ordered to deposit the

enhanced compensation with interest and costs 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 to

the Cross-objector/petitioner, in accordance with law.

All pending interlocutory applications will stand

closed.

Sd/-

                                      C.S.DIAS,JUDGE

DST/11.10.21                                       //True copy/

                                                  P.A.To Judge