Kerala High Court
Bijin Louis vs V.T.Sunny And Others on 3 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
MACA NO. 723 OF 2011
AGAINST THE AWARD IN OP(MV) NO.1777/2004 DATED 4.10.2020 ON THE FILE
OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR
APPELLANT/PETITIONER:
BIJIN LOUIS, S/O.K.P. LOUIS,
COOLA HOUSE, P.O.KURIACHIRA,, THRISSUR DISTRICT.
BY ADVS.
SRI.P.V.CHANDRA MOHAN
SRI.ANTONY SHYJU
RESPONDENTS/RESPONDENTS:
1 V.T.SUNNY, S/O. V.T.THOMAS,
VETTATH HOUSE, MARACKAL, KANNARA,, THRISSUR-68001
2 RAJAN, S/O.VELAYUDHAN
KAMBILI HOUSE, THEKKUMPADAM,, PEECHI, THRISSUR DISTRICT.
3 THE ORIENTAL INSURANCE CO.LTD.
DIVISIONAL OFFICE, 3RD FLOOR,, MAHESWARI BUILDING,
M.G.ROAD, THRISSUR.
BY ADVS.
SRI.N.S.NAJEEB FOR R3
SRI.C.HARIKUMAR FOR R1
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.723 of 2011 2
JUDGMENT
This appeal is filed by the petitioner in
OP(MV)No.1777 of 2014 on the file of the Motor
Accidents Claims Tribunal, Thrissur. The said claim
petition was filed by him seeking compensation for the
injuries sustained to him in a motor accident occurred
on 16.2.2004 when the motor cycle which was being
ridden by him was hit by a tempo van driven by the 2 nd
respondent, owned by the 1st respondent and insured with
the 3rd respondent. He contends that due to the impact
of the accident, he sustained very serious injuries
which resulted in permanent physical disability for
him. According to the claimant, he was an electrician,
aged 26 years with a monthly income of Rs.4,500/- at
the time of accident. The total compensation claimed by
him was Rs.1,89,000/-.
2. The owner and the driver remained ex-parte and
the 3rd respondent Insurance Company filed a written
statement admitting the coverage of policy. However,
the Insurance Company contended that there was
violation of policy conditions as the 2nd respondent was
not having a valid driving licence at the time of the
accident. The amount of compensation claimed was also
disputed by them.
3. The evidence in this case consists of Exts.A1
to A15 from the side of the appellant. A copy of the
insurance policy was marked as Ext.B1. No oral evidence
was adduced from either side. After the trial, the
Tribunal held that the accident occurred due to the
negligence on the part of the driver of the tempo van
and was also found that the driver was not duly
licenced at the time of the accident. The quantum of
compensation awarded was Rs.73,635/- and the Insurance
Company was directed to deposit the said amount along
with interest at the rate of 8% per annum and it was
also observed that the 3rd respondent-Insurance Company
can recover the said amount from the 1st respondent
after satisfying the award.
4. This appeal is filed challenging the quantum of
compensation by the appellant and seeking enhancement
thereof.
5. Heard both sides.
6. The learned counsel for the appellant contends
that the monthly income fixed by the Tribunal is only
Rs.2,500/- whereas he was engaged in the avocation of
an electrician and his monthly earnings was Rs.4,500/-.
Even though no documents were produced to substantiate
the said claim, he points out that even in the F.I.R
itself his avocation was stated as an Electrician. But
considering the fact that the accident occurred in the
year, 2004, the monthly income of Rs.2,500/- as taken
by the Tribunal appears to be on lower side. Going by
the principles laid down in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC
236] and Syed Sadiq v. Divisional Manager, United Indian
Insurance Company Limited [(2014)2 SCC 735], even in the case
of a coolie, the monthly income can be fixed as
Rs.4,500/- in respect of an accident occurred in the
year, 2004. In such circumstances, the entire monthly
income as claimed by the appellant ie. Rs.4,500/- can
be taken for the purpose of fixing the quantum of
compensation, since the accident in this case occurred
in the year 2004.
7. Another aspect highlighted by the learned
counsel for the appellant is relating to the percentage
of disability. He points out that even though as per
Ext.A11 certificate issued by Dr.Jyotish K., the
Lecturer in Orthopaedics of Medical College, Thrissur,
the percentage of disability was certified as 12% due
to loss of range of movements, loss of muscle strength,
loss of stability, scarring and deformity. However, the
Tribunal has taken only 4% of disability on the ground
that the doctor was not examined. In such
circumstances, the learned counsel for the appellant
contends that there is no justification on the part of
the Tribunal in not accepting the medical certificate.
On the other hand, the learned counsel for the
Insurance Company strongly opposed the said contentions
by submitting that the contends of Ext.P11 certificate
was not properly proved and hence no circumstances are
in existence warranting the interference in the finding
of the Tribunal. On going through the nature of
injuries sustained by the appellant, it can be seen
that the same are of serious in nature. Apart from the
above, consequent to the injury, he was also
hospitalized for a considerable period of 25 days. When
taking into account the nature of injuries as mentioned
in Ext.A6 wound certificate, it is probable that the
finding of the doctor in Ext.A11 is justified. I am of
the view that, unless any serious discrepancy is
pointed out in the matter of assessment of disability
by the Doctor, the medical certificate can be accepted
and it is not justifiable to discard the same, merely
because of the reason that, the doctor was not
examined. In this case, I am unable to find any such
discrepancy, which justifies the substitution the
expert opinion of the doctor, with the assessment of
Tribunal. In such circumstances, I do not find any
ground to disbelieve the percentage of disability as
certified by the doctor in Ext.A11 certificate and
accordingly it is admitted as such. At this juncture,
the learned counsel for the insurance company, points
out that the multiplier adopted by the Tribunal was 18,
which is not proper. It is seen from Ext. A14 driving
license that the date of birth of the petitioner is
16.06.1977 and the date of accident was 16.02.2004.
This shows that, the petitioner comes within the age
group of 25 to 30 and going by the multiplier as
stipulated in the case of Sarla Verma v. Delhi
Transport Corporation & Ors.[(2009)6 SCC 121], it is 17
and not 18 as applied by the Tribunal. Thus, while re-
working the compensation for permanent disability with
the revised monthly income, the percentage of
disability as certified in Ext.A11 and multiplier of
17, the amount payable under the said head comes to
Rs.1,10,160/- (Rupees One Lakh Ten thousand One hundred
and sixty only)(Rs.4,500x12x17x12/100). The Tribunal
has already awarded an amount of Rs.21,600/-. After
deducting the same, the additional amount receivable by
the appellant under this head is Rs.88,560/-.
8. The learned counsel for the appellant further
points out that no amount has been awarded by the
Tribunal for loss of amenities even though he sustained
serious permanent disablement. Considering the nature
of injuries and the physical discomfort which may
emanate from such injuries, it is in the interest
justice to grant some amount under the head of loss of
amenities. Taking into account the overall
circumstances of the case, I am of the view that, an
amount of Rs.10,000/- would be reasonable under this
head and it is accordingly awarded.
9. Consequent to the revision of monthly income,
the appellant shall be entitled for additional amounts
under the head of loss of earnings as well. The
Tribunal has awarded an amount of Rs.7,500/- under this
head which was calculated at the rate of Rs.2,500/- for
a period of three months. Consequent to the revision of
monthly income, he is found entitled for a further sum
of Rs.6,000/-under this head.
In the above circumstances, the total amount of
compensation, in addition to the amount already awarded
by the Tribunal, is determined as Rs.1,04,560/- (Rupees
One Lakh Four thousand Five hundred and Sixty only)
[Rs.88560 + 10,000 + 6000] and the Insurance Company
shall deposit the said amount along with interest and
proportionate cost as determined by the Tribunal.
However, the finding relating to the right of the
Insurance Company to recover the said amount from the
1st respondent is retained.
The above appeal is disposed of accordingly.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
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