Kerala High Court
Manojkumar S.R vs Director General Of Police on 13 January, 2022
MACA NO. 1634 OF 2007
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
MACA NO. 1634 OF 2007
AGAINST THE ORDER/JUDGMENT IN OPMV 2165/2002 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,TRIVANDRUM
APPELLANT/S:
MANOJKUMAR S.R., MUDUMBIL VEEDU, KOCHIRAVILA,
MELAPURAM,, MANACAUD P.O., THIRUVANANTHAPURAM.
BY ADVS.
SRI.R.T.PRADEEP
SRI.V.VIJULAL
RESPONDENT/S:
1 DIRECTOR GENERAL OF POLICE
KERALA POLICE, THIRUVANANTHAPURAM.
2 THE DISTRICT INSURANCE OFFICER, KERALA STATE
INSURANCE DEPARTMENT, THYCAUD,, THIRUVANANTHAPURAM.
3 G.L. SUDHAKUMARI, T.C.49/999 AMBADI, CHIRAMUKKU,
MANACAUD P.O.,, THIRUVANANTHAPURAM.
4 THE MANAGER, UNITED INDIA INSURANCE CO. LTD.,
P.B.NO.552,, MALANKARA BUILDING, V.J.T.HALL ROAD,
PALAYAM,, THIRUVANANTHAPURAM.
BY ADVS.
GOVERNMENT PLEADER
SRI.G.P.SHINOD
SRI.N.S.MOHAMMED USMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 1634 OF 2007
2
JUDGMENT
The appellant was the petitioner in OP(MV) No.2165/2002
on the file of the Motor Accidents Claims Tribunal,
Thiruvananthapuram. The respondents in the appeal were the
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
26.03.2002. It was his case that, on the above said date, while
he was riding pillion on a scooter bearing registration No.KL-01
P 1410 from Ambalathara to Manacaud, a motor cycle bearing
registration No.KL-01-D-6375, ridden by a Police Officer under
the 1st respondent, hit the scooter on which the appellant was
traveling. The appellant sustained multiple injuries and treated
at the Medical College Hospital, Thiruvananthapuram. He was
referred to the Government Opthalmologic Hospital,
Thiruvananthapuram, where he was admitted and treated as
an inpatient. The appellant had sustained a fracture of his left
foot, rupture of eye globe with profuse bleeding and loss of
vision to the left eye. The appellant was a medical
representative by profession and was earning a monthly income
MACA NO. 1634 OF 2007
of Rs.5,000/-. The motor cycle was owned by the 1st respondent
and insured with the 2nd respondent. The scooter was owned by
the 3rd respondent and was insured with the 4 th respondent.
Hence the appellant claimed a compensation of Rs.7,44,000/-
from the respondents, which claim was limited to Rs.5,00,000/-.
3. The respondents 1 and 3 did not contest the proceeding.
4. The respondents 2 and 4 had filed separate written
statements. The 2nd respondent disputed that there was
negligence on the rider of the motor cycle. Nevertheless, the
2nd respondent had admitted that the motor cycle had a valid
insurance coverage. The 4th respondent had admitted that the
scooter had a valid insurance coverage. But, it was asserted
that the accident occurred due to the negligence of the rider of
the motor cycle.
5. The appellant had examined himself as PW1 and
marked Exts.A1 to A7 in evidence. The respondents did not let
in 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 2 nd respondent an
amount of Rs.15,000/- with interest at the rate of 7.5% per
MACA NO. 1634 OF 2007
annum from the date of petition till the date of realisation.
7. Dissatisfied with the quantum of compensation awarded
by the Tribunal, the petitioner is in appeal.
8. Heard Sri. R.T. Pradeep, the learned counsel appearing
for the appellant/petitioner, the learned Government Pleader
appearing for the respondents 1 and 2, Sri.G.P. Shinod, the
learned counsel appearing for the 3rd respondent and Sri.
Mohammed Usman, the learned counsel appearing for the 4 th
respondent.
9. The question that emanates for consideration in the
appeal is whether the quantum of compensation awarded by
the Tribunal is reasonable and just ?
Negligence and Liability
10. Ext.A3 final report filed by the Police proves that the
accident was caused due to negligence of the rider of the motor
cycle. Indisputably, the 1st respondent was the owner and the
2nd respondent was the insurer of the motor cycle. The
respondents have not let in any evidence to discredit Ext.A3
final report. Therefore, it is the 2nd respondent, who is to
indemnify the liability of the 1st respondent arising out of the
accident.
MACA NO. 1634 OF 2007
Income
11. The appellant had claimed that he was a medical
distributor by profession and was earning a monthly income of
Rs.5,000/-. For want of materials, the Tribunal fixed the
monthly income of the appellant notionally at Rs.2,000/-.
12. In Ramachandrappa vs. Manager, Royal
Sundaram Alliance Insruance Company Ltd. : (2011) 13
SCC 236, the Honourable Supreme Court has fixed the notional
income of a coolie worker in the year 2004, at Rs.4,500/- per
month.
13. Following the yardstick in the afore-cited decision and
considering the fact that the accident occurred in the year
2002, I re-fix the notional monthly income of the petitioner at
Rs.3,500/-.
Loss of earnings
14. It is proved and established that the appellant had
suffered a fracture to his left foot, that his left eye globe was
ruptured and that he had a loss of vision to his left eye. He was
initially treated at the Medical College Hospital,
Thiruvananthapuram and, thereafter, referred to the
MACA NO. 1634 OF 2007
Opthalmologic Hospital, Thiruvananthapuram. Then, he was
again treated at the General Hospital, Thiruvananthapruam. In
the above factual background, I hold that he was indisposed
for a period of three months.
15. In view of the refixation of the notional monthly
income of the appellant at Rs.3,500/- per month, I award the
appellant an amount of Rs.10,500/- towards 'loss of earnings'.
Disability
16. The appellant was examined as PW1 and produced and
proved Exts.A1 to A7. Ext.A4 discharge card, substantiates
that the appellant had lost his left eye vision earlier due to
glaucoma. It is also noted that he had an optic atrophy and
aliary. Nonetheless, it was noted that the appellant had suffered
a rupture of left eye globe with profuse bleeding. Subsequently,
the appellant appeared before the Medical Board attached to
the Medical College Hospital, Thiruvananthapuram, who
certified that the appellant has a visual disability of 30%.
17. The Tribunal did not taken into consideration Ext.A7
disability certificate for the reason that there was no nexus
between the loss of vision to the left eye of the appellant with
the accident that occurred on 23.06.2002, particularly because
MACA NO. 1634 OF 2007
in Ext.A4 it was written that the appellant had lost his vision
due to glaucoma earlier.
18. In Raj Kumar vs. Ajay Kumar : [2011 (1) KLT 620],
the Honourable Supreme Court has categorically held that in
an injury claim, if the Tribunal is not satisfied with the disability
certificate before it, the Tribunal has to refer the
injured/claimant to a duly constituted Medical Board. Similarly
it was observed that, what needs to be looked into an injury
claim is the functional disability of the injured/claimant.
19. In the case at hand the appellant himself produced
Ext.A7 disability certificate issued by the Medical Board
attached to the Medical College Hospital, Thiruvananthapuram
wherein his visual disability was assessed at 30%.
20. On a co-joint reading of Ext.A7 disability certificate
with Ext.A4 discharge card it can be gathered that the
appellant had lost his vision due to glaucoma. However, it was
also noted that he had a rupture of left eye globe with profuse
bleeding. Taking into account the injury sustained to the
appellant to his left eye read with the disability assessed in
Ext.A7, I fix the 'functional disability' of the appellant, taking
note of the fact that he was a medical representative, at 10%.
MACA NO. 1634 OF 2007
Multiplier
21. The appellant was aged 18 years at the time of the
accident. In the light of the law laid down in Sarla Varma vs.
Delhi Transport Corporation [2010 (2) KLT 802], the
relevant multiplier to be adopted is '18'.
Loss due to disability
22. Taking into account the above mentioned factors,
namely, the notional monthly income of the petitioner at
Rs.3,500/-, his functional disability at 10% and the multiplier at
18, I award him an amount of Rs.75,600/- for 'loss due to
disability'.
Pain and sufferings and loss of amenities
23. The Tribunal had awarded an amount of Rs.5,000/-
each under the above two heads.
24. Taking note of the fact that the appellant was only 18
years at the time of the accident, that he has suffered a
functional disability of 10% and that he was indisposed for a
period of three months, I award him a further amount of
Rs.5,000/- each under the aforesaid heads.
25. With respect to the other heads of compensation, I find
MACA NO. 1634 OF 2007
that the Tribunal has awarded reasonable and just
compensation.
26. On an overall re-appreciation of the pleadings and
materials on record and the law referred to in the afore-cited
precedents, I hold that the appellant/petitioner is entitled for
enhancement of compensation as modified and recalculated
above and given in the table below for easy reference.
Sl. Head of claim Amount Amount
No. awarded by the awarded by
Tribunal (in this Court
Rs.) (in Rs.)
1. Loss of earnings 2,000 10,500
6. Medical expenses 1,000 1,000
7. Pain and sufferings 5,000 10,000
8. Loss of amenities 5000 10,000
9. Loss due to disability 0 75,600
Total 10,450 108850
rounded to
Rs.15,000
MACA NO. 1634 OF 2007
In the result, the appeal is allowed by enhancing the
compensation by a further amount of Rs.93,850/- with interest
at the rate of 7.5% per annum and a cost of Rs.10,000/-. The
2nd respondent is ordered to deposit the enhanced
compensation amount with interest and cost before the
Tribunal within period of 60 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 deposited amount to the appellant in accordance
with law.
Sd/-
C.S.DIAS, JUDGE
rkc/15.01.22
