E.N.Murali @ Muraleedharan vs Balasubramanian
2022 Latest Caselaw 8134 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE M.R.ANITHA
        FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                          MACA NO. 18 OF 2013
  AGAINST THE ORDER/JUDGMENT IN OPMV 388/2008 OF MOTOR ACCIDENT
                      CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANT/PETITIONER:

             E.N.MURALI @ MURALEEDHARAN,
             AGED 28 YEARS, S/O NARAYANAN,
             EDAPPAL HOUSE, POOLAMADA DESOM,
             CHELAKKODE PO, PAZHAYANNUR,
             THALAPPILLY TALUK,
             THRISSUR DISTRICT.
             BY ADVS.
             SRI.SHEJI P.ABRAHAM
             SRI.O.K.MURALEEDHARAN


RESPONDENTS/RESPONDENTS:

    1        BALASUBRAMANIAN, AGED 42 YEARS
             S/O KRISHNANKUTTY EZHUTHASAN,
             KADAVANDATH HOUSE,
             VELLAPPARA OTTAPALAM. (DRIVER OF KL 48 5019 PICK UP
             VAN) * (DELETED)
             * THE NAME AT THE FIRST RESPONDENT IS DELETED FROM THE
             ARRAY OF THE RESPONDENTS AT THE RISK OF THE PETITIONER,
             AS PER ORDER DATED 21/11/2018 IN IA NO. 1/2018 IN MACA
             NO. 18/2013.
    2        VINOD
             S/O BALAN, 259 PUNNAKKATHARAYIL HOUSE, PAZHAYANUR,
             THRISSUR DISTRICT OWNER KL48 5019 PICK UP VAN)
    3        CHOLAMANDALAM MS. GENERAL INSURANCE COMPANY LIMITED
             IIND FLOOR, ACEL BUILDING, IYYATTIL JUNCTION, CHITTOOR
             ROAD, COCHIN AMENDMNET CARRIED OUT IA 3167/2012 DATED
             27.11.2010.
             BY ADVS.
             P.JACOB MATHEW
             MATHEWS JACOB (SR.)



     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 M.A.C.A No. 18 of 2013
                                               2




                                         JUDGMENT

This appeal has been filed against the award passed in

O.P.M.V No.388/2009 on the file of Motor Accidents Claims Tribunal,

Ottapalam (in short 'Tribunal'). Claim petition has been filed under

Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injury

sustained by the appellant/claimant in a motor accident occurred on

08.12.2008 at about 7.30 pm at Pazhayannur, Kallamkulam due to hit

with Tempovan bearing Registration No.KL-48-5019 while he was

travelling in a motor cycle. 1St respondent is the driver, 2nd respondent is

the owner of the offending vehicle and 3rd respondent is the insurer. A

total compensation of Rs.2,00,000/- has been claimed. It is alleged that

the accident happened due to the rash and negligent driving of the

tempovan by the 1st respondent.

2. Before the Tribunal, respondents 1 and 2 filed joint written

statement denying all the allegations attributed against the 1 st

respondent. It is contended that the accident happened due to the rash

and negligent riding of the motorcycle by the appellant/claimant himself.

3rd respondent filed written statement denying the negligence on the part

of the 1st respondent. It is further contended that there is no valid policy M.A.C.A No. 18 of 2013

coverage with respect to the offending vehicle. Cheque No.676067

dated 30.05.2008 of Punjab National Bank issued by the 2nd respondent

in favour of 3rd respondent insurance company was dishonoured for

insufficient fund. So there is no valid policy coverage with respect to the

offending vehicle at the time of accident. The policy was cancelled as

per letter dated 10.01.2008 and 2nd respondent has not paid the

premium even after the cheque was dishonoured, hence their liability is

denied. It is also contended that the compensation claimed under

various heads are also exorbitant and excessive.

3. Appellant/claimant was examined as PW1. Exts. A1 to

A12, B1 to B10 and X1 marked from the side of the appellant/claimant.

On evaluating the facts and circumstances, Tribunal found that the

accident happened due to the rash and negligent driving of tempovan by

the 1st respondent. It is further found that 3rd respondent insurance

company is not liable since there is no valid policy coverage with

respect to the offending vehicle during the relevant time and

respondents 1 and 2 are held liable to pay compensation to the

petitioner. A total compensation of Rs.95,470/- was awarded by the

Tribunal.

4. Dissatisfied with the quantum of compensation awarded by M.A.C.A No. 18 of 2013

the Tribunal, the appellant/claimant (hereinafter be referred as claimant)

approaches this Court in appeal for the various grounds stated in the

memorandum of appeal. 1St respondent was subsequently deleted from

the party array. Though notice was duly served to 2 nd respondent, there

is no appearance. Adv. P. Jacob Mathew, appeared on behalf of the 3 rd

respondent insurer. Lower court records were called for and perused.

5. Heard the learned counsel for the claimant as well as the

learned counsel for the 3rd respondent/insurer.

6. According to the learned counsel for the claimant, he was a

Bakery worker aged 28 years and his income was Rs.5,000/- per month.

But Tribunal was taken his income as Rs.3,000/- per month. That is very

low. It is further contended that claimant had undergone inpatient

treatment for 35 days in Medical College Hospital, Thrissur and he

had sustained serious injuries due to the accident. But Tribunal taken

only 6% permanent disability. Ext.A7 disability certificate issued by the

Doctor certifies 9.45% whole body disability. Ext.A8 disability certificate

issued by the Consultant Opthalmologist certifies 25% visual loss.

Hence 6% permanent disability taken by the Tribunal is very low and

seeks interference in that regard. It is also contended that

compensation awarded under the head of pain and suffering, loss of M.A.C.A No. 18 of 2013

amenities and loss of earning power etc. is very low.

7. The learned counsel for the 3rd respondent/insurer on the

other hand contended that insurer has been exonerated by Tribunal. It

is also contended that respondents 1 and 2 had filed

M.A.C.A.No.20/2012 against the award challenging the exoneration of

injurer. That appeal was allowed as per the judgment dated 23.03.2013

and company was held liable. It is further admitted that there is valid

policy of insurance. So in effect, there is no dispute with regard to the

liability of the 3rd respondent.

8. First aspect is with respect to the monthly income of the

injured. As stated earlier, monthly income claimed by the claimant is

Rs.5,000/-. The accident was on 08.12.2008. As per Ramachandrappa

v. Manager, Royal Sundaram Alliance Insurance Company Limited

[(2011) 13 SCC 236], the monthly income claimed by the claimant, who

is alleged to be a Bakery worker, is seems to be just and reasonable.

Accordingly, income of the claimant is taken as Rs.5,000/- per month.

9. Next is with regard to the injuries sustained by the claimant.

Ext.A6 is the discharge card issued from Medical College Hospital,

Mulamkunnathukavu, Thrissur which would show that claimant had

undergone inpatient treatment from 08.12.2008 to 12.01.2009 and M.A.C.A No. 18 of 2013

injuries diagnosed are fracture shaft of femur (r), fracture (l) orbit and

maxillary sinus (l), multiple abrasions, following alleged RTA. He was

treated for tibial fraction followed by ORIF/4.5 DCP and bone graft on

03.01.2009. SR done on 12.01.2009. ENT, Ophtal Consultation also

done. He also advised to attend Ophthalmology O.P after one month.

Ext.A9 is C.T.Scan report of brain which would show that fracture lateral

wall of left orbit, with proptosis of (L) eye, fracture posterolateral wall of

left maxillary sinus of nasal bone with bleed in nasal sinuses. Ext.A7 is

the disability certificate issued by Orthopaedic Consultant certifying

9.45% whole body disability. Ext.A8 is the disability certificate issued by

Consultant Opthalmologist certifying 25% eye loss. Ext.X1 is the

disability certificate issued by the Medical Board dated 08.02.2012.

Report says that patient walks with a limp, Linear healed surgical scar of

size 40 cm present over lateral aspect of (r) thigh, 8x4 cm scar present

over (r) tibia, which has healed with secondary intention, No tenderness

or oedema, Implant palpable on lateral aspect of thigh, Movements of

knee joint. As per Mc Bride Scale, 6% disability has been certified.

10. Tribunal taken permanent disability at 6%. Discharge

summary as well as C.T scan report reveal that claimant sustained

injuries on his left eye. The learned counsel for the insurer on the other M.A.C.A No. 18 of 2013

hand contended that disability certificate issued by the Medical Board is

to be accepted since it has been issued subsequent to other certificate

issued by the Orthopaedic Surgen as well as Opthalmologist. It is to be

noted that discharge card expressly stated the disability of left eye. C.T.

scan report also specifically stated that fracture lateral wall of left orbit,

with proptosis of (L) eye, fracture of posterolateral wall of left maxillary

sinus of nasal bone with bleed in nasal sinuses. Consultant

Opthalmologist also certifies 25% visual loss to the claimant. Medical

Board did not assess the disability sustained to the left eye. So, 6%

disability certified by the Medical Board cannot be accepted as the

actual disability sustained. Hence, I am of the considered view that

9.45% disability assessed in Ext.A7 disability certificate issued by the

Orthopaedic Consultant can be accepted for computing the loss of

earning power.

11. Monthly income of the claimant has already been fixed as

Rs.5,000/-. He had undergone inpatient treatment for a period of 35

days. He has been examined as PW1 and deposed about the accident,

injuries sustained by him and difficulties suffered due to the accident. In

view of the serious nature of injuries sustained by the claimant, 4

months loss of earning taken by Tribunal can very well be approved. M.A.C.A No. 18 of 2013

Refixing the amount towards loss of earning, it would come to

5,000x4=20,000/-. Deducting the amount already awarded by the

Tribunal, the balance would be Rs.8,000/- (20,000-12,000).

12. Towards the by stander expenses, Tribunal awarded only

Rs.7,000/-. He had undergone inpatient treatment for a period of 35

days. Since the accident was in the year 2008, Rs.250/- per day can be

taken towards bystander expenses. Hence under the head of bystander

expenses, claimant is entitled to get 250x35=8,750. After deducting the

amount already awarded, the balance would be Rs.1,750/- (8,750-

7,000). Towards extra nourishment, Tribunal awarded Rs.3,500/-. In

view of the nature of injuries as well as period of treatment undergone

by him, Rs.6,000/- seems to be reasonable towards extra nourishment.

Deducting the amount already awarded, the balance would be

Rs.2,500/- (6,000-3,500). Rs.18,000/- has already been awarded

towards pain and suffering. In view of the nature of injuries and period of

treatment as well as procedures undergone including surgery,

Rs.25,000/- can be awarded towards pain and suffering. Deducting the

amount already awarded, the balance would be Rs.7,000/- (25,000-

18,000).

13. Next is with respect to the compensation awarded towards M.A.C.A No. 18 of 2013

loss of future earning power. The claimant was aged 32 years at the

time of accident. Disability has already been fixed as 9.45%. As per

Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)

approved by the Constitution Bench in National Insurance Company

Limited v. Pranay Sethi and Ors (2017 (4) KLT 662) the suitable

multiplier would be '17'. Hence towards future earning power, the

claimant is entitled to get 5,000x12x17x9.45/100=96,390. Deducting the

amount already awarded, the balance would be Rs.59,670/- (96,390-

36,720). In view of the nature of injuries and permanent disability

suffered by him, an amount of Rs.15,000/- can be awarded towards loss

of amenities. Deducting the amount already awarded, the balance would

be Rs.5,000/- (15,000-10,000).Hence, the claimant is entitled to get

enhanced compensation of Rs.83,920/-

(59,670+5,000+7,000+2,500+1,750+8,000) rounded to Rs.83,950/-.

14. In the result, appeal allowed and claimant is allowed to

realize enhanced compensation of Rs.83,950/- (Eighty three thousand

nine fifty only) in this appeal, which will carry interest at the rate of 6.5%

per annum from the date of petition till realization excluding 113 days,

the delay caused in filing this appeal. 3 rd respondent/insurer is held

liable. Finding to the contra made by the Tribunal is hereby set aside. M.A.C.A No. 18 of 2013

3rd respondent/insurer shall satisfy the additional compensation granted

in this appeal, together with interest within a period of two months from

the date of receipt of certified copy of this judgment.

Appellant/claimant shall provide his Bank Account details

(attested copy of the relevant page of the Bank Passbook having details

of the Bank Account Number and IFSC Code of the branch) before the

Tribunal, within one month from the date of receipt of certified copy of

this judgment.

Sd/-

M.R.ANITHA, JUDGE rps/