Kerala High Court
B. Rama Variyar vs V.B. Rajan on 23 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
MACA NO. 1110 OF 2013
AGAINST THE AWARD DATED 24.09.2011 IN OP(MV) 2857/2005 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR
APPELLANT:
B. RAMA VARIYAR
S/O PAPPU VARASYAR,
RESIDING AT BRAHMAKULAM VARIYAM HOUSE,
P.O. THAIKKAD, GURUVAYOOR, THRISSUR DISTRICT.
BY ADVS.
SRI.T.C.SURESH MENON
SRI.A.R.NIMOD
RESPONDENTS:
1 V.B. RAJAN
RESIDING AT VADAKKEDATH PUTHENVEETTIL HOUSE,
CHEMBAMKANDAM, P.O. PONNUKKARA, THRISSUR-680 014.
2 NANDANAN
S/O SANKARAN, RESIDING AT CHORROTTIL HOUSE,
ELAMTHURUTHY, MARATHAKKARA, THRISSUR-680 320.
3 THE NEW INDIA ASSURANCE COMPANY LIMITED
KOLLANNUR BUILDING, PALACE ROAD, THRISSUR-680 020.
BY ADV. SRI.JOY JOSEPH (MANAYATHU)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 23.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA No. 1110 OF 2013
2
A. BADHARUDEEN, J.
===========================
MACA No. 1110 OF 2013
============================
Dated this the 23rd day of June, 2022
JUDGMENT
This appeal arises out of the award dated 24.09.2011 in
O.P.(MV) No.2857/2005 on the files of the Motor Accidents
Claims Tribunal, Thrissur. The petitioner is the appellant and
respondents before the Tribunal are the respondents herein.
2. In this matter the appellant who sustained injuries as
a result of a motor accident occurred on 16.10.2004, while he
was travelling on a motor cycle bearing registration No.
KL-8/D-8868, had approached the Tribunal and lodged claim
under Section 166 of the M.V.Act on the allegation that he had
sustained injuries when the motorcycle was hit down by a
tempo bearing registration No.KL-8/T-1903 came from behind
driven by the second respondent, in a rash and negligent
manner.
MACA No. 1110 OF 2013
3. The appellant claimed Rs.1,50,000/- from the
respondents 1 to 3.
4. Respondents 1 and 2 were declared as ex parte by
the Tribunal.
5. The third respondent Insurance Company filed
written statement. Negligence as well as the accident were
disputed while admitting the policy of the tempo involved in
the accident. Quantum of compensation also objected.
6. The Tribunal ventured the matter and recorded
evidence. Exts.A1 to A104 were marked on the side of the
appellant and Ext.B1 were marked on the side of the insurer.
7. The Tribunal evaluated the evidence and finally
granted Rs.93,440/- as compensation along with interest at
the rate of 8% per annum.
8. Now the quantum of compensation is under
challenge in this appeal. The learned counsel for the
appellant argued that the Tribunal fixed monthly income at
Rs.3,000/- as against his claim of Rs.3,500/-. According to the
learned counsel for the appellant, since the appellant who
MACA No. 1110 OF 2013
was aged 56 years at the time of accident, claimed Rs.3,500/-
as monthly income being an agriculturist, therefore the said
income as such, should have been accepted by the Tribunal.
9. The accident is of the year 2004. Therefore, there is
no reason to reduce the monthly income claimed by the
appellant since the monthly income fixed in relation to an
accident of the year 2004, as per the decision in
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Ltd. [(2011) 13 SCC 236] , is higher
than Rs.3,500/-. Therefore, monthly income of the appellant
is fixed as Rs.3,500/- for the purpose of calculating loss of
earning and disability income in this case.
10. It is argued by the learned counsel for the appellant
further that even though the appellant sustained fracture
pelvis and he underwent treatment for ten days initially and
two days thereafter, the Tribunal reduced disability assessed
as per Ext.A11 to 6% instead of 13% assessed as per Ext.A11
for non-examination of the author of Ext.A11. It is submitted
by the learned counsel for the appellant further that in view of
MACA No. 1110 OF 2013
the injuries and shortening noted in the Ext.A11, the disability
as such is liable to be accepted or some more addition is
absolutely necessary.
11. The learned Counsel for the insurance company
opposed increase of the percentage of disability, pointing out
the fact that the treatment records do not justify the disability
certificate Ext.A11, issued by the doctor who had not treated
the appellant at any point of time.
12. In this case, Ext.A5 is the copy of the wound
certificate issued from Aswini Hospital, Thrissur. A7 and A8
are discharge summaries issued from Aswini Hospital. The
same would show that the appellant was treated since he
sustained comminuted fracture left illiac wing. As per Ext.A8
discharge summary given by Dr.Madhav, also fracture of
pelvis with parietal wall haematoma and perirenal
haemotama were the diagnosis. It is noticed that as per
Ext.A11, Dr.Jacob P., Assistant Professor, Department of
Orthopedics, Medical College, Thrissur issued certificate
showing 13% whole body permanent disability to the
MACA No. 1110 OF 2013
appellant on the finding that there was malunion fracture of
left illiac bone. The Tribunal not accepted the disability as
such since the author of the Ext.A11 was not examined to
prove the same.
13. On appraisal of the evidence available, it is noted
that the treatment records do not show any malunion.
However, malunion was found in the disability certificate. But
the treatments records established the comminuted fracture
of pelvis and treatment thereon. In view of the matter, it is
necessary in the interest of justice to increase the percentage
of disability from 6% to 10%, Accordingly, disability income
also needs to be calculated based on 10% disability apart
from considering sufficiency of the compensation granted
under other heads.
14. It is submitted that the learned counsel for the
appellant that the loss of earnings granted by the Tribunal is
less, since the same is for a period of 4 months. Considering
the injuries and treatment, I am inclined to increase the loss
of money for a period of 5 months at the rate of Rs.3,500/-
MACA No. 1110 OF 2013
i.e.3500 x 5=17,500. Out of which, 12,000/- was granted by
the Tribunal. Accordingly, Rs.5,500/- (17,500-12,000) more is
granted towards loss of earnings..
15. Since multiplier applied by the Tribunal is not
disputed, taking the monthly income at Rs.3,500/-, the
disability income also re-calculated as under:
3,500 x 12 x 9x 10%= 37,800/-
Out of which, Rs.19,440/- was granted by the Tribunal.
Thus, Rs.18,360/- (37800-19440) more is granted under the
head 'disability income'.
16. Apart from that, learned counsel for the appellant
pressed for granting increase under the head loss of
amenities since the Tribunal granted Rs.8,000/- only under the
said head.
17. Taking note of the injuries and treatment as already
discussed, I am inclined to grant Rs.5000/- more under the
loss of amenities and also Rs.5,000 under the head pain and
sufferings. Rs.3000/- more is granted towards extra
nourishment.
MACA No. 1110 OF 2013
In the result, this appeal stands allowed. It is held that
the appellant is entitled to get Rs.1,30,300/- as compensation.
Out of which, Rs.93,440/- was granted by the Tribunal and the
balance amount of Rs.36,860/-(Rupees Thirty Six Thousand
and Eight Hundred and Sixty only) is granted as enhanced
compensation with the same rate of interest awarded by the
Tribunal, excluding interest for 436 days, which was
specifically disallowed by this Court, while condoning the
delay, payable by the Insurance Company, from the date of
petition till the date of deposit or realisation.
The Insurance Company is directed to deposit the same
in the name of the appellant within two months from today.
On deposit, the appellant can release the same.
Sd/-
A. BADHARUDEEN
JUDGE
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