Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 2ND DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 AGAINST THE AWARD DATED 16.11.2012 IN OP(MV)NO.1176/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR APPELLANT/PETITIONER: JIJEESH S/O. UNNIKRISHNAN, RESIDING AT ANTHOORUVALAPPIL VEETTIL, IYYAL, KUNNAMKULAM, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENTS/RESPONDENTS: 1 EARNEST S/O. ANTHAPPAN, RESIDING AT KARUMPARAMBIL HOUSE, PALLIPORT DESOM, KAZHUPPILLY VILLAGE, ERNAKULAM DISTRICT-683 515. 2 PUSHPPAN S/O. GOVINDAN, RESIDING AT KIZHAVANAKATHIL VEEDU, CHIRANELLUR VILLAGE, ERNAKULAM DISTRICT-682 034. 3 NEW INDIA ASSURANCE COMPANY LTD. KALAMASSERY, ERNAKULAM DISTRICT-683 104. BY ADVS. SRI.P.M.BENZIR SRI.P.G.GANAPPAN SRI.JAICE JACOB SRI.G.G.MANOJ THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The appellant was the petitioner in O.P.(M.V.) No.1176/2006
on the files of the Motor Accident Claims Tribunal, Thrissur. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 31.01.2006. According to the appellant, the accident occurred, when the bicycle ridden by him was hit by a lorry bearing Registration No. KL 7/U 9378. The said lorry was owned by the 1 st respondent, driven by the 2nd respondent and was insured with the
3rd respondent at the time of the accident. According to the appellant, he was a minor aged 16 years at the time of the accident and he sustained very serious injuries and consequential physical disabilities in the accident. The claim petition was submitted in such circumstances.
2. The 3rd respondent resisted the claim petition by filing
a written statement wherein they admitted the coverage of policy. However, it was contended that, the 2 nd respondent was not having a valid driving license and therefore, violation of policy conditions was alleged.
3. The evidence in this case consists of Exts.A1 to A8
from the side of the appellant and Exts.B1 to B5 were marked from the side of the respondents. After the trial, the Tribunal found that the accident occurred due to the negligence of the 2 nd respondent and it was also found that the 2 nd respondent was not having a proper driving license at the time of the accident. Accordingly, the initial liability to pay the compensation was imposed upon the 3rd respondent by granting them the right to recover the compensation from 1 st respondent. The quantum of compensation was fixed as Rs.54,400/- and the said amount was directed to be deposited by the 3rd respondent with interest with interest @ 8% per annum from the date of petition till realisation subject to the right of recovery granted to them. This appeal is submitted by the appellant/claimant seeking enhancement of compensation.
4. Heard Sri.Nimod A.R., learned counsel for the appellant, Sri.P.M.Benzir, learned counsel appearing for the 1 st respondent and Sri.P.G.Ganappan, learned counsel appearing for the 3rd respondent.
5. The learned counsel appearing for the 1 st respondent
points out that, the right of recovery granted to the 3 rd respondent was challenged by the said respondent before this Court by filing M.A.C.A. No.1560/2014. As per the judgment dated 17.02.2017, the said appeal was allowed by setting aside the said finding of the Tribunal. The copy of the judgment passed by this Court in M.A.C.A. No.1560/2014 was made available by him before this Court for perusal.
6. The question that arises for consideration in this case
is whether any enhancement of compensation is to be granted or not. The learned counsel for the appellant submits that the compensation awarded by the Tribunal towards disability was Rs.25,920/- which is a meagre amount. The Tribunal, for the purpose of assessing the compensation for disability, took the notional monthly income as Rs.2,000/- only. Even though the physical disability certified by the Doctor as per Ext.A6 was 10%, the Tribunal accepted only 6% mainly on the reason that the Doctor who issued the said certificate was not examined. The learned counsel for the appellant points out that the finding of the
Tribunal on the said issues was not proper. After considering the materials placed on record, I find force in the said contention. As regards the monthly income, it is to be noted that, even though the appellant was a minor and non-earning member as of the date of the accident, the amount of Rs.2,000/- appears to be too low for an accident that occurred in the year 2006. The crucial aspect to be noticed is that even though he was a non-earning member at the time of the accident, consequent to the injuries, his ability to earn in future is affected adversely. Even though he was only 16 years of age at the time of the accident, in the very near future, he is likely to start earning, and at that point in time, the injuries and the physical disability consequent to the same will seriously affect his abilities. Since he has to carry the disability and live with it throughout his life, it needs to be compensated adequately by taking a reasonable monthly income, which an able-bodied man would have earned in similar circumstances. When considering the said question, the relevance of the monthly income that is usually taken for an ordinary worker comes into play, and the
same can be adopted as a notional income for a
case of this nature as well. It is to be noted in this regard that, in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] the Honourable Supreme Court was pleased to take the monthly income of an ordinary worker without any skills as Rs.4,500/- for the year 2004 even without the support of any evidence. Therefore, the monthly income for the year 2006 can be reasonably fixed as Rs.5,500/- in respect of an ordinary employee and considering the future potential of the appellant who was just aged 16 years at the time of the accident, the same can be taken as the criteria for fixing the notional income. Accordingly, Rs.5,500/- is accepted as the notional income for assessing the compensation.
7. The next aspect relates to the percentage of disability.
The Tribunal accepted only 6% even though in Ext.A6, the whole body disability certified by the Doctor was 10%. On going through the materials, it can be seen that the injuries suffered by the appellant include Fracture ilium right, fracture right pubic rami, lacerated wound over scrotum-sutured, and minimal fluid in the abdomen. In the disability certificate, it is clearly mentioned that
the said fracture is malunited. Besides the same, he has pain on the hip when sitting and walking continuously and has difficulty in squatting and climbing stairs. It was in that circumstance an assessment of 10% was made as the disability. In G.Manikantan v.Janardhanan Nair [2021 (6) KLT SN 32], this Court specifically considered the consequences of non-examination of the Doctor for proving the disability certificate, and it was held that, merely for non-examination, the percentage of disability certified in the certificate need not be scaled down by the Tribunal unless there are serious discrepancies in such certificate. In this case, on perusal of the disability certificates and considering the same in the light of the injuries sustained by him, I do not find any discrepancies. Moreover, it is discernible from the observations made in the award that, the Tribunal examined the appellant, and the Tribunal was convinced of the physical disabilities consequent to the injuries as well. Therefore, I do not find any justifiable reason for reducing the percentage of disability to 6% from the disability of 10% as assessed in Ext.A6. Therefore, to calculate the compensation, the disability as certified in Ext.A6 should be
taken. Thus, while reassessing the compensation with the above criteria, the amount towards disability would come to Rs.1,18,800/- (5,500 x 12 x 18 x 10/100). The amount already awarded by the Tribunal is Rs.25,920/- and thus, the additional compensation would come to Rs.92,880/-.
8. No amount is granted towards loss of earnings or loss
of studies. In view of the fact that the appellant was only a student with no earnings on his own at the time of the accident, the compensation for loss of earnings or loss of studies on the basis of the monthly income fixed above cannot be granted. However, considering the period during which the appellant had undergone treatment and the impact it might have caused on his studies, a
reasonable amount can be granted for the same and in the facts
and circumstances of the case, I deem it appropriate to fix it as Rs.5,000/-.
9. The amount awarded by the Tribunal towards pain and
suffering and loss of amenities of life were Rs.12,000/- and Rs.10,000/- respectively. As observed above, he sustained serious injuries on the right ilium and a fracture of the right pubic
rami. It resulted in stiffness in the hip and pain as well. Therefore, said injury will have restrictions on his movement throughout the life. In such circumstances, some additional compensation needs to be granted under both the heads referred to above. Therefore, I am of the view that in the facts and circumstances of the case, the compensation under both heads can be fixed as Rs.25000/- each, thereby resulting in an additional compensation of Rs.13,000/- and Rs.15,000/- respectively. Similarly, no amounts are seen granted towards extra nourishment and damage to clothing. The appellant had undergone inpatient treatment for 12 days. Considering the said aspect, I deem it appropriate to grant Rs.1,000/-each under the said heads. Accordingly, the total
compensation of Rs.1,27,880/- (92,880 + 5,000 + 13,000 + 15,000 + 1,000 + 1,000).
10. In the result, this appeal is allowed. The award dated
16.11.2012 passed by the Motor Accident Claims Tribunal, Thrissur in O.P.(M.V.) No.1176/2006 is hereby modified by granting additional compensation of Rs.1,27,880/- (Rupees one lakh twenty seven thousand eight hundred and eighty) and the
said amount shall be deposited by the 3 rd respondent with interest at the rate was ordered by the Tribunal and with proportionate costs, within a period of three months from the date of receipt of copy of this judgment. However, as the right of recovery granted to the 3rd respondent by the Tribunal is already set aside by this
Court as per judgment dated 17.02.2017 in M.A.C.A. No.1560/2014, no liability can be imposed on the 1 st respondent for the additional amount. It is further clarified that the claimant shall furnish the details
of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal.
Sd/- ZIYAD RAHMAN A.A. JUDGE scs