Sumesh, S/o.Ayyappan vs Hyderali, S/o.Kunhimarakar

Sophy Thomas, J

The claimant in OP(MV) No.640 of 2007 on the file of Motor Accidents Claims Tribunal, Ottapalam is the appellant herein, challenging the quantum of compensation awarded by the Tribunal vide Award dated 07.06.2011.

The brief facts could be stated as follows:

On 03.03.2007 at about 7.45 p.m, while the appellant was riding a motorcycle through NH 47, KL-52-3445 truck driven by the 2nd  respondent in a rash and negligent manner, dashed against his motorcycle and he fell down and sustained severe injuries. He was taken to Modern Hospital, Kodungallur and from there to Aswini Hospital, Thrissur, and later referred to Medical College Hospital, Mulamkunnathukavu, for better treatment. He  had  suffered  disability  of  13%. But,  the Tribunal took only 4% disability. Though he claimed compensation of Rs.3,05,000/-, the Tribunal awarded only Rs.1,77, 260/-.

The 1st respondent was the owner of the offending truck, 2nd respondent was its driver and 3rd respondent was its insurer.

Only the 3rd respondent-insurer contested the case, disputing the licence and badge of the driver of the truck. The accident, injuries and the policy were not in dispute.

Before the Tribunal, PW1 was examined and Exts.A1 to A7 were marked from the side of the appellant. No oral or documentary evidence was adduced from the side of the contesting respondent. Ext.X1 was marked as witness exhibit.

Now let us see whether there is any illegality or impropriety in the compensation awarded by the Tribunal, warranting interference.

According to the appellant, he was a 26 year old driver earning monthly income of Rs.5,000/-. But, the Tribunal fixed his notional income as Rs.3,500/- without any basis. No documents are there to prove the job or income of the appellant. Even going by the decision Ramchandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited (AIR 2011 SC 2951), in the year 2007, notional income of Rs.6,000/- could have been fixed as he was only a 26 year old man. But, his claim was only Rs.5,000/-. So, his notional income can be fixed @ Rs.5,000/-, as claimed by him.

The appellant suffered serious head injury and fracture of femur, tibia, fibula etc. in the accident, as evident from Ext.A3 wound certificate. The Tribunal assessed loss of earning only for three months. Since he had suffered severe head injury and fracture of femur, tibia and fibula, at least for six months, he might not have been able to do any job. So, towards loss of earning, he is eligible to get Rs.30,000/-(5000x6). He was already given Rs.10,500/- towards loss of earning. So, he is eligible to get the balance Rs.19,500/-.

Towards bystander expenses, though the claim of the appellant was Rs.6,000/-, he was awarded only Rs.5,600/-. He was hospitalised for 28 days. Considering that fact, the amount claimed i.e Rs.6,000/- can be awarded in full. So, he is eligible to get enhancement of Rs.400/- under the head 'bystander expenses'.

Towards pain and suffering, his claim was Rs.25,000/-, but the Tribunal awarded only Rs.20,000/-. Considering the nature of injuries he had suffered and period of hospitalisation, this Court is inclined to award Rs.5,000/-more under the head 'pain and suffering'.

Towards loss of amenities, he was awarded only Rs.10,000/-. Considering the head injury, fractures and also the consequential disability aspect, this Court is inclined to award Rs.5,000/- more under the head 'loss of amenities'.

Coming to the disability part, Ext.A6 disability certificate shows that, his whole body disability was assessed as 13%. The Doctor who issued Ext.A6 disability certificate was examined as PW1. The Tribunal took the permanent disability of the appellant as 4% only. Though Ext.A6 certificate was not issued by the Medical Board, considering the fact that he had suffered multiple fractures with head injury and the Doctor had certified 13% disability, this Court thinks it appropriate to take his disability as 10%. Since he was aged only 26, the multiplier applicable is 17. So, the compensation for 10% disability can be assessed as Rs.1,02,000/- (5000x12x17x10/100). He was already awarded Rs.28,560/- under the head 'permanent disability'. So, he is entitled to get the balance Rs.73,440/- for the 10% disability suffered by him.

The compensation awarded under all other heads seems to be just and reasonable and it needs no interference.

Head of claim

Amount awarded by the Tribunal

Amount awarded in appeal

Difference to be drawn as enhanced compensation

Loss of earning

Rs.10,500/-

Rs.30,000/-

Rs.19,500/-

Bystander expenses

Rs.5,600/-

Rs.6,000/-

Rs.400/-

Pain and suffering

Rs.20,000/-

Rs.25,000/-

Rs.5,000/-

Loss of amenities

Rs.10,000/-

Rs.15,000/-

Rs.5,000/-

Compensation for disability

Rs.28,560/-

Rs.1,02,000/-

Rs.73,440/-

Total

Rs.74,660/-

Rs.1,78,000/-

Rs.1,03,340/-

In the result, the appellant is entitled to get enhanced compensation of Rs.1,03,340/-(19500+400+5000+ 5000+ 73440).

The 3rd respondent/insurer is directed to deposit the enhanced compensation in the Bank Account of the appellant with interest @ 7% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund.

Since the driving licence and badge of the 2nd respondent/driver was not produced by him, adverse inference was drawn, and the Tribunal permitted the Insurance Company to pay the compensation amount initially and to recover the same from respondents 1 and 2. In the appeal also, there was no appearance for respondents 1 and 2, and the recovery ordered by the Tribunal was not challenged by respondents 1 and 2. Accordingly, the 3rd respondent/insurer can recover the amount deposited by them, from respondents 1 and 2 and their assets.

The appeal is allowed accordingly. No order as to costs.