RAVEENDRAN v. NADARAJAN

NADARAJAN S/O.AMBROSE,VII/485,ANEESH BHAVAN,SAMUDHAYAPATTU,MURIYANKARA,PARASSALA VILLAGE, THIRUVANANTHAPURAM 695 001. THE ORIENTAL INSURANCE CO.LTD. THIRD PARTY CELL, NORTH RAILWAY STATION ROAD, ERNAKULAM 682 018. UNITED INDIA INSURANCE CO.LTD. THIRD PARTY CELL,ERNAKULAM 682 011. BY ADVS. SRI.P.JACOB MATHEW SRI.N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. No.8/2012 : 2 : JUDGMENT The appellant was the petitioner in OP(MV) No.677/2006 on the files of the Motor Accident Claims Tribunal, Ernakulam.

2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 03.12.2004. The accident occurred when the motorcycle ridden by the appellant was hit by a lorry bearing registration No.KL-01 N 5583 owned and driven by the 1st respondent and insured with the 2nd respondent. The 3rd respondent was the insurer of the two wheeler which was being driven by the appellant. According to him, he was working as a Craftsman (Mechanics) in FACT (M/s Fertilizers and Chemicals Travancore Ltd) and his monthly income was claimed to be Rs.15,000/-. According to him, he sustained serious injuries in the accident and he was aged 49 years. The claim petition was submitted in such circumstances.

3. The 2nd respondent/insurance company filed a written statement admitting the insurance coverage for the lorry, but they disputed the liability on various grounds. The negligence as well as M.A.C.A. No.8/2012 : 3 : the quantum of compensation were also disputed by them. The 3 rd respondent filed a written statement admitting the coverage of policy for the motorcycle but they also disputed the liability on various grounds.

4. The evidence in this case consists of Exts.A1 to A11 from the side of the appellants. No evidence was adduced from the side of the respondents.

5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the 1 st respondent, the driver cum owner of the lorry, and being the insurer of the vehicle, the 2nd respondent were held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,02,915/- and the 2nd respondent was directed to deposit the said amount along with interest at the rate of 8% per annum from

28.09.2010 onwards. This appeal is submitted by the appellant in such circumstances seeking enhancement.

6. Heard Sri. Philip T Varghese, the learned counsel appearing for the appellant, Sri. P Jacob Mathew the learned counsel appearing for the 2nd respondent and Sri. N.S. Mohammed Usman, the learned counsel appearing for the 3rd respondent. M.A.C.A. No.8/2012 : 4 :

7. The only dispute in this case relates to the quantum of compensation. The learned counsel for the appellant points out that, the monthly income claimed by the appellant was Rs.15,000/-, but the tribunal took the same as only Rs.3,500/-. According to him, the same was grossly inadequate. However, on going through the materials placed on record, it is evident that, even though he was working as a Craftsman (Mechanics) in FACT with a monthly income of Rs.15,000/-, he obtained voluntary retirement from the FACT w.e.f. 28.02.2004, whereas the accident occurred on

03.12.2004. Besides the same, Ext.A11 was produced by the appellant to show that he was appointed as machine shop in charge in M/s.Premco Company with a monthly salary of Rs.9,000/-. As per Ext.A11, he was suggested to join duty on

08.11.2004. However, there is absolutely no record produced to show that he joined duty on 08.11.2004 and the salary slip concerning the aforesaid employment was also not produced. It was in that circumstances, the tribunal took the monthly income as Rs.3,500/- in the absence of any other evidence. However, even in the absence of any evidence, the monthly income of Rs.3,500/- appears to be on the lower side. Evidently, he was working as a M.A.C.A. No.8/2012 : 5 : Craftsman (Mechanics) in FACT until he obtained voluntary retirement some months before the accident. It shows that he was having some qualifications as well. Therefore, a slightly higher monthly income ought to have been taken by the tribunal. In such circumstances, I deem it appropriate to take the monthly income as Rs.5000/- in this case.

8. Even though he sustained injuries in the accident, no documents are produced to show that he sustained any physical disability due to such injuries. No disability certificate has been produced before the tribunal. Therefore, the relevance of the monthly income is only for determining the compensation under the head of loss of earnings. It is to be noted that, even though no amount was claimed under this head, the tribunal awarded compensation for two months. Since I have already revised the monthly income to Rs.5,000/-, a further sum of Rs.3,000/- can be granted under this head.

9. The other head which requires reconsideration is pain and suffering. It is discernible from the award that the appellant sustained the following injuries: “Intertrochanteric fracture right, fracture calcaneum left extraarticular in addition of bleeding right ear, nostrils, M.A.C.A. No.8/2012 : 6 : multiple abrasion face and extremities, lacerated wound left side of mandible, left ankle, tenderness right hip with fracture upper end of right humerus.” The said injuries are evident from Exts.A4 and A6. Consequent to the injuries, he was forced to avail inpatient treatment for a period of 15 days.

10. According to the learned counsel for the appellant, even after treatment, he was undergoing treatment as an outpatient, and he was under complete bed rest for a period of six months. However, no evidence was adduced to substantiate the same. Despite the above, the nature of injuries as discernible from Ext.A4 and A5 would clearly indicate the probability of a prolonged treatment and therefore, the same has to be taken into account while considering the compensation for pain and suffering. Thus, a further sum of Rs.20,000/- is awarded under the head of pain and suffering. The amount awarded by the tribunal towards loss of amenities, which was Rs.10,000/-, also appears to be on the lower side. Considering the nature of the injuries as referred to above and the impact of the same, I deem it appropriate to grant a further sum of Rs.15,000/- under the said head. Thus, the total additional compensation is determined as Rs.38,000/- [3000+20000+15000]. M.A.C.A. No.8/2012 : 7 :

11. In the light of the aforesaid observations and findings, this appeal is allowed, and the award dated 31.01.2011 in O.P. (M.V.) No.677/2006 passed by the Motor Accident Claims Tribunal, Ernakulam is hereby modified by granting an additional compensation of Rs.38,000/- (Rupees thirty-eight thousand only) and the said amount shall be deposited by the 2nd respondent Insurance Company with interest at the rate as ordered by the tribunal from 28.09.2010 onwards till realisation. However, it is clarified that, as the appeal was filed with a petition to condone the delay of 209 days, the appellant shall not be entitled to interest on the additional amount for the said period of delay. It is further ordered that the claimant shall furnish the details of the PAN card, Aadhar card and bank details to enable the 2 nd respondent to make the deposit as ordered above within a 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 said amount before the tribunal. ncd/ Sd/- ZIYAD RAHMAN A.A. JUDGE