Anilkumar C.V vs The Divisional Manager on 29 April, 2015

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Kerala High Court

Anilkumar C.V vs The Divisional Manager on 29 April, 2015

The victim in a motor vehicle accident preferred this appeal dissatisfied with the quantum of compensation granted by the Tribunal as per the award in O.P.(M.V.) No.1813/2013. The appellant filed the above mentioned claim petition seeking compensation for the injuries sustained in the motor vehicle accident occurred on 16.4.2013. He was then travelling in an autorickshaw bearing registration No.KL-5/AA 6142. It met with an accident when the driver of the said vehicle lost his control and consequently it capsized. He sustained injuries and immediately he was taken to Caritas Hospital, Thellakom. He remained therein as an inpatient for a period of 6 days. The injuries resulted in permanent disability. In such circumstances, the claim petition was filed taking up a contention that he was working as a DTP operator in Global DTP Centre, Kottayam and was earning Rs.8,000/-. Alleging M.A.C.A.No.1368 of 2016 2 that the cause of the accident is the negligence from the part of the first respondent and therefore the 2nd respondent being the insured owner is vicariously liable and being the insurer of the said vehicle the 3rd respondent is liable to indemnify the second respondent the claim petition was filed. The Tribunal found that the accident occurred due to the negligence on the part of the 1st respondent and that the third respondent is liable to indemnify the 2nd respondent, and consequently, directed the third respondent viz., the respondent therein to deposit an amount of Rs.3,58,000/-, the amount awarded as per the impugned award, alongwith interest at the rate of 9% per annum form the date of petition till realisation.

2. We have heard the learned counsel on both sides. The main contention of the appellant is that the Tribunal fixed the monthly income so meagrely ignoring the fact that the accident occurred on 16.4.2013 and that he was then aged only 26 years. It is the further submission that the Tribunal also erred in assessing the permanent disability M.A.C.A.No.1368 of 2016 3 ignoring Ext.X1 disability certificate issued by a Medical Board. That apart it is contended that the Tribunal granted only meagre amount towards loss of marriage prospects. In such circumstances, the learned counsel seeks for enhancement of compensation.

3. We have carefully gone through the impugned judgement in the light of the submissions made by the learned counsel for the appellant. True that if the adequacy of the compensation is taken headwise it may appear that under certain heads the Tribunal has not granted adequate compensation. But certainly that cannot be a yardstick to consider the question whether the award passed by a Claims Tribunal invites interference. According to us what is to be looked into is whether the total compensation granted ultimately as per the award is a just compensation commensurates with the injuries sustained. Bearing in mind the said aspects we will consider the contention of the learned counsel that the Tribunal granted compensation under different heads so meagrely.

M.A.C.A.No.1368 of 2016 4

4. True that the appellant claimed that he was working as a DTP operator in Global DTP Centre, Kottayam and was earning Rs.8,000/- per month. To substantiate the said contention the appellant has produced Ext.A8 before the Tribunal. Obviously, it is a certificate issued by a private firm and it was not proved by examining the employer. The learned counsel submitted that even if Ext.A8 cannot be acted upon the monthly income fixed by the Tribunal invites interference, taking into account the year of the accident and the age of the appellant at that time. But, according to us, before making such a consideration as to the adequacy of monthly income fixed by the Tribunal the question to be considered is whether the compensation granted under the impugned award is a just compensation commensurating with the injuries sustained by the appellant in the accident. Towards permanent disability the Tribunal granted an amount of Rs.1,83,600/-. For that purpose the monthly income was taken as Rs.6,000/-. Ext.X1 is a disability certificate dated 6.8.2014 issued by the Medical Board. The M.A.C.A.No.1368 of 2016 5 nature of the injuries sustained by the appellant is revealed from Ext.A5 wound certificate and Ext.A4 discharge summary. They would go to show that she sustained the following injuries:

1) fracture ulna

2) tenderness and swelling in the right forearm 3 comminuted fracture 1/3rd ulna

4) fracture right elbow joint

5) lacerated wound right big toe

6) loss of skin from right palm

7) surgical wound 10 cm x 2 cm on the operation site and

8) comminuted fracture radial head.

5. Copy of Ext.X1 was made available for our perusal by the learned counsel for the appellant. It would reveal that the Medical Board found disability under three heads and after assessing such percentage of disability separately that too sustained on a particular limb the Medical Board assessed the disability as 20.27%. The Tribunal declined to accept the percentage of disability assessed under Ext.X1 and took the percentage as 15. On perusing copy of Ext.X1, we are of the view that the assessment of disability by the Tribunal as 15% calls for no interference. The disability cannot be said to be one which M.A.C.A.No.1368 of 2016 6 would affect his earning capacity. Towards pain and sufferings undergone by the appellant due to the injuries mentioned hereinbefore the Tribunal granted an amount of Rs.30,000/- and towards compensation for loss of amenities also the Tribunal granted an amount of Rs.30,000/-. Virtually the Tribunal took the period of convalescence as six months and granted an amount of compensation as Rs.36,000/- under the head 'loss of earnings'. We have already noted the nature of injuries as revealed from Exts.A4 and A5. In fact, the petitioner had to remain as an inpatient only for six days. Thus, a scanning of the schedule of compensation given in the impugned award would reveal that the Tribunal granted compensation under certain heads on higher side and at the same time granted compensation slightly on the lower side under certain other heads. As noticed hereinbefore the fact that under certain heads the Tribunal granted compensation on the lower side cannot be a ground for an appellate interference and in terms of the provision under Section 168 of the M.V. Act M.A.C.A.No.1368 of 2016 7 this court has to consider the question whether just compensation was granted to the appellant commensurate with the injuries sustained. In the light of the discussion as above especially taking into account the nature of the injuries revealed from Exts.A4 and A5 the medical expenses granted is Rs.58,971/- and this means about Rs.3 lakhs was granted as compensation to the applicant over and above the reimbursement towards medical expenses, we are of the considered view that the Tribunal has granted just compensation commensurates with the injuries sustained. When that be the position, the impugned judgement cannot be said to be one which invites appellate interference. In such circumstances, this appeal is liable to fail. Accordingly, this appeal is dismissed.

There will be no order as to costs.

Sd/-

C.T. RAVIKUMAR JUDGE Sd/-

K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE shg/

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Kerala High Court