The Commissioner of Income Tax, vs. M/s Pitti Laminations Ltd.,

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 11TH DAY OF OCTOBER 2021 / 19TH ASWINA, 1943 MACA NO. 821 OF 2012 AGAINST THE AWARD DATED 17.02.2013 IN OP(MV)NO.2230/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR APPELLANT/THIRD RESPONDENT: NEW INDIA ASSURANCE COMPANY LTD, KOLLANNUR BUILDING, PALACE ROAD, THRISSUR. BY ADV SRI.RAJAN P.KALIYATH RESPONDENT/CLAIMANT: SUKUMARAN.C.K., S/O. SUKUMARAN, CHERKKARA HOUSE, GANESAMANGALAM, VATANAPPILLY, THRISSUR DISTRICT, NOW RESIDING AT GARDEN APARTMENTS 21/OLD NO.10 PYCROFTS GARDEN ROAD, CHENNAI – 600006. BY ADV SRI.P.V.CHANDRA MOHAN THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2021, ALONG WITH CO.95/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

M.A.C.A.No.821/2012& C.O.No.95/2012 -:2:- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 11TH DAY OF OCTOBER 2021 / 19TH ASWINA, 1943 CO NO. 95 OF 2012 AGAINST THE JUDGMENT IN MACA 821/2012 OF HIGH COURT OF KERALA, ERNAKULAM CROSS OBJECTOR/ RESPONDENT: C.K.SUKUMARAN, S/O.KUMARAN CHERKKARA HOUSE, GANESAMANGALAM, VATANAPPILLY, THRISSUR DISTRICT, NOW RESIDING AT GARDEN APARTMENTS 21(OLD NO 10) PYCROFTS GARDEN ROAD, CHENNAI 600006 BY ADV SRI.P.V.CHANDRA MOHAN RESPONDENT/APPELLANT: NEW INDIA ASSURANCE CO.LTD., KOLLANNUR BUILDING, PALACE ROAD, THRISSUR BY ADV SRI.RAJAN P.KALIYATH THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2021, ALONG WITH MACA.821/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

M.A.C.A.No.821/2012& C.O.No.95/2012 -:3:- Dated this the 11th day of October,2021 C O M M O N J U D G M E N T As the appeal and cross-objection arise out of the same award in O.P.(MV)No.2230/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 11.03.2001. He contended that, while he was travelling as a passenger in an auto rickshaw bearing registration No.KL-8/2064 through the Ayyanthole Civil Line Quarters Road, when the auto rickshaw reached the road junction, a car bearing registration No.KL-8/TC 14/2000(car) came from the south-north direction and hit the auto

M.A.C.A.No.821/2012& C.O.No.95/2012 -:4:- rickshaw. Due to the impact, the auto rickshaw went off the road and hit on the compound wall. The petitioner sustained serious injuries. The car was driven by the second respondent, owned by the first respondent and insured with the third respondent. The auto rickshaw was insured with the fifth respondent, owned and driven by the fourth respondent. The petitioner was treated as an inpatient in Mother Hospital, Olari, Thrissur, for the period from 11.03.2004 to 20.03.2004. The petitioner was aged 65 years on the date of accident. He was doing marketing of Form Rubber products and Consultancy service and earning a monthly income of Rs.25,000/-. The petitioner claimed compensation from the respondents at Rs.5,75,000/-; which was limited to Rs.2,00,000/-. 3. The two other fellow passengers in the auto rickshaw also filed O.P.(MV)Nos.2248/2004 & 3185/2004 before the same Tribunal.

M.A.C.A.No.821/2012& C.O.No.95/2012 -:5:- 4. The respondents 1, 2 and 4 did not contest the proceedings and were set ex parte. 5. The third respondent had filed a written statement admitting that the car had a valid insurance policy. However, it was contended that the accident occurred due to the negligence of the auto rickshaw. 6. The fifth respondent had filed a written statement, inter alia, contending that the auto rickshaw had valid insurance coverage; but the fourth respondent did not hold a valid driving licence. Hence, the fifth respondent was not liable to indemnify the fourth respondent. 7. The Tribunal consolidated and jointly tried all the claim petitions. The petitioner in the captioned claim petition was examined as PW1 and two Doctors were examined as PWs2 and 3 and Exts.A1 to A24 series were marked in evidence. The respondents did not let in any evidence.

M.A.C.A.No.821/2012& C.O.No.95/2012 -:6:- 8. The Tribunal, after analysing the pleadings and materials on record, by a common award allowed the captioned claim petition, by permitting the petitioner to recover from the third respondent an amount of Rs.1,99,000/- with interest and cost. 9. Aggrieved by the impugned award, the third respondent/insurer has filed M.A.C.A.No.821/2012 and dissatisfied with the quantum of compensation, the petitioner has filed C.O.No.95/2012. 10. Heard; Sri. Rajan P.Kaliyath, the learned counsel

appearing

for

the

appellant/third respondent-insurer and Sri. P.V. Chandra Mohan, the learned counsel appearing for the respondent/cross objector/claimant. 11. The core question that emerges for consideration in the appeal and cross-objection is whether the quantum of compensation awarded by the Tribunal is reasonable and just?

M.A.C.A.No.821/2012& C.O.No.95/2012 -:7:- Liability and negligence:

M.A.C.A.No.821/2012& C.O.No.95/2012 -:8:- financial year 2003-04/assessment year 2004-05 before the Tribunal. 14. On a perusal of Ext.A9, it is seen that the petitioner had an annual income of Rs.43,322/- from his property, an annual income of Rs.89,520/- from his profession and an annual agricultural income of Rs.1,29,720/-. 15. The Tribunal, after considering the income derived by the petitioner from the above three sources, principally took the income of the petitioner from his business at Rs.10,000/- per month to fix the compensation for 'loss due to disability'. 16. I hold that the fixation of income of the petitioner by the Tribunal to be reasonable and justifiable. I say this because, the petitioner has not proved that due to the injury sustained in the accident, his income from his property or agricultural activities has depreciated subsequent the accident. He has not

M.A.C.A.No.821/2012& C.O.No.95/2012 -:9:- produced any materials to prove this aspect. Therefore, taking into account the petitioner's own assertion in the claim petition that he was a self employed person doing marketing of Form Rubber products and Consultancy service, only the income from his business at Rs.89,520/- per year can be taken for the purpose of calculating compensation for loss due to disability. Hence, I confirm the finding of the Tribunal fixing the monthly income of the petitioner at Rs.10,000/-. Loss due to disability: 17. The petitioner has averred in the claim petition that he had sustained a fracture of both clavicles, fracture head of fibula left and intra articular fracture medial tibial condyle left. In order to prove the said aspect, the petitioner produced Ext.A7 treatment records. In the said document also, it is substantiated that the petitioner had a comminuted

M.A.C.A.No.821/2012& C.O.No.95/2012 -:10:- fracture of the lateral 3rd of the clavicle with mal union, abnormal mobility and movements of the left shoulder are not free. The petitioner also produced Ext.A8 permanent disability certificate, wherein it certified that the petitioner has a whole body permanent disability of 30%. It is also certified that the petitioner's right shoulder has arranged of movement loss of 20% average and his left shoulder non union of the left clavicle with painful of all movements ROM loss is 40%. To prove Ext.A8, the petitioner examined PW2. PW2 was cross-examined by length by the third respondent-insurer. The Doctor withstood the cross-examination and categorically deposed that the petitioner has sustained a non union. 18. The Tribunal after considering Ext.A8 and the oral testimony of PW2 arrivedat a conclusion that there was no non union, but only mal union. On what basis the Tribunal has arrived at the said finding is not

M.A.C.A.No.821/2012& C.O.No.95/2012 -:11:- discernible because PW2 who corroborated Ext.A8 has clearly stated that the petitioner has a left shoulder non union of left clavicle with painful restrictions of movements and also as a right shoulder range of movement loss to the extent of 20%. The above injuries also stand corroborated by Ext.A7 treatment records. 19. In Raj Kumar v. Ajay Kumar [2011(1)KLT 620(SC)] the Hon'ble Supreme Court has laid down the law by stating that what needs to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured/victim. In other words, the principle factor to be looked into is the activities that a claimant can continue with the disability and the loss of income and avocation due to the disability. 20. Taking into account that the petitioner was aged 65 years at the time of the accident, he was doing marketing of Form Rubber products and Consultancy

M.A.C.A.No.821/2012& C.O.No.95/2012 -:12:- service and that there was a mal union of the left clavicle with a loss of movement of the right clavicle, which the Doctor has certified in Ext.A8 at the rate of 12% and 6%, respectively, with loss of muscle power due to the mal union at 3%, I hold that the petitioner has a 'functional disability' of 21% instead of 20% fixed by the Tribunal. Multiplier 21. Admittedly, the petitioner was born 04.05.1938. The accident occurred on 11.03.2004. Therefore, the petitioner had crossed the age of 65 on the date of accident. 22. In the light of the law laid down in Sarala Varma and others v. Delhi Transport Corporation and others [(2010) 2 KLT 802 (SC)], the relevant multiplier to be adopted is '5'. 23. On a consideration of the above-mentioned factors namely; the monthly income of the petitioner at

M.A.C.A.No.821/2012& C.O.No.95/2012 -:13:- Rs.10,000/-, his functional disability at 21%, the multiplier at '5', I fix the compensation for loss due to disability at Rs.1,26,000/- instead of Rs.1,20,000/- fixed by the Tribunal. Loss of earnings: 24. The Tribunal has held that the petitioner was indisposed for a period of four months. Taking note of the injuries in Ext.A7 read with Ext.A8, I find that the period of four months fixed by the Tribunal is reasonable and just. Therefore, I confirm the 'loss of earnings' at Rs.25,000/-. Extra nourishment: 25. Even though the petitioner had claimed an amount of Rs.2,500/- towards 'extra nourishment' and Rs.500/- towards 'damage to clothing', the Tribunal did not award any amount under the said heads. 26. Considering the fact that the petitioner was hospitalised for a period of 10 days and was indisposed

M.A.C.A.No.821/2012& C.O.No.95/2012 -:14:- for a period of four months, I award an amount of Rs.1,500/- towards 'extra nourishment' and Rs.500/- towards 'damage to clothing'. Loss of amenities: 27. The petitioner had claimed an amount of Rs.20,000/- as compensation for 'loss of amenities'. The Tribunal awarded an amount of Rs.8,000/-, which according to me, is on the lower side. As I have already fixed the 'functional disability' of the petitioner at 21% and the fact that he was hospitalised for a period of 10 days and indisposed for a period of four months, I hold that he is entitled for enhancement of compensation under the said head by a further amount of Rs.12,000/- i.e., Rs.20,000/-. 28. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 29. On an overall re-appreciation of the

M.A.C.A.No.821/2012& C.O.No.95/2012 -:15:- pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the cross-objector /petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. Sl.No Head of claim Amount awarded by the Tribunal (in rupees) Amounts modified and recalculated by this Court 1 Loss of earnings 40,000 40,000 2 Transport expenses 4,000 4,000 3 Damage

to clothing Nil 500 4 Medical expenses 10,256 10,256 5 Bystander expenses 1,500 1,500 6 Extra nourishment Nil 1,500 7 Pain and sufferings 15,000 15,000 8 Loss of amenities 8,000 20,000 9 Loss due to disability 1,20,000 1,26,000 TOTAL 1,98,756 2,18,756 rounded to Rs. 1,99,000 2,18,800

M.A.C.A.No.821/2012& C.O.No.95/2012 -:16:- In the result, M.A.C.A.No.821/2012 is dismissed and C.O.No.95/2012 is allowed, by enhancing the compensation by a further amount of Rs.20,000/- with interest at the rate of 8% per annum from the date of petition till the date of realisation and a cost of Rs.4,000/-. The respondent in the Cross-objection/ third respondent-insurer is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the Cross-objector/petitioner, in accordance with law. All pending interlocutory applications will stand closed. Sd/- C.S.DIAS,JUDGE DST/11.10.21 //True copy/ P.A.To Judge