Shaji Francis vs Divisional Manager
2021 Latest Caselaw 23098 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943
                        MACA NO. 2064 OF 2015
  AGAINST THE AWARD IN OPMV 507/2013 OF MOTOR ACCIDENT CLAIMS
                         TRIBUNAL, KOTTAYAM
APPELLANT/PETITIONER:

          SHAJI FRANCIS
          S/O.FRANCIS, AGED 44 YEARS
          NARIKUNNEL HOUSE, NEAR ST. GEORGE HIGH SCHOOL,
          KAIPUZHA PO, NEENDOOR,
          KOTTAYAM DISTRICT REPRESENTED BY HIS WIFE AS NEXT
          FRIEND ALICE, W/O.SHAJI FRANCIS, AGED 39 YEARS,
          NARIKUNNEL HOUSE, NEAR ST. GEORGE HIGH SCHOOL,
          KAIPUZHA PO, NEENDOOR,
          KOTTAYAM DISTRICT
          BY ADVS.
          SRI P.M.JOSHI
          KUM.ELIZABETH KOSHY
          SMT.SIJI K.PAUL


RESPONDENT/RESPONDENT:

          THE DIVISIONAL MANAGER
          NEW INDIA ASSURANCE COMPANY LTD.,
          KOTTAYAM BRANCH, KOTTAYAM - I
          BY ADV SRI M.JACOB MURICKAN


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 11.10.2021, THE COURT ON             24.11.2021 DELIVERED
THE FOLLOWING:
 M.A.C.A. No. 2064 of 2015
                                        2




                              T.R. RAVI, J.
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                       M.A.C.A. No. 2064 of 2015
                --------------------------------------------
               Dated this the 24th day of November, 2021

                                  JUDGMENT

On 25.02.2013, while the appellant was riding his scooter, he

was hit by a car driven in a rash and negligent manner. The

appellant suffered severe head injury, diffuse axonal injury, fracture

(R) zygoma, contusion right forearm, right pinna lacerated and

sutured, right preorbital edema, swelling over right forearm,

extensive abrasions over right side of face and limbs. The

appellant had to undergo multiple surgeries and he has become

paraplegic and is bedridden. He was treated as an inpatient for 78

days. An amount of Rs.4,27,084/- was spent towards medical

expenses alone. The Medical Board attached to the Medical College

Hospital, Kottayam assessed his permanent disability as 87%.

According to the appellant, he was working as a Captain in Hotel

Ambady, Thekkady and was getting a monthly income of

Rs.12,000/- at the time of accident. The Tribunal awarded a sum

of Rs.23,95,000/- as against a claim of Rs.69,01,000/- limited to

35 lakhs. Aggrieved by the award, the appellant has preferred this M.A.C.A. No. 2064 of 2015

appeal, seeking enhancement of the compensation.

2. Heard.

3. The primary contention of the appellant is that the

Tribunal went wrong in adopting a notional income of Rs.7,500/-.

It is submitted that going by the dictum in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co.Ltd.,

reported in [AIR 2011 SC 2951], a coolie would have been

earning Rs.9,000/- in the year 2013. The Apex Court in Syed

Sadique & Ors. v. Divisional Manager, United India

Insurance Company Ltd. reported in [2014 (2) SCC 735]

considered the case of a vegetable vendor who was assessed a

functional disability of 85% and held that he would have been

earning Rs.6,500/- per month and added an increment of 50%

towards future prospects. The learned counsel for the appellant

also pointed out that in the judgment in MACA No.2101/2015 dated

27.9.2018, this Court had considered the case of a mason who met

with an accident in 2013 and fixed the monthly income as

Rs.10,000/- and added 25% towards future prospects. The

counsel for the appellant submits that the amount of Rs.7,500/-

applied by the Tribunal is unjustified. It is also submitted that the

amount awarded towards loss of earning has to be modified in M.A.C.A. No. 2064 of 2015

accordance with the income to be applied. The counsel also

contends that the appellant is entitled to increased compensation

under the head future bystander expenses and pain and sufferings.

Reference is made to the decision in Kajal V. Jagdish Chand

reported in [2020 (1) KLT 743], to contend that it is a case

where compensation has to be awarded for bystander throughout

life following the multiplier method.

4. Having heard the learned counsel on either side, I am of

the view that the appellant is entitled to enhanced compensation.

In the light of the judgments quoted above, a sum of Rs.10,000/-

can be taken as the monthly income and having regard to his age

and occupation, 25% of the income is to be added as future

prospects. The income for the purpose of calculating the

permanent disability would hence be Rs.12,500/-. The Tribunal has

calculated the compensation for permanent disability treating the

functional disability as 100%. Thus the appellant will be entitled to

a sum of Rs.21,00,000/-(10000x125%x12x14) under the head

permanent disability. After reducing the amount of Rs.12,60,000/-

awarded by the Tribunal, the appellant will be entitled to an

additional compensation of Rs.8,40,000/- under the said head.

Regarding bystander's expenses, the Hon'ble Supreme Court has M.A.C.A. No. 2064 of 2015

held in Kajal (supra) that in cases of this nature, the bystander's

expenses should also be calculated by applying the multiplier

method. Considering an amount of Rs.7,500/- as payment for

bystander's expenses for a month, applying the multiplier method,

the appellant will be entitled to a sum of Rs.12,60,000/-

(7500x12x14) towards bystander's expenses. After deducting the

sum of Rs.1 lakh awarded by the Tribunal, the appellant will be

entitled to an additional sum of Rs.11,60,000/- under the said

head. The loss of earning for six months at the rate of Rs.10,000/-

per month will come to Rs.60,000/-. After deducting the sum of

Rs.45,000/- granted by the Tribunal, the appellant will be entitled

to an additional sum of Rs.15,000/- under the head loss of

earning. The amounts granted by the Tribunal under other heads

are reasonable and do not require any modification.

In the result, the appeal is allowed and the appellant is

awarded an enhanced compensation of ₹20,15,000/- (Rupees

Twenty Lakhs Fifteen Thousand only) with interest at the rate

of 9% per annum from the date of filing of the claim petition

(21.05.2013) till the date of realisation, with proportionate costs.

The respondent insurer shall deposit the additional compensation

granted in this appeal along with the interest and proportionate M.A.C.A. No. 2064 of 2015

costs, before the Tribunal within two months from the date of

receipt of a certified copy of this judgment, after deducting any

amount to which the appellant is liable towards balance court fee

and legal benefit fund. The disbursement of the compensation to

the appellants shall be in accordance with law.

Sd/-

T.R. RAVI JUDGE

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