Kerala High Court

Antony vs Shemeer on 27 November, 2021

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
SATURDAY, THE 27TH DAY OF NOVEMBER 2021/6TH AGRAHAYANA, 1943
                     MACA NO. 751 OF 2016
AGAINST THE AWARD DATED 27.10.2015 IN O.P.(MV) NO.860 OF
   2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR
APPELLANT:

           ANTONY
           S/O.PAPPY, PALAKKAPARAMBIL HOUSE, NEERKODE,
           ALANGAD VILLAGE, ALUVA TALUK.
           BY ADVS.
           SRI.A.N.SANTHOSH
           SMT.P.N.SINDHU


RESPONDENTS:

    1      SHEMEER
           S/O.MUHAMMED, MEPPIKKATTIL, 5,
           AMBUNADU,KIZHAKKAMBALAM P.O. - 683562.
    2      SHRIRAM GENERAL INSURANCE COMPANY LTD.
           10003, E8, RIICO, INDUSTRIAL AREA, SITAPURA,
           JAIPUR, RAJASTHAN -302 022.
           BY ADVS.
           SRI.MATHEWS JACOB (SR.)
           SRI.P.JACOB MATHEW


        THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR FINAL HEARING ON 20.11.2021, THE COURT ON 27.11.2021
DELIVERED THE FOLLOWING:
                                  2
M.A.C.A.No.751 of 2016

                    P.G. AJITHKUMAR, J.
   -----------------------------------------------------------
                   M.A.C.A.No. 751 of 2016
   -----------------------------------------------------------
        Dated this the 27th day of November, 2021

                          JUDGMENT

Appeal under Section 173 of the Motor Vehicles Act,

1988. The appellant was the petitioner in O.P.(MV) No.860 of

2011 on the file of the Motor Accidents Claims Tribunal,

Perumbavoor. The respondents in the appeal were

respondents 1 and 4 before the Tribunal.

2. The appellant had filed the claim petition under

Section 166 of the Act, claiming compensation on account of the

injuries that he sustained in an accident on 27.05.2011. On that

day at 8.45 a.m. the appellant was riding his motorcycle bearing

Reg.No.KL-07-AB-5196 along Perumbavoor-Aluva road from west

to east. When he reached Vazhakulam, the tipper lorry bearing

Reg.No.KL-07-Y-1951 came in the opposite direction and hit

against the appellant's motorcycle. As a result of driving of the

tipper lorry in a rash and negligent manner, the incident

occurred. The appellant sustained serious injuries in the incident.

The 1st respondent is the insured-owner of the tipper lorry.

M.A.C.A.No.751 of 2016

3. The appellant is a mason by profession and has

been earning a monthly income of Rs.8,000/-.

4. The 2nd respondent had filed a written statement in

the claim petition refuting the allegations. The 2 nd respondent

also disputed the age, income and occupation of the appellant

in the claim petition. However, the 2 nd respondent admitted

that the vehicle had a valid insurance coverage.

5. The evidence in the case consists of oral testimony

of PW1, the appellant and documentary evidence, Exts.A1 to

A10, B1 and C1.

6. The Tribunal, after analysing the pleadings and

materials on record, by its award dated 27.10.2015, allowed

the claim petition in part, by permitting the appellant to

recover from the 2nd respondent an amount of Rs.5,43,836/-,

with interest and costs.

7. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the appellant is in appeal.

8. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the 2 nd

respondent.

M.A.C.A.No.751 of 2016

9. The sole question that arises for consideration in

this appeal is whether the quantum of compensation awarded

by the Tribunal is just and reasonable.

10. The learned counsel for the appellant contended

that the Tribunal went wrong in fixing the monthly income of

the appellant, assessing the percentage of disability and

quantifying the compensation under the head 'loss of

amenities' and 'pain and suffering'. The learned counsel also

submitted that compensation for loss of future prospects at

the rate of at least 40% should have been given. The learned

counsel placing reliance on the decision in Mukhopandhaya

v. Gopala Gowda [AIR 2014 SC 1052] and Erudhaya

Priya v. State Express Transport Corporation Ltd. [2020

(4) KLT 730 (SC)] and an unreported decision of this Court

in MACA No.1860 of 2015 (Manager, Universal Sompo

General Insurance Co.Ltd. v. Suja George & others),

contended that compensation for future prospects at the rate

of at least 40% should have been given.

11. It is true that in MACA No.1860 of 2015 this Court

approved the award of the Tribunal ordering compensation for

M.A.C.A.No.751 of 2016

loss of future prospects at the rate of 30% of the notional

income. In the peculiar fact situation of that case only the

court did not upset the award of the learned Tribunal. In a

totally different fact settings of this case, the said decision

cannot be followed as a precedent.

12. Mukhopandhaya v. Gopala Gowda (supra) is a

case where the claimant sustained serious injuries namely

amputation of lower arm. In Erudhaya Priya (supra) the

claimant sustained disability of 31.1% of the whole body. Only

on taking into account the serious nature of the injury

sustained by the respective claimants and their total inability

to pursue any serious avocation in future, the Apex Court held

that the respective claimants were entitled to get

compensation towards future prospects. So those decisions

cannot also be taken as a guideline for deciding compensation

as regards future prospects in this case where the physical

disability of the appellant was assessed as 22% by the

Medical Board.

13. The Tribunal has fixed Rs.5,000/- as the monthly

income of the appellant. The learned counsel appearing for

M.A.C.A.No.751 of 2016

the appellant contended that in the light of the principles laid

down in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [(2011) 13 SCC

236] and as explained the principle in Gopinathan A. and

others v. Afzal Basha and another [2020 3 KHC 666],

the Tribunal ought to have fixed the notional monthly income

as Rs.8,000/-. Going by the principle in Ramachandrappa's

case and Gopinathan A.'s case, the notional income of the

appellant should be fixed at Rs.8,000/-, having the accident

occurred in 2011.

14. The appellant sustained soft tissue loss over distal

arm cubital forsa and proximal 3rd of forearm, fracture shaft of

humerus, median nerve avulsion injury at cubital forsa with

partial nerve injury and flexor tendon origin was erased

partially from the bone. Rs.50,000/- was awarded by the

Tribunal as compensation for 'pain and suffering'. In the

nature of the injuries, in my view, the compensation for 'pain

and sufferings' need not have any enhancement.

15. Nature of injuries were such that the appellant

must have thrived hard to follow his ordinary pursuits in life.

M.A.C.A.No.751 of 2016

It should have continued for a long period. Taking that into

account, the compensation for loss of amenities is refixed as

Rs.40,000/-, an enhancement of Rs.20,000/-.

16. The learned counsel appearing for the appellant

contended that the percentage of disability should have been

fixed at more than 25%. The learned Tribunal after

considering Ext.C1, the certificate issued by the medical

board, as which the physical disability was assessed as 22%,

and examining PW1, arrived at a conclusion that the

functional disability of the claimant was 25%. I do not find

any reason to interfere with that finding.

17. In view of what are stated above, the

compensation quantified by the learned Tribunal requires re-

fixation as follows:-

Sl.             Head of claim                  Amount              Enhanced
No            Compensation for               awarded by          compensation
                                             the Tribunal
1     Loss of earnings                                60,000            36,000
                                                     (5000x12)           (8000-
                                                                  5000=3000x12)

2     Transport to hospital                           10,000                   -
3     Extra nourishment                                1,500                   -
4     Damage to clothes                                1,000                   -

M.A.C.A.No.751 of 2016

5      Medical expenses                     1,15,586                 -
6      Pain and suffering                    50,000                  -
7      Loss of amenities                     20,000           20,000
8      Permanent disability                 2,55,000        1,53,000
                                                       (8000-5000=3000
                                                          x12x17x 25%)

9      Attendance charge                      5,750                  -
10 Future treatment                                -                 -
11 Disfiguration                             25,000                  -
       Total                                5,43,836        2,09,000

18. With respect to other heads of compensation, I find

that the Tribunal has awarded reasonable and just

compensation.

In the result, the appeal is allowed in part, by

enhancing the compensation by an amount of Rs.2,09,000/-

with interest at the rate of 7.5% per annum on the

enhanced amount, from the date of petition till the date of

deposit, and a costs of Rs.4,000/-. The 2nd respondent is

ordered to make payment of the enhanced compensation

with interest and costs through the Tribunal within sixty

days from the date of receipt of a certified copy of the

judgment. The Tribunal shall see that the amount of