Kerala High Court

The Oriental Insurance Co.Ltd vs Subhash T.V on 11 January, 2022

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                    THE HONOURABLE MR.JUSTICE C.S.DIAS
         TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
                           MACA NO. 1220 OF 2012
  AGAINST THE AWARD DATED 28.04.2012 IN OPMV 1756/2004 OF THE MOTOR
                    ACCIDENT CLAIMS TRIBUNAL ,THRISSUR
APPELLANT/PETITIONER:

              SUBASH T.V., AGED 46 YEARS
              S/O T.K. VASU, THAZHATHU HOUSE, KANIMANGALAM P.O,
              THRISSUR DISTRICT 680027

              BY ADVS.
              SRI.P.G.SURESH
              SRI.C.V.MANUVILSAN
              SMT.K.VIDYA


RESPONDENTS/RESPONDENTS:

     1     MURALI
           AGED 51 YEARS

S/O VELAYUDHAN, VETTIYATTIL HOUSE, KUNDOOR LANE, THRISSUR TOWN P.O, THRISSUR VILLAGE, THRISSUR DISTRICT, 680020 (DRIVER)

2 SURESH S/O VELAYUDHAN, VETTIYATTIL HOUSE, KUNDOOR LANE, THRISSUR TOWN P.O, THRISSUR VILLAGE, THRISSUR DISTRICT 680020 (OWNER)

3 ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE, MAHESWARI BUILDINGS, M.G. ROAD, THRISSUR 680001, REPRESENTED BY ITS MANAGER

BY ADV SRI.GEORGE CHERIAN SR.

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2022, ALONG WITH MACA.2520/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA NOs. 1220 & 2520 OF 2012

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943 MACA NO. 2520 OF 2012 AGAINST THE AWARD DATED 28.04.2012 IN OPMV 1756/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR APPELLANT/3RD RESPONDENT:

THE ORIENTAL INSURANCE CO.LTD THRISSUR REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.

BY ADV SRI.GEORGE CHERIAN (THIRUVALLA)

RESPONDENT/CLAIMANT:

SUBHASH T.V S/O. T.K. VASU, THAZHATHU HOUSE, KANIMANGALAM, THRISSUR-680027.

BY ADVS.

SRI.C.V.MANUVILSAN SRI.P.G.SURESH

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2022, ALONG WITH MACA.1220/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NOs. 1220 & 2520 OF 2012

Dated this the 11th day of January, 2022.

COMMON JUDGMENT

As these appeals arise out of the same award,

between the same parties and of the same Tribunal, 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 26.10.2003. It was his case

that, on the aforesaid date, while he was riding his

motorcycle bearing registration No.KL 8V 876 through

the Thirssur-Kanimangalam road, a car bearing

registration No. KEH 8145 (car), driven by the first

respondent in a negligent manner, hit the motorcycle of MACA NOs. 1220 & 2520 OF 2012

the petitioner. The petitioner sustained serious injuries

including an head injury, depressed fracture of the right

supra orbital rin, fracture of the right Zygoma and a

comminuted fracture upper 1/3rd of the Tibia and a

fracture of the upper end of the Fibula. He was treated

as an inpatient for a period of 63 days at the Elite

Mission Hospital, Thrissur. The petitioner was a

business franchise of a courier service and was earning a

monthly income of Rs.8000/- The car was owned by

the second respondent and insured with the third

respondent. Hence, the petitioner claimed a

compensation of Rs.7,73,000/- from the respondents,

which claim was limited to Rs.7,00,000/-.

3. The respondents 1 and 2 did not contest the

proceedings and were set exparte.

4. The third respondent had filed a written

statement admitting that the car had a valid insurance MACA NOs. 1220 & 2520 OF 2012

coverage. Nevertheless, the third respondent contended

that the accident occurred due to the negligence of the

appellant. The third respondent prayed for exoneration

of its liability.

5. The petitioner examined witnesses as PWs1 and

2 and marked Exhibits A1 to A13 (a) in evidence. The

respondents did not let in any evidence.

6. The Tribunal, after analysing the pleadings and

materials on record, allowed the claim petition in part,

by permitting the petitioner to recover from the third

respondent an amount of Rs.3,71,120/- with interest at

the rate of 8% per annum from the date of petition till

the date of realisation.

7. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner has filed MACA

No.1220/2012 and aggrieved by the quantum of

compensation awarded by the Tribunal, the third MACA NOs. 1220 & 2520 OF 2012

respondent/insurer has filed MACA No.2520/2012.

8. Heard; Sri.P.G. Suresh., the learned counsel

appearing for the petitioner and Smt. K.S.Santhi, the

learned counsel appearing for the third

respondent/insurer.

9. The common question that emerges for

consideration in the appeals is whether the quantum of

compensation awarded by the Tribunal is reasonable and

just?

Negligence and Liability

10. Exhibit A2 final report filed by the police

establishes that the accident occurred due to the

negligence of the first respondent. Indisputably, the

second respondent was the owner and the third

respondent was the insurer of the car. The respondents

have not let in any evidence to discredit Exhibit A2 final

report. Similarly, the third respondent has not proved MACA NOs. 1220 & 2520 OF 2012

that the second respondent had violated the insurance

policy conditions. Therefore, the third respondent is to

indemnify the liability of the second respondent arising

out of the accident.

Income

11. The petitioner had claimed that he was a

business man running a franchise of a courier service

concern and was earning a monthly income of Rs.8,000/-.

In order to substantiate the said pleading, he had

examined PW1, who issued Exhibit A10. In Exhibit A10,

the petitioner's income for the financial year 2003-2004

has been shown as Rs.3,80,569/-. The Tribunal, for the

reason that Exhibit A10 was issued by the District

Manager and not by the franchisee, one Seethalakshmi,

declined to accept the income certified in Exhibit A10.

12. On a re-appreciation of the material, I hold that

it was imperative for the petitioner to have got his MACA NOs. 1220 & 2520 OF 2012

income proved by the owner of the courier company that

too with authentic material. Moreover, it is seen that as

per Exhibit A10, the petitioner was earning annual

income of Rs.3,80,569/-. If that was the case, the

petitioner ought to be an income tax assessee and he

ought to have produced his income tax returns, as he

was alleged to have income above the exemption limit in

the financial year 2003-2004. Also, if the petitioner was

earning an annual income of Rs.3,80,569/-, he would

have certainly pleaded about the same in the claim

petition. Instead the petitioner has only stated that he

was earning a monthly income of Rs.8000/-. Accordingly,

the Tribunal has accepted the income of the petitioner at

Rs.8000/- as claimed in the claim petition. I do not find

any error or illegality in the fixation of the notional

income of the appellant at Rs.8000/- per month. Even

otherwise, de hors Exhibit A10 salary certificate, the MACA NOs. 1220 & 2520 OF 2012

Honourable Supreme Court has in Chameli Devi and

others v. Jivrail Mian and others [(2019) KHC 5352],

fixed the notional monthly income of a carpenter in the

year 2004 at Rs.5000/-, and in Chandra @ Chnada @

Chandraram v. Mukesh Kumar Yadav [2021 SCC

Online SC 850], fixed the notional monthly income of a

driver in the year 2004 at Rs.6000/-.

13. Taking into consideration the fact that the

accident occurred in the year 2003 and that the

petitioner was a franchise of a courier service, I accept

the finding of the Tribunal that the petitioner was

earning a monthly income of Rs.8000/-, and fix his

monthly income accordingly.

Disability

14. The petitioner had examined PW2, who had

issued Exhibit A9 disability certificate, to prove that the

petitioner has a permanent disability of 15%. However, MACA NOs. 1220 & 2520 OF 2012

the Tribunal, scaled down the disability to 12% without

any specific finding.

15. In Raj Kumar v. Ajay Kumar [2011 (1) KLT 620

SC], the Honourable Supreme Court has specifically held

that in a case of injury -claim, what needs to be looked

into is the functional disability of the injured/claimant. It

is also observed that, if the Tribunal is dissatisfied with

the disability certificate produced before it, the

Tribunal shall refer the injured-claimant to a duly

constituted Medical board.

16. In the instant case, after accepting Exhibit A9

disability certificate, that too without any objection or

protest from the respondents, which was proved through

PW2, the scaling down of the disability to 12% is

erroneous and wrong. On a re-appreciation of Exhibit A9

read with the oral testimony of PW2, I hold that the

petitioner has the functional disability of 15%. MACA NOs. 1220 & 2520 OF 2012

Multiplier

17. The petitioner was aged 38 years at the time of

accident. In the light of the law laid down in Sarla

Verma and Others v. Delhi Transport Corporation

and another[(2009) 6 SCC 121], the relevant

multiplier to be adopted is '15'.

Loss due to disability

18. Taking into account the above mentioned

factors, namely, the notional monthly income of the

petitioner at Rs.8000/-, his functional disability at 15%

and the multiplier at '15', I award the petitioner an

amount of Rs.2,16,000/- towards 'loss due to disability,

instead of Rs.1,72,800/- awarded by the Tribunal.

By-stander expenses and extra nourishment.

19. It is on record as evidenced by Exhibits A5, A8

and A8(a), A13 and A13(a) discharge summaries that the

petitioner was treated as an inpatient for a period of 63 MACA NOs. 1220 & 2520 OF 2012

days. The Tribunal has awarded an amount of Rs.9300/-

towards by-stander expenses, which is on the lower side.

Taking into account the fact that the petitioner was

treated as an inpatient for a period 63 days from 2003 to

2009, I hold he is entitled for by-stander expenses at

Rs.250/- per day for a period of 63 days, which works out

to Rs.15,750/- instead of Rs.9300/- awarded by the

Tribunal. Similarly, I award the petitioner an amount of

Rs.150/- per day for a period of 63 days towards extra

nourishment, which comes to Rs. 9,450/-.

Future treatment

20. It is evident from Exhibit A13 that the petitioner

had removed the implants between 3/4/2009 to

13/4/2009. Although he has produced medical bills to

prove the expenditure involved, the Tribunal for the

reason that there was no nexus between the treatment

that took place in the year 2009 and the accident that MACA NOs. 1220 & 2520 OF 2012

took place in the year 2003, declined to award any

amount.

21. On a consideration of the serious nature of

injuries suffered by the petitioner and the fact that his

femur implant was removed only in the year 2009, I

award the appellant an amount of Rs.25,000/- towards

future prospects. However, the said amount shall not

carry interest.

Pain and sufferings and loss of amenities

22. The petitioner had claimed an amount of

Rs.1,00,000/- under the head 'pain and sufferings' and

Rs.75,000/- under the head 'loss of amenities'. The

Tribunal awarded an amount of Rs.25,000/- and

Rs.15,000/-, respectively under the two heads.

23. Taking into account the serious nature of

injuries sustained by the petitioner, that he was treated

as an inpatient for a period of 63 days, that he was MACA NOs. 1220 & 2520 OF 2012

indisposed for a period of 6 months, and that he has

suffered a functional disability of 15%, I award the

petitioner a further amount of Rs.25,000/- under the

head ' pain and sufferings' and Rs.10,000/- under the

head loss of amenities. I also award him an amount of

Rs.500/- towards damage to clothing.

24. With respect to the amounts awarded under the

heads 'loss of earnings', 'transportation expenses', and

'medical expenses', I find that the Tribunal has awarded

reasonable and just compensation.

25. On an over all re-appreciation of the pleadings

and materials on record and the law referred to in the

afore-cited decisions, I do not find any merit in MACA

No.2520/2012, but find that the petitioner is entitled for

enhancement of compensation in MACA No.1220/2012

as modified and re-calculated above, and given in the

table below for easy reference.

 MACA NOs. 1220 & 2520 OF 2012


      SI.            Head of claim         Amount       Amounts
                                          awarded (in   modified and
      No                                    rupees)     recalculated
                                                        by this Court


      1     Loss of earnings                48000          48000


      2     Transportation                   3000           3000





      4     By-stander expenses              9300          15750


      5     Extra nourishment                 0             9450


      6     Medical expenses                98019          98019


      7     Pain and sufferings             25000          50000


      8     Loss of amenities               15000          25000


      9     Future treatment                  0            25000


     10     Loss due to disability         172800          216000


            Total                         3,71,190/-       490719
                                          rounded to
                                           371120/-

In the result, I dismiss MACA No.2520/2012 and

partly allow MACA No.1220/2012, by enhancing the

compensation by a further amount of Rs.1,19,599/-, out

of which Rs.94,599/- shall carry interest at the rate of MACA NOs. 1220 & 2520 OF 2012

8% per annum from the date of petition till the date of

deposit, and a cost of Rs.15000/-. The third respondent

is ordered to deposit the enhanced compensation with

interest as calculated above and cost before the

Tribunal within sixty days from the date of receipt of a

certified copy of the judgment. Immediately on the

compensation amount being deposited, the Tribunal

shall disburse the deposited amount to the petitioner in