Kerala High Court
The New India Assurance Company ... vs Sudheer on 10 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
MACA NO. 2067 OF 2017
AGAINST THE ORDER/JUDGMENT IN OPMV 2730/2012 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, THRISSUR
APPELLANT/3RD RESPONDENT IN OP(MV) No.2730 OF 2012:
THE NEW INDIA ASSURANCE COMPANY LTD.,
PERINCHERRY BUILDING, ROUND NORTH,THRISSUR
-680001, REPRESENTED BY ITS MANAGER,REGIONAL
OFFICE, M.G ROAD, ERNAKULAM.
BY ADV.
SRI.SEBASTIAN VARGHESE(K/141/2000)
RESPONDENT/PETITIONER IN OP(MV) 2730 OF 2012:
SUDHEER
S/O IBRAHIM, AGED 42 YEARS,AALAMPARAMBIL HOUSE,
LOKAMALLWESARAM VILLAGE,DESOM, KODUNGALLUR PO,
THRISSUR - 680001.
BY ADV.SRI.SHEJI P ABRAHAM
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 03.02.2023, ALONG WITH MACA.2083/2017,
THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING:
MACA Nos.2067 & 2083 of 2017 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
MACA NO. 2083 OF 2017
AGAINST THE ORDER/JUDGMENT IN OPMV 2730/2012 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL, THRISSUR
APPELLANT/PETITIONER:
SUDHEER
AGED 42 YEARS
S/O IBRAHIM, AALAMPARAMBIL HOUSE,
LOKAMALLWESARAM VILLAGE DESOM, KODUNGALLUR PO,
THRISSUR.
BY ADV SRI.SHEJI P.ABRAHAM
RESPONDENTS/RESPONDENTS:
1 DASAN
S/O SUBRAMANIAN,AGED 57 YEARS, THAITHARA HOUSE,
PARAMBIKULANGARA, METHALA, KODUNGALLUR PO,
THRISSUR - 680664.
2 THE MANAGING PARTNER
SAFA ENTERPRISES, AZHIKODE PO-680673,TEMPORARY
ADDRESS: ABDUL JALEEL,POOVATHUMPARAMBIL HOUSE,
ERIYAD G.P.
3 THE NEW INDIA INSURNCE CO.LTD
PERINCHERY BLDG, ROUND NORTH,THIRSSSUR.680001.
BY ADV.
SRI.SEBASTIAN VARGHESE(K/141/2000)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 03.02.2023, ALONG WITH MACA.2067/2017,
THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING:
MACA Nos.2067 & 2083 of 2017 3
SOPHY THOMAS, J.
------------------------------------
MACA Nos.2067 & 2083 of 2017
------------------------------------
Dated this the 10th day of February, 2023
JUDGMENT
These appeals arise out of the Award in OP(MV) No.2730
of 2012 on the file of Motor Accidents Claims Tribunal, Thrissur.
The claimant is the appellant in MACA No.2083 of 2017 and
the 3rd respondent/insurer is the appellant in MACA No.2067 of
2017. The claimant is assailing the award on the ground of
inadequacy of compensation and the insurer is against the
excessive nature of the compensation awarded by the Tribunal.
2. The claimant/appellant in MACA No.2083 of 2017 met
with a road traffic accident on 07.10.2012 at 3.30 p.m, while
he was riding his motorbike. According to him, KL-47/A-444
lorry driven by the 1st respondent in a rash and negligent
manner dashed against his motorcycle and he sustained
serious injuries, resulting in amputation of his left leg below
knee. He was a 37 year old coolie earning monthly income of
Rs.9,000/- and he became totally disabled due to the
accident. He approached the Tribunal claiming compensation
of Rs.30 lakh. But, the Tribunal awarded only Rs.18,60,600/-.
According to him, it was not the just compensation to be
awarded and hence he filed MACA No.2083 of 2017,
challenging the quantum.
3. According to the insurer/appellant in MACA No.2067
of 2017, since the doctor certified the disability of the injured
as 50%, the Tribunal ought not have fixed the functional
disability @100%, while awarding compensation for disability.
Moreover, the Tribunal awarded Rs.3 lakh for future treatment,
without any factual finding, and moreover, 9% interest was
awarded from the date of petition, for an amount which was
yet to be incurred in future. The compensation awarded under
other heads also is challenged as it is excessive.
4. The owner and driver of the offending vehicle
remained ex parte throughout.
5. No oral evidence was adduced before the Tribunal
from either side. Exts.A1 to A18 and B1 were seen marked.
6. Heard learned counsel Sri.Sebastian Varghese,
appearing for the appellant in MACA No.2067 of 2017
(respondent in MACA No.2083 of 2017) and learned counsel
Sri.Sheji P Abraham, appearing for the appellant in MACA
No.2083 of 2017(respondent in MACA No.2067 of 2017).
7. The accident, injuries and the policy of the offending
vehicle are not in dispute. The common challenge in both the
appeals, is with respect to the quantum of compensation
awarded.
8. Let us have a reappraisal of the facts and evidence, to
find out whether any interference is warranted in the
impugned award.
9. Learned counsel Sri.Sheji P Abraham, appearing for
the injured/appellant in MACA No.2083 of 2017 would argue
that, the appellant was a driver by profession earning monthly
income of Rs.18,000/-, as borne out from Ext.A10 salary
certificate. The Tribunal fixed a notional income of Rs.5,000/-
only, and that was not fair according to him. But, the original
claim petition filed by the claimant will show that, he was only
a coolie earning monthly income of Rs.9,000/-. So, Ext.A10
document showing that he was a driver earning monthly
income of Rs.18,000/- is not liable to be accepted as a genuine
document. No oral evidence was adduced from the side of the
claimant to say that, the job and the income stated in the
claim petition were not correct or to show that he was working
as a driver earning monthly income of Rs.18,000/-.
10. The Tribunal found that the claimant was aged 42 at
the time of accident. But, his claim petition was to the effect
that he was aged only 37. The FIR also will show his age as
37. At the time of hearing the appeal, learned counsel for the
appellant/claimant produced the original birth certificate and
aadhar card of the claimant showing his date of birth as
30.11.1975. The insurer is not disputing the age of the
claimant shown in his Birth Certificate and so, it can be taken
as 37, as stated in the claim petition. The original claim of the
claimant was that he was earning monthly income of
Rs.9,000/-. Though there is no evidence to prove his monthly
income from his coolie work, going by the decision
Ramchandrappa vs. Manager, Royal Sundaram Alliance
Insurance Company Limited (AIR 2011 SC 2951), in the
year 2012, a 37 year old coolie was eligible to get his notional
income fixed at Rs.8,500/-. Exts.A11 and A12 certificates will
show that he was having a driving licence and so he was
eligible to get the job of a driver in future also, which is a
skilled job. Considering that aspect, this Court is inclined to fix
his notional income at Rs.9,000/-, as claimed in the claim
petition.
11. Learned Tribunal assessed compensation for loss of
earning for six months. Since the left leg of the claimant was
amputated below knee, the loss of earning assessed for six
months is justifiable. @ Rs.9000/- per month, he was eligible
to get Rs.54,000/- (9000x6). Since he was already awarded
Rs.30,000/- under the head 'loss of earning', he is eligible to
get the balance Rs.24,000/-.
12. Ext.A7 disability certificate is to the effect that the
injured/appellant suffered disability of 50% as his left leg was
amputated below knee. Learned Tribunal took his functional
disability as 100% and awarded compensation, which is under
challenge by the insurer. Learned counsel for the
claimant/appellant in MACA No.2083 of 2017 submitted that,
the claimant was a driver by profession and since his left leg
was amputated below the knee, he could never work as a
driver and so, the Tribunal was justified in taking his functional
disability as 100%. But, as we have seen, though the claimant
produced copy of his driving licence before the Tribunal, in the
original claim petition, his case was that he was a coolie
earning monthly income of Rs.9,000/-. That fact was not
disowned by him at any point of time, and no amendment also
was effected, though he produced Ext.A10 salary certificate
saying that he was a driver by profession. If he was a coolie,
even if he lost his left leg below knee, it could not be said that
he was not able to do any other job to eke out a living. So,
the functional disability taken as 100% by the Tribunal is really
excessive.
13. The insurer has drawn the attention of this Court to
the fact that, as per Workmen's Compensation Act also, the
disability due to amputation of a leg below knee is only 50%.
Ext.A7 disability certificate was issued by an Assistant
Professor of Orthopaedics attached to Govt. Medical College,
Thrissur and he assessed 50% permanent disability with
respect to whole body, because of traumatic amputation of left
leg and foot below knee. Since the claimant was only a 37
year old young man having future prospects, especially when
he was having a driving licence also in his name, he was
eligible to go for other avocations also in future. Considering
that fact, this Court is inclined to take his functional disability
as 60%.
14. We have fixed the notional income of the claimant @
Rs.9,000/- per month. Since he suffered permanent functional
disability of 60% by amputation of his left leg below knee, he
is eligible to get 40% enhancement towards future prospects,
as he was aged only 37, and self employed. So, his monthly
income, for the purpose of assessing compensation for
disability, can be taken as Rs.12,600/-. The multiplier
applicable is 15, as he was aged only 37. So, the
compensation for disability can be reworked as Rs.13,60,800/-
(12600x12x15x60/100). He was already paid compensation of
Rs.10,92,000/- under the head compensation for disability and
so, he is eligible to get the balance Rs.2,68,800/- under that
head.
15. The insurer is assailing the compensation of Rs.2
lakh awarded for pain and suffering. It is true that, in the
accident, the claimant suffered serious injuries including
mangled left foot, which resulted in traumatic amputation of
left leg below knee, and also fracture of calcanium and lateral
malleolus. The claimant was admitted in hospital for 12 days.
The accident was in the year 2012. Considering all these
facts, the compensation of Rs.2 lakh awarded under the head
pain and suffering seems to be excessive and this Court is
inclined to fix the compensation for pain and suffering at
Rs.1.5 lakh. So, the claimant/appellant in MACA No.2083 of
2017 has to refund Rs.50,000/- under that head.
16. The insurer would also contend that the learned
Tribunal awarded Rs.3 lakh for future treatment, without any
factual basis, and moreover, awarded interest for that amount
which was not yet incurred. Exts.A8 and A9, the cash receipt
and quotation, would show that the injured/claimant had spent
a sum of Rs.55,250/- towards artificial limb. It is true that, in
future also, he had to expend some amount for replacing and
maintaining the artificial limb. No evidence has been adduced
by the claimant to show even the approximate expenses that
could have been spent in future, for his artificial limb. There is
no factual basis for Rs.3 lakh awarded by the Tribunal towards
future treatment expenses, or in awarding interest for the
amount to be expended in future, from the date of petition.
Relying on Exts.A8 and A9, this Court is inclined to award
Rs.1,55,250/- for future treatment. So, he has to refund
Rs.144,750/- as excess amount awarded under the head
future treatment expenses. It has come out in evidence that,
he has already spent Rs.55,250/- for artificial limb and that
amount has to carry interest. The balance Rs.1 lakh may not
carry interest from the date of petition, as pointed out by the
insurer, as those expenses are to be incurred in future.
17. The compensation awarded for bystander expenses
was only Rs.3,600/-, though the claim was Rs.25,000/-.
Learned Tribunal, finding that the claimant was hospitalised
only for 12 days, @ Rs.300/- per day, Rs.3,600/- was
awarded. Since his left leg was amputated below knee,
though he was hospitalised only for 12 days, he might have
been in need of a bystander for his ordinary pursuits at least
for three months. Taking Rs.300/- per day for three months,
he was eligible to get Rs.27,000/-. But, as his claim is only
Rs.25,000/-, that amount could have been awarded towards
bystander expenses. Since he was already paid Rs.3,600/-
under that head, he is eligible to get the balance Rs.21,400/-.
18. The compensation awarded under all other heads
seems to be reasonable as far as the claimant/appellant in
MACA No.2083 of 2017 is concerned, and nothing was shown
by the insurer also, to show that the compensation awarded
under other heads requires any modification.
Head of claim Amount Amount Amounts Difference to
awarded by awarded in deducted in be drawn as
the Tribunal appeal appeal enhanced
(1) (2) (3) (4) compensation
Loss of earning Rs.30,000/- Rs.54,000/- - Rs.24,000/-
Compensation Rs.10,92,000/- Rs.13,60,800/- - Rs.2,68,800/-
for disability
Pain and Rs.2,00,000/- Rs.1,50,000/- Rs.50,000/- -
suffering
Future Rs.3,00,000/- Rs.1,55,250/- Rs.1,44,750/- -
treatment
Bystander Rs.3,600/- Rs.25,000/- - Rs.21,400/-
expenses
Total Rs.1,94,750/- Rs.3,14,200/-
Enhanced compensation (3,14,200-1,94,750) Rs.1,19,450/-
Rounded off to Rs.1,20,000/-
19. So, both the appeals are liable to be allowed in part,
enhancing and reducing the compensation awarded under
various heads, to the extent shown above. While modifying
the compensation as aforesaid, the claimant/appellant in MACA
No.2083 of 2017 is eligible to get enhanced compensation of
Rs.1,20,000/- [(24000+2,68,800+21400)-(50000+144750)].
The appellant in MACA No.2083 of 2017 is entitled to get
interest @ 9% as awarded by the Tribunal but it is clarified
that the compensation amount of Rs.1 lakh awarded for future
treatment will not carry interest.
20. It is given to understand that, the Insurance
Company deposited half of the compensation amount including
interest and costs before the Tribunal, for getting interim stay
as prayed for in MACA No.2067 of 2017. So, the
insurer/appellant in MACA No.2067 of 2017 is directed to
deposit the balance amount along with the enhanced
compensation awarded in MACA No.2083 of 2017, in the Bank
Account of the appellant, with interest at 9% per annum from
the date of petition till the date of deposit (future treatment
expenses of Rs.1 lakh will not carry any interest), within a
period of two months from the date of receipt of a copy of this
judgment. The deposit must be in terms of the directives
issued by this Court in Circular No.3 of 2019 dated 06/09/2019
and clarified in O.M.No.D1/62475/2016 dated 07/11/2019
after deducting the liabilities, if any, of the appellant/claimant
towards Tax, balance court fee and legal benefit fund.
Accordingly, both the appeals are allowed in part,
modifying the compensation amount to the extent as stated
above.
Sd/-
SOPHY THOMAS
JUDGE
smp
