Kerala High Court

Yacob T.P. @ Jacob T.P vs Biju Varghese on 24 February, 2023

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
                    MACA NO. 1239 OF 2017
 AGAINST THE ORDER/JUDGMENT OPMV 544/2015 OF MOTOR ACCIDENT
                CLAIMS TRIBUNAL MUVATTUPUZHA
APPELLANT/PETITIONER:

         YACOB T.P. @ JACOB T.P.
         AGED 58 YEARS, S/O. PAULOSE, THURUTHIYIL HOUSE,
         KUTTIPADAM, ALLAPRA P.O.,VENGOLA.
         NOW RESIDING AT MANACKAPPARA BHAGOM, KUNNACKAL
         KARA, VALAKOM VILLAGE, MUVATTUPUZHA TALUK,
         ERNAKULAM DISTRICT.
         BY ADVS.
         SRI.DILEEP VARGHESE
         SRI.K.K.KURUVILLA
         SMT.TESMY VARGHEESE

RESPONDENTS/RESPONDENTS:

    1    BIJU VARGHESE
         S/O. A.A. VARGHESE,
         EREKKATTUKUZHIYIL HOUSE, KARUKAPPILLY P.O.,
         KOLENCHERY, ERNAKULAM DISTRICT - 682 311.
    2    VIJI P. KURIAKOSE
         PANDARAMKUDIYIL HOUSE, NEAR GIRIMUKAL,
         KURISUPALLI, EZHAKARANAD KARA, MANEED VILLAGE,
         ERNAKULAM DISTRICT - 682 308.
    3    NATIONAL INSURANCE CO.LTD
         KOLENCHERRY - 682 311.
         SRI.SEBASTIAN VARGHESE-SC



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.02.2023, ALONG WITH MACA.1352/2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.No.1239 of 2017 & 1352 of 2017

                                         :2:




               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                         PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
                             MACA NO. 1352 OF 2017
  AGAINST THE ORDER/JUDGMENT OPMV 544/2015 OF MOTOR ACCIDENT
                        CLAIMS TRIBUNAL MUVATTUPUZHA
APPELLANT/3RD RESPONDENT IN O.P.(M.V.) NO.544/15:

              NATIONAL INSURANCE COMPANY LTD.
              KOLENCHERRY BRANCH, REPRESENTED BY ITS MANAGER,
              REGIONAL OFFICE, M.G ROAD, ERNAKULAM.
              BY ADV SRI.LAL GEORGE

RESPONDENTS/PETITIONERS AND RESPONDENT 1 & 2 IN O.P.(M.V.)
544/15:

      1       YACOB T.P. @ JACOB T.P.,
              S/O. PAULOSE, AGED 60 YEARS, THURUTHIYIL HOUSE,
              KUTTIPADAM, ALLAPRA P.O, VENGOLA,
              NOW RESIDING AT MANACKAPPARA BAGOM,
              KUNNACKAL KARA, VALAKOM VILLAGE, MUVATTUPUZHA
              TALUK, ERNAKULAM DISTRICT, PIN - 686661
      2       BIJU VARGHESE
              S/O. A.A VARGHESE,
              ERKKATTUKUZHIYIL HOUSE, KARUKAPPILLY P.O
              KOLENCHERY, ERNAKULAM DISTRICT - 682311
      3       VIJI P. KURIAKOSE
              PANDARAMKUDIYIL HOUSE, NEAR GIRIMUKAL,
              KURISUPALLI, EZHAKARANAD KARA, MANEED VILLAGE,
              ERNAKULAM DISTRICT - 682308.
              BY ADVS.
              SRI.DILEEP VARGHESE
              SRI.K.K.KURUVILLA



       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.02.2023, ALONG WITH MACA.1239/2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.No.1239 of 2017 & 1352 of 2017

                                         :3:


                   DEVAN RAMACHANDRAN, J.
               =========================
             M.A.C.A.Nos. 1239 of 2017 & 1352 of 2017
              ==========================
             Dated this the 24th day of February, 2023


                                   JUDGMENT

Among the afore two appeals, MACA No.1239 of 2017 has

been filed by a person who was injured in a road accident on

18.12.2014 - while he was riding a scooter, when it was hit by a

"Tipper Lorry", driven in a rash and negligent manner. The

injured/claimant filed OP(MV)No.544/2015 before the Motor

Accidents Claims Tribunal, Muvattupuzha (the 'Tribunal' for short),

seeking compensation to the extent of Rs.51,12,000/- and limited to

Rs.30,00,000/-, but which has been awarded only Rs.22,38,070/-.

He thus impugns the Award of the Tribunal as being inadequate.

2. While so, MACA No.1352 of 2017 has been filed by the

National Insurance Company, which insured the offending vehicle,

again impugning the Award of the Tribunal, saying that the

compensation awarded is excessive.

3. I have heard Sri.Dileep Varghese - learned counsel for the

claimant and Sri.Sebastian Varghese - learned Standing Counsel

for the National Insurance Company.

4. Sri.Dileep Varghese - learned counsel for the claimant,

vehemently argued that the notional income adopted by the

Tribunal in favour of his client was grossly inadequate because, M.A.C.A.No.1239 of 2017 & 1352 of 2017

Ext.A9 - Certificate issued by the employer and spoken to by the

person who issued it, namely PW2, would establish that he was

drawing Rs.20,000/- per month. He then added that the Tribunal

has erred in reducing the percentile of disability suffered by his

client to 80%, even though Ext.A16 - Disability Certificate, issued

by PW3 doctor, certified it to be 88.4%. He argued that if this had

been taken, then the compensation for "permanent disability"

would have been much higher.

5. Per contra, Sri.Sebastian Varghese - learned Standing

Counsel for the Insurance Company, argued that the compensation

awarded by the Tribunal under the heads "future medical

expenses", "loss of amenities" and "loss of earning power" is

excessive and disproportionate; and, prayed that same be deleted.

He then asserted that the compensation awarded by the Tribunal

under the head "permanent disability" is without error.

6. I have evaluated the afore rival submissions on the

touchstone of various materials and evidence on record - copies of

which have been handed over across the Bar by the learned

counsel for the parties, with the express consent that they can be

acted upon by this Court without dispute.

7. I will first deal with the question of notional income of the

claimant. Going by Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC M.A.C.A.No.1239 of 2017 & 1352 of 2017

236], even in the case of a person with an unascertainable income

in the year 2014 - when the accident happened - the minimum

amount to be adopted is Rs.11,000/-. I, therefore, fail to

understand why the Tribunal did not accept at least the same. That

said, I find favour with the view of the Tribunal that Ext.A9 -

Employment Certificate could not have been relied upon because it

was not supported by any other relevant document to show the

actual payment of wages of Rs.20,000/- to the claimant by his

employer, namely PW2. Normally, a certificate of that nature ought

to have been corroborated by evidence to establish actual payment,

including vouchers, receipts, tax documents and such other. In the

absence of any such, Ext.A9 cannot be accepted and the Tribunal

has acted correctly.

8. Coming to the question of the percentile of disability, I

notice that the learned Tribunal has reduced it to 80% from 88.4%

as certified by PW3 doctor in Ext.A16 - Disability Certificate. No

doubt, Ext.A16 has been issued by a Medical Board, but the

competence of PW3 has not been impeached by the Insurance

Company, even when he was cross-examined. The Tribunal has,

however, reduced it to 80%, under the impression that, as per

"Government of India Guidelines", if the percentage of disability of

an arm is only 90%, then it will have to be construed as being 45%

for the whole body. I am afraid that, this reasoning of the Tribunal M.A.C.A.No.1239 of 2017 & 1352 of 2017

is untenable because of the fact that the claimant had suffered an

amputation of left mid arm and that he was working as a site

supervisor in a construction company. It is apodictic that his

avocation has been greatly impacted, because a site supervisor is

not expected to merely stand and watch, but to be an active

participant in everything that happens in the construction site,

which is to say, to be part of every activity which even an ordinary

worker does. When he loses an arm, it really means that his

capacity to be a site supervisor is impeded to a large extent; and in

any event, I notice that the Tribunal has taken his disability to be

80%, which means that it has also understood this in its proper

perspective. Therefore, all which remains is to verify whether the

reduction from 88.4% - as certified in Ext.A16 - to 80% is justified.

I cannot find so, and I am of the view that a more generous view

ought to have been taken. I, therefore, propose the disability to be

85%.

9. That takes me to the contentions of the Insurance Company

in MACA No.1352 of 2017. As I have said above, Sri.Sebastian

Varghese argues that the amount granted by the Tribunal under

the head "loss of amenities" is excessive; while no sum towards

"loss of earning power" ought to have been granted. He also has a

case that, in the absence of any evidence to show future treatment,

the amount of Rs.1,00,000/- ought not to have been offered. M.A.C.A.No.1239 of 2017 & 1352 of 2017

10. As regards the question of compensation under "loss of

amenities", I do not intend to interfere with the findings of the

Tribunal because of the same reasons I have said above, namely,

that the claimant has suffered amputation of his left arm. This is

not trivial, and it can cause extreme trauma and agony to the

person who has suffered it. It may not be possible for another

person, not in his position, to understand it in its proper

perspective.

11. Relating to the "loss of earning power", I find some force

in the submissions of Sri.Sebastian Varghese, because an amount

of Rs.80,000/- had already been granted by the Tribunal under the

head "loss of earnings". Of course, this will have to be now

revised, because this Court intends to take the notional income of

the claimant to be Rs.11,000/-. I am, therefore, of the view that the

subsequent Award under the head "loss of earning power" was

unnecessary.

12. Finally, the argument that no future medical expenses had

been proven cannot be accepted because Ext.A14 - Fitment

proposal issued by M/s.Otto Bock Health Care, Mumbai, is

unequivocal to the effect that the petitioner would require a

minimum amount of Rs.1,00,000/-, for maintenance and future care

of prosthetic arm. I do not, therefore, propose to interfere with

this at all.

M.A.C.A.No.1239 of 2017 & 1352 of 2017

Resultantly, these appeals are allowed in part in the following

manner:

(a) The compensation to the claimant under the head

"loss of earning" is revised to Rs.88,000/-, taking his

notional income to be Rs.11,000/- as per

Ramachandrappa (supra).

(b) The compensation under the head "permanent

disability" is enhanced to Rs.10,09,800/-, again taking

the notional income of the appellant to be Rs.11,000/-

and his permanent disability to be 85%.